Filling the legislative gap

What began as a routine application ended in a ruling that would finally set out the principles that a judge must follow in Newfoundland and Labrador when deciding whether to grant an order granting guardianship of a person.

In the 2019 ruling Re A.A., the province's Court of Appeal ruled that the Supreme Court Trial Division can determine whether to grant guardianship of the person.

"Now we have principles that are analogous to the principles that are reflected in the legislation of other provinces, and as reflected in the United Nations Convention on the Rights of Persons with Disabilities," says Douglas Wright, counsel at Cox & Palmer, who was part of the team that argued the case, and which also included associate Melissa Saunders.

At first, there was nothing especially unusual about the case. The family of an adult male with Down Syndrome applied for guardianship to get medical records from an out-of-province treatment.

Newfoundland and Labrador has a decades-old law concerning the custody and management of a disabled person’s property and finances, but there’s no provincial statute that can grant authority over guardianship of the person.

In 2017, the Supreme Court of Newfoundland and Labrador dismissed a request by family members for such guardianship on the grounds that it had no jurisdiction to do so. 

Cox & Palmer took the ruling to the Court of Appeal as a pro bono matter. "This matter would never have gone to the Court of Appeal if it couldn't be done on a pro bono basis," says Wright. 

The firm's research team reviewed old legal authorities and tracked down evidence from a professor in England. According to Wright, they found an 1824 statute of Parliament that allowed the Newfoundland Supreme Court to appoint guardians and keepers of the estate and persons of mentally-disabled individuals – antiquatedly referred to as "natural fools." 

In addition to pressing the Court of Appeal for a decision on guardianship of the person for their client, Cox & Palmer's legal team wanted to shine a light on how the province's legislature had never addressed the issue, as well as the unfortunate language used by the old Imperial statute.

The Court of Appeal confirmed that the Supreme Court of Newfoundland and Labrador has statutory authority and inherent jurisdiction under the parens patriae doctrine to make orders for general guardianship of the person. 

While noting that each request should be assessed on a case-by-case basis, the Court of Appeal outlined several guiding principles for guardianship, including on the need to assist individuals in making life choices, on the scope of powers of a guardianship order, and how to remove guardians.

For its efforts, Cox & Palmer is a nominee for the Canadian Law Awards Pro Bono Initiative of the Year. According to Wright, the case is only one example among many that highlight his firm's pro bono culture across the four Atlantic provinces. Cox & Palmer leaves it to the lawyers to decide for themselves whether to take on public interest cases or matters for individuals in need of legal assistance. 

The A.A. ruling made a real contribution to advancing the interests of the disabled community in Newfoundland and Labrador, says Wright.

So far, the provincial government has not yet said it will enact a new law in response to the legislative gap. Until it does, "at least we have a backstop," says Wright. "It's a good backstop."