25. Justice dismisses 3 Appeals by Minister of Community Services

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Justice dismisses 3 Appeals by Minister of Community Services

NOVA SCOTIA COURT OF APPEAL
Citation: A.K.S. v. Nova Scotia (Minister of Community Services),
2007 NSCA 86

Date: 2007,07,19
Docket: CA 279542
Registry: Halifax

Between:

Minister of Community Services

Appellant

v.

A.K.S.

Respondent

Restriction on Publication: Pursuant to s. 94(1) Children and Family
Services Act.

Judge: The Honourable Justice M. Jill Hamilton

[The Honourable Marlene Jill Hamilton of the Nova Scotia Supreme Court (Trial Division) was appointed a Judge of the Nova Scotia Court of Appeal on Oct. 31, 2001.]

Appeal Heard: June 15, 2007

Subject: Secure treatment, s. 56(3) of the Children and Family Services Act.

Summary: The Family Court judge refused to place a 14 year old who was in the temporary care and custody of the Minister in secure custody for 30 days. There was no formal medical diagnosis before the judge relating the young person. Both parties took the position no formal medical diagnosis was required. The judge dismissed the Minister’s application on the basis the evidence before her did not satisfy her that the youth was suffering from an emotional or behavioural disorder as required by s.56(3)(a) of the Act.

Issue: Did the judge err in holding that there must be a formal medical diagnosis by a psychologist or psychiatrist that the youth was suffering from a specific emotional or behavioural disorder before secure treatment could be ordered? Did the judge err by overlooking or giving no weight to material evidence?

Result: Appeal dismissed. The judge did not find that there was a prerequisite for a formal medical diagnosis. Nor did she make a palpable and overriding error by overlooking or giving no weight to material evidence.

This information sheet does not form part of the court’s judgment. Quotes
must be from the judgment, not this cover sheet. The full court judgment
consists of 9 pages.

NOVA SCOTIA COURT OF APPEAL
Citation: K.L.M. v. Nova Scotia (Community Services),
2007 NSCA 77

Date: 2007,06,26
Docket: CA 280831
Registry: Halifax

Between:

K.L.M. & D.M.

Appellants

v.

Minister of Community Services

Respondent

Restriction on publication: Pursuant to s. 94(1) Children and Family
Services Act.

Judge: The Honourable Justice M. Jill Hamilton

Application Heard: June 14, 2007, in Halifax, Nova Scotia, In Chambers

Held: Application dismissed

Counsel: Fergus Ford & Kelly Ryan, Articled Clerk,
for the appellant K.L.M.
D.M. unrepresented appellant, not appearing
Katherine Carrigan, for the respondent

Decision:

[1] The appellants are the parents of a young son who Justice N. M. Scaravelli
of the Nova Scotia Supreme Court ordered be placed in the permanent care and
custody of the Minister by order dated April 10, 2007.

While unrepresented by counsel the parents filed a notice of appeal with the Court on May 10, 2007 in which they gave notice that they would be seeking dates for the hearing of their appeal in Chambers on May 17, 2007.

A copy of the notice of appeal was received by the Minister on May 11, 2007, one day after the Civil Procedure Rules require that the notice of appeal be served on her.

Neither parent appeared in Chambers on May 17. K.L.M. phoned the Court in advance and indicated they were seeking counsel.

The Minister indicated that the transcript of the hearing before Justice Scaravelli could not be made available to the appellants until July 3, 2007.

The matter was adjourned to May 24, 2007 when again neither parent appeared.

Following Chambers on May 24 the deputy registrar of the Court wrote to the
parents stating that they must attend Chambers on May 31, 2007 with or without
counsel or their appeal could be dismissed for failure to prosecute as the Minister
had indicated her wish to have the appeal dismissed for want of prosecution.

The parents did not appear on May 31 and the Minister advised that she would be
making an application to dismiss which she subsequently did.

By the time the Minister’s application was returnable on June 14, 2007, K.L.M. had retained counsel who filed an affidavit setting out the reasons for his client not appearing prior to that date. Neither D.M. nor counsel on his behalf has yet appeared.

[2] The Minister sought a dismissal of the appeal either

(1) on the basis the appeal was deemed to be dismissed pursuant to Rule 62.03A(4) because the parents did not appear in chambers within 10 days of filing their notice of appeal to have the dates set for the appeal to be heard or

(2) under Rule 62.17 because they failed to prosecute their
appeal in a timely fashion.

[3] Rule 62.03A provides:

(1) An appeal pursuant to section 49 of the Children and Family Services Act, shall be brought by filing a notice of appeal in Form 62.03A with the Registrar within thirty (30) days of the date of the order appealed from.
(2) A notice of an appeal pursuant to section 49 of the Children and Family Services Act shall be served within the time prescribed by rule 62.03A(1) and as prescribed by rule 10.12, on the Minister of Community Services, the court officer of the court appealed from, and on all other parties in the proceeding in the court appealed from.
(3) The notice of appeal in an appeal pursuant to section 49 of the Children and Family Services Act, shall include a notice of intention to apply to a Judge to set down the appeal for hearing by the Court and to give directions as to the appeal book and factums to be filed by the parties with the Court for the appeal.
(4) The application shall be made to a Judge in Chambers no later than ten days
following the filing of the notice of appeal, failing which the appeal shall be deemed dismissed unless a Judge otherwise orders.
[Emphasis added]

[4] Rule 62.17 provides:
(1) If an appellant fails to observe rule 62 in preparation or prosecution of the appeal, the respondent may apply to a judge to set down the appeal for hearing or, if seven (7) days' notice has been given, to dismiss the appeal.
. . .
(3) If rule 62 has not been complied with in the preparation or the prosecution of an appeal, a Judge on the application of a party or of the registrar may direct perfection of the appeal, or may set the appeal down for hearing or, on seven (7) days' notice to the parties, may dismiss the appeal.
(4) In this rule 62.17 a "perfected appeal" means one wherein the appellant has complied with the rules as to (a) the form and service of the notice of appeal, (b) the ordering of copies of the transcript of evidence, in compliance with rule 62.02(4), (c) filing and delivery of the appeal book (or printed case in the Supreme Court of Canada form) and of the appellant's factum.
[Emphasis added]

[5] I indicated in Chambers that I was not satisfied the appeal was deemed to have been dismissed and that I would not dismiss it. These are my reasons.

[6] With respect to whether the appeal is deemed dismissed, the parents applied for the dates to be set within the 10 day time frame set out in Rule 62.03A(4). Their application for dates was adjourned until the dates were finally set on June 14, 2007, by which time K.L.M. was able to retain counsel. The appeal was not deemed to be dismissed.

[7] With respect to whether the appeal should be dismissed for want of prosecution, the Minister’s position was that the parents had not served her as required in Rule 62.03(2) and that they had failed to attend Chambers on three successive dates to have the date set for the hearing of the appeal. She argued this was evidence that they had no intention to continue their appeal prior to K.L.M.'s retention of counsel. With respect to D.M., the Minister argued he has not yet shown any intention to continue with his appeal as he has not appeared in person or
through counsel to date. She argued these are serious failures given the short time frames provided in the Children and Family Services Act, S.N.S. 1990, c. 5 generally and for appeals in particular. She argued it is in the child's best interests that the appeal be dismissed at this point as it would lead to an earlier adoption placement which would bring stability for the child. She argued that the grounds of appeal are unsustainable.

[8] The affidavit filed by K.L.M.’s counsel satisfies me that K.L.M. always intended to continue with her appeal, felt inadequate to appear in Chambers without counsel and focussed her energy on retaining counsel. While that attitude wasted the resources of the Minister and the Court, it is not sufficient to warrant dismissing her appeal given the significant consequences to her of such a dismissal. Service of the notice of appeal on the Minister in accordance with the Rules is important given the Minister’s responsibility to look after the best interests of the child which may include placing him for adoption at the earliest possible time but the one day delay in this case is not sufficient to warrant dismissal. As it happens, none of the actions of K.L.M. has had the practical effect of delaying the date of the hearing of her appeal.

[9] It is not appropriate for me to comment on the merit of the grounds of appeal given the Minister’s notice that she will be making an application to quash the appeal on the basis it is frivolous, vexatious or without merit, which will be scheduled to be heard on the same date as the appeal.

[10] With respect to D.M.’s appeal, I am not satisfied there is any prejudice to the Minister in allowing his appeal to continue along with that of his wife despite the fact he has not attended Court to date for the purpose of prosecuting his appeal. It may be that D.M. did not realize he had to retain separate counsel. K.L.M.’s counsel agreed to bring this to his attention. The parents continue to live together. Similar issues will be relevant to both appeals. I see nothing to be gained from dismissing his appeal at this time as opposed to allowing it to continue along with
his wife’s.

[11] I would dismiss the Minister’s application.

Hamilton, J.A.

NOVA SCOTIA COURT OF APPEAL
Citation: Nova Scotia (Community Services) v. B.L.C.,
2007 NSCA 48

Date: 20070426
Docket: 276472
Registry: Halifax

Between:

Minister of Community Services

Appellant

v.

B.L.C.

Respondent

Restriction on publication: Pursuant to s. 94(1) of Childrens and Family Services Act

Judge: The Honourable Justice M. Jill Hamilton

Appeal Heard: April 12, 2007

Subject: Moot, Family law, Child protection, Section 44(1) of the Children and Family Services Act

Summary:

In a child protection matter, the Minister applied to have the mother referred for a parental capacity assessment with a psychological component. The Minister suggested referral to one assessor and the mother requested referral to a different one. No issue was raised as to the relative cost of the assessors and it was agreed all assessors were excellent and had done assessments for the Minister previously. The assessor recommended by the Minister indicated she could have her report ready earlier than the assessor requested by the mother. Both assessments could be ready well in advance of the trial dates, which had not been set, and the time limits provided in s. 45 of the CFSA. In a disposition order giving temporary care and control of the child to the Minister, the judge referred the mother for assessment to the assessor she requested. The parties agree the matter is now moot.

Issues:

Should the Court exercise its discretion to decide the merits of the moot appeal? If so, did the judge err in holding that she had jurisdiction to refer the mother for assessment to an assessor different from the one put forward by the Minister?

Result:

Court decided the moot jurisdiction issue but dismissed the appeal. Deciding this moot issue may highlight the very specific issue the judge decided. This issue was within the expertise of the Court, the adversarial context continued and the short time frames in the CFSA may make the issue generally evasive of appeal. The wording of s.44(1) of the CFSA, considered in light of the whole of the CFSA, indicates that in the specific fact situation in this appeal the judge had jurisdiction to refer the mother for assessment to an assessor other than the one recommended by the Minister. This was not an appeal dealing with the provision of services under s. 13 of the CFSA.

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 11 pages.

NOVA SCOTIA COURT OF APPEAL
Citation: Nova Scotia (Community Services) v. B.L.C.,
2007 NSCA 48

Date: 20070426
Docket: 276472
Registry: Halifax

Between:

Minister of Community Services

Appellant

v.

B.L.C.

Respondent

Restriction on publication: Pursuant to s. 94(1) of Childrens and Family Services Act

Judge(s): Roscoe, Bateman, Hamilton, JJ.A.

Appeal Heard: April 12, 2007, in Halifax, Nova Scotia

Held: Appeal dismissed, as per reasons for judgment of

Hamilton, J.A.; Roscoe & Bateman, JJ.A. concurring

Counsel: John Underhill & Mary S. Knox, for the appellant

Lola Gilmer & Karen L. Hudson, for the respondent

Restriction on publication: Pursuant to s. 94(1) Children and Family Services Act.

Reasons for judgment:
[1] The Minister of Community Services (Minister), appeals the decision of
Justice Beryl A. MacDonald of the Family Division of the Nova Scotia Supreme
Court in which, in a child protection matter, she referred the respondent mother,
B.L.C. (Ms. C.), for an assessment to Martin Whitzman and David Cox, assessors
requested by Ms. C., rather than by Suzanne Eakin, the assessor put forward by the Minister.

[2] Both parties agree the merits of this appeal are moot. By letter dated January
5, 2007 Mr. Whitzman indicated that he and Mr. Cox were no longer prepared to
conduct the assessment ordered because Ms. C. missed scheduled appointments.
On February 14 the Minister confirmed to the judge that she was no longer seeking
an assessment of Ms. C. and the trial dates for the Minister’s application for
permanent care and custody of the child were set for July 2007.

[3] Despite the mootness of the appeal, both parties submit that this Court should decide the merits of this appeal. For the reasons that follow I would decide the merits of the appeal confined to the issue of the judge’s jurisdiction in these circumstances to refer Ms. C. to an assessor other than the one recommended by the Minister, but would dismiss the appeal.

[4] By agreement of counsel an affidavit of Beth Archibald, a long-term caseworker with the Minister, was entered as further evidence on appeal. It simply confirmed that Mr. Whitzman was no longer prepared to conduct the assessment.

[5] The facts are set out in the judge’s decision (2006 NSSC 361). A short chronology will suffice for this decision:

May 25, 2006 Ms. C.'s daughter was taken into care.

May 29 Minister filed a protection application including a request that the judge refer Ms. C. for assessment.

May 31 5 day hearing held and order granted. Judge found there were reasonable and probable grounds that the child was in need of protective services and ordered that the child remain in the interim care and custody of the Minister.

June 16 Thirty day hearing held and order consented to. Ms. C. did not consent to an assessment. Issue of assessment deferred.

August 11 Pretrial prior to protection hearing. It was agreed that the protection order would issue but at a later time because the Minister wished to maximize the time periods available under the Childrens and Family Services Act, 1990, c. 5, s.1.

August 25 Protection order issued. The Minister was to continue to have interim care and custody of the child. There was no provision dealing with assessment. A pretrial was
scheduled for October 2.

Sept 28 Minister filed an application for a disposition order seeking permanent care and control of the child. It indicated a pretrial was set for October 2.

October 2 Pretrial conference. File notes and the judge's decision suggest the Minister was seeking a parental capacity assessment of Ms. C. to be conducted by Ms. Eakin who could commence her assessment in December, 2006 or January, 2007 and that Ms. C. still felt an assessment was unnecessary. The matter was adjourned to give Ms. C.'s counsel an opportunity to explore the outstanding issues with her client.

October 20 Letter from Ms. C.'s counsel stating that she understood "the Minister [was] requesting that Ms. [C.] participate in a Parental Capacity Assessment and would agree to an Order for Temporary Care and Custody at first disposition, to be reviewed upon completion of the Assessment Report." She indicated Ms. C. would agree to an assessment and requested that it be conducted by Mr. Whitzman who could commence work in December or January.

October 25 Pretrial conference. The Minister argued that Ms. Eakin was the better assessor in this case to do the assessment. She agreed Messrs. Whitzman and Cox were excellent and had done similar assessments for the Minister previously. The Minister never suggested that the judge should not name the assessor in her order. No issue was raised about the relative cost of the assessors. Ms. C. argued that she should be referred to Messrs. Whitzman and Cox because the assessment would be better if she felt she had some input into the process and if she did not feel the Minister was trying to force a particular assessor on her. There was no issue of timing as both assessors could commence work at approximately the same time. The judge ordered Messrs. Whitzman and Cox to do the assessment.

October 30 Mr. Whitzman advised that due to the involvement of Mr. Cox their report could not be completed until the middle or end of March, 2007.

November 1 Ms. Eakin advised her report could be available mid January.

November 20 The Minister sought a reconsideration of the judge's decision. By letter he argued Ms. C. should be referred to Ms. Eakin for the assessment because she could complete her report earlier and because the judge had no jurisdiction to refer Ms. C. to an assessor other than the one he recommended if he was going to be paying for it.

November 22 Pretrial on the reconsideration issue. The Minister orally confirmed his position. Ms. C. argued the time frame proposed by Ms. Eakin was unrealistic considering the Christmas period, that there was no problem having a report by mid or late March in terms of the time frames set out in the CFSA or in terms of the trial as the Minister had not applied for trial dates, that the extra time would allow her to make any necessary changes, and that with her having some input into the process the assessment would be better. The judge confirmed her original decision. The Minister requested a written decision.

November 29 Written decision released.

December 21 Disposition order issued giving the Minister temporary care and custody of the child and referring Ms. C. to Messrs. Whitzman and Cox for her assessment.

[6] The first issue is whether we should decide the merits of this moot appeal.

[7] Factors to be considered when deciding whether to hear a moot appeal are set out by the Supreme Court of Canada in

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342,

Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62; [2003] 3 S.C.R. 3 and

R. v Smith, 2004 SCC 14 [2004] 1 S.C.R. 385.

In Doucet-Boudreau, supra, the Court states:
18 . . . Writing for the Court, Sopinka J. outlined the following criteria for courts to consider in exercising discretion to hear a moot case (at pp. 358-63):
(1) the presence of an adversarial context;
(2) the concern for judicial economy; and
(3) the need for the Court to be sensitive to its role as the adjudicative branch in our political framework.

[8] In Borowski, supra, the Court said at p. 345:
42 The Court, in exercising its discretion in an appeal which is moot, should consider the extent to which each of the three basic factors is present. This process is not mechanical. The principles may not all support the same conclusion and the presence of one or two of the factors may be overborne by the absence of the third, and vice versa.

[9] In Smith, supra, which dealt with the death of the appellant in a criminal
matter, the Court states at p. 406:
50 In summary, when an appellate court is considering whether to proceed with an appeal rendered moot by the death of the appellant (or, in a Crown appeal, the respondent), the general test is whether there exists special circumstances that make it "in the interests of justice" to proceed. That question may be approached by reference to the following factors, which are intended to be helpful rather than exhaustive. Not all factors will necessarily be present in a particular case, and their strength will vary according to the circumstances:
1. whether the appeal will proceed in a proper adversarial context;
2. the strength of the grounds of the appeal;
3. whether there are special circumstances that transcend the death of the individual appellant/respondent, including:
(a) a legal issue of general public importance, particularly if it is otherwise evasive of appellate review;
(b) a systemic issue related to the administration of justice;
(c) collateral consequences to the family of the deceased or to other interested persons or to the public;
4. whether the nature of the order which could be made by the appellate court justifies the expenditure of limited judicial (or court) resources to resolve a moot appeal;
5. whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the court in free-standing, legislative-type pronouncements more properly left to the legislature itself.

51 What is necessary is that, at the end of the day, the court weigh up the different factors relevant to a particular appeal, some of which may favour continuation and others not, to determine whether in the particular case, notwithstanding the general rule favouring abatement, it is in the interests of justice to proceed.

[10] When considering these factors, it is important to remember the specific context in which the judge was called upon to decide whether she had jurisdiction to refer Ms. C. to an assessor other than the one put forward by the Minister and, if so, to exercise her discretion.

[11] The Minister, not the mother, applied to the judge for an order referring Ms. C. for assessment, implying that she had determined that such an assessment was necessary and that she was prepared to pay for it. There was never a suggestion that the relative cost of the suggested assessors was an issue. There was no dispute that all assessors were excellent and had done assessments for the Minister previously. There was no suggestion the judge should not name a specific assessor in her order. There was no issue of timing at the October 25 pretrial as it appeared that all proposed assessors could begin their work at approximately the same time.
Timing however was an issue at the November 22 pretrial when the judge’s original decision was reconsidered because Ms. Eakin had indicated that her report could be ready two months earlier than that of Messrs. Whitzman and Cox. There was never a concern that either report would not be available for trial, as is often the case, because the Minister had not yet applied for trial dates. Nor was there ever a timing issue in terms of the time limits for completion of child protection proceedings legislated in s.45 of the CFSA as the final disposition decision with respect to this child does not need to be made until November 2007.

[12] The Minister’s grounds of appeal raised both the issue of the judge’s jurisdiction to refer Ms. C. to an assessor other than the one she recommended and the issue of how she exercised her discretion, if she had jurisdiction. The focus of the arguments at the hearing was on the jurisdictional question, the Minister describing it as the “nub of the appeal.”

[13] The parties do not suggest that this specific fact situation arises often, which may suggest that the issue is of no public importance so that judicial resources should not be expended to deal with it. However, the parties do suggest that there is some tension among persons involved with work in the Family Division in Halifax as to whether a judge has jurisdiction to order the Minister to provide services under the CFSA, for example pursuant to s.13, to be paid for by the Minister and that this appeal may be relevant to that issue.

[14] The context in which the judge made her decision in this case and the issue before her was so specific that I am satisfied this appeal does not engage the larger issue referred to by the parties. This is not a case about the provision of services pursuant to s. 13. It would not be appropriate for this Court to comment on this larger issue in a vacuum. However, with respect to the jurisdiction issue alone the expenditure of judicial resources may be warranted even in the specific context of this moot appeal to clarify the issue that was before the judge and the particular context in which it arose.

[15] By deciding the merits of the jurisdiction issue the Court would neither be departing from its traditional role as an adjudicator nor intruding upon the legislative or executive sphere. The question of whether the judge had jurisdiction to name the assessor in the context of the application before her falls squarely within the expertise of the Court and is not susceptible to legislative or executive pronouncement. In addition, the continued existence of the appropriate adversarial context and the short time frames legislated under the CFSA for child protection proceedings which may make the jurisdictional issue raised in this appeal evasive of appellate review, suggest this Court should exercise its discretion and decide the merits.

[16] I am satisfied this Court should exercise its discretion to decide the merits of the jurisdiction issue. I am not satisfied we should decide the merits of the appeal as they relate to the judge’s exercise of her discretion. It would not be of any practical benefit to the parties or the public generally.

[17] The second issue for us to consider is whether the judge had jurisdiction to refer Ms. C. to an assessor other than the one put forward by the Minister.

[18] This court should only intervene in the judge’s decision if she erred in legal principle or made a palpable and overriding error in finding the facts; Children’s Aid Society of Cape Breton-Victoria v. A.M. 2005 NSCA 58; (2005), 323 N.S.R. (2d) 121, ¶ 26. As there were no facts found by the judge, we should only intervene if she erred in legal principle.

[19] On December 21, 2006 the judge ordered that the Minister have temporary care and control of the child pursuant to s.42(1)(d) of the CFSA. Thus s. 44(1) of the CFSA sets out the judge’s jurisdiction:
44 (1) Where the court makes an order for temporary care and custody pursuant to clauses (d) or (e) of subsection (1) of Section 42, the court may impose reasonable terms and conditions, including

(a) access by a parent or guardian to the child, unless the court is satisfied that continued contact with the parent or guardian would not be in the best interests of the child;
(b) access by any other person to the child;
(c) the assessment, treatment or services to be obtained for the child by a parent or guardian or other person seeking the care and custody of the child;
(d) the assessment, treatment or services to be obtained by a parent or guardian, or other person residing with the child;
(e) where an order is being made pursuant to clause (e) of subsection (1) of Section 42, the circumstances or time when the child may be returned to the parent or guardian or other person under a supervision order; and
(f) any terms the court considers necessary.
(Emphasis mine)

[20] The parties did not provide, and I was unable to find, any cases exactly on point, where the Minister applied for an assessment and the only issue before the judge was a choice between the assessor put forward by the Minister or the one put forward by the parent, where both were agreed to be qualified. In Children’s Aid Society of Halifax v. C.V., 2004 NSSF 107; (2004), 228 N.S.R. (2d) 226, affirmed at 2005 NSCA 87; (2005) 233 N.S.R. (2d) 360 (C.A.), the Minister requested an assessment and the judge ordered that the parents could decide who their assessor would be. The judge stated:
[80] Section 44(1) of the Children and Family Services Act permits the Court, when making an Order for temporary care and custody, to impose reasonable terms and conditions to that Order including the assessment, treatment or services to be obtained by a parent or guardian or other person residing with the child.
[81] As indicated previously, the Children's Aid Society of Halifax has requested that the Respondents participate in an assessment which will include a psycho/social history, a psychological/psychiatric examination and assessment, a parental assessment including an examination and assessment of parental skills and techniques and a home study and assessment. It appears, from the materials filed, that Ms. C.V. consents to at least a portion of this assessment. . . .
. . .
[83] Regardless of Ms. C.V.'s consent, I am satisfied that it is appropriate to order the assessment requested by the Children's Aid Society of Halifax and I am prepared to grant the relief requested in this regard.
[84] I am hopeful that this assessment will be beneficial to all of the parties to this proceeding. As I have indicated previously, in light of the Respondents' conspiracy theories, I am of the view that the assessment process will be much more beneficial to Ms. C.V. and Mr. L.F. if they have a say in who actually conducts the assessment. In order to assist in this regard, I am going to give both of the Respondents until December 10th, 2004 (two weeks from the date of this decision) to advise the Agency's counsel, Elizabeth Whelton, in writing, of which psychologist and psychiatrist they wish to conduct the assessment. The psychologist and psychiatrist must both be individuals who are licensed and registered to practice in the province of Nova Scotia and must be available to undertake the assessment in the Halifax Regional Municipality without significant delay. In the event that the Respondents do not provide the above-noted notification to Ms. Whelton, in writing, on or before the 10th day of December, 2004, the Children's Aid Society of Halifax shall be at liberty to select the psychologist and the psychiatrist who will conduct the assessment. If any difficulties arise in relation to this assessment (including the
issue of payment of the psychologist or psychiatrist), I hereby reserve the right to deal with the matter further.
(Emphasis mine)

[21] The question of the judge's jurisdiction to make such an order in Children’s Aid Society of Halifax v. C.V., supra, was not raised in the appeal to this Court nor does it appear to have been challenged in the trial court.

[22] E.A. Driedger set out the modern principle of statutory interpretation in the Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87 as follows:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[23] Section 44(1) of the CFSA governs what a court may order once it has determined at a disposition hearing that the Minister should have temporary care and custody of a child. It provides that the court may impose "reasonable terms and conditions", including "any terms the court considers necessary." Section 44(1)(d) explicitly gives the court authority to refer a parent for assessment. There is nothing in the section restricting the court from referring a parent to an assessor different from the one recommended by the Minister. All of this suggests that a court has authority to refer a parent to an assessor other than the one put forward
by the Minister if it considers this to be “reasonable’ and “necessary.” A number of relevant considerations would bear on the result such as the relative cost, the availability of each report and the relative expertise of the candidates. It is difficult to imagine that the legislature would have used the words in s.44(1) if it intended to restrict the judge to only refer a parent to the assessor suggested by the Minister in the present situation. I am satisfied that in the unique circumstances of this case the judge had the jurisdiction to make the referral she did.
[24] Accordingly, I would dismiss the appeal.

Hamilton, J.A.
Concurred in:
Roscoe, J.A.
Bateman, J.A.

NOVA SCOTIA COURT OF APPEAL
Citation: Nova Scotia Home for Coloured Children v. Milbury, 2007 NSCA 52

Date: 20070504
Docket: CA 275523
Registry: Halifax

Between:

Nova Scotia Home for Coloured Children and
Family and Children’s Services of Annapolis County

Appellants

v.

Elizabeth Ann Milbury

Respondent

Judge: The Honourable Justice Roscoe

Appeal Heard: April 2, 2007

Subject: Civil Procedure Rule 13.01, summary judgment application, limitation of actions, discoverability

Summary:

The plaintiff had resided at the NS Home for Coloured Children for several months when she was one to two years old between 1946 and 1947. In 2003 she brought an action against the Home and the child welfare agency which had placed her at the Home, claiming that she had been physically and emotionally abused when she lived there. The action was framed in negligence, breach of contract, vicarious liability for the assaults by staff of the Home, and breach of fiduciary duty.

The defendants [the Home and the child welfare agency] brought an application for summary judgment claiming that the action was statute barred. On the day of the hearing the plaintiff amended the statement of claim to add particulars to the breach of fiduciary duty claim, specifically that the Home was run as a plantation that exploited the children who were placed there.

The chambers judge granted the summary judgment application in relation to the breach of fiduciary duty claim but dismissed it in respect to the other causes of action.

The Home and the Agency appealed and the plaintiff cross appealed.

Issues:

Did the chambers judge err in not granting summary judgment on the claims in negligence, breach of contract and vicarious liability?
Did the chambers judge err in finding there was no arguable issue for trial on the fiduciary duty claim?

Result:

Appeal and cross appeal allowed. Summary judgment should have been granted on the claims in negligence, breach of contract and vicarious liability because the limitation periods had expired in 1972 and the plaintiff filed no evidence to establish that the discoverability rule might extend the time limit beyond 1972. Therefore there was no real chance of success at trial.

There is no limitation period for a claim of breach of a fiduciary duty.

The chambers judge erred in placing the burden on the plaintiff when the defendants had not established that there was no genuine issue for trial on the claim for breach of fiduciary duty.

This information sheet does not form part of the court’s judgment. Quotes must be from the judgment, not this cover sheet. The full court judgment consists of 16 pages.

NOVA SCOTIA COURT OF APPEAL
Citation: Nova Scotia Home for Coloured Children v. Milbury, 2007 NSCA 52

Date: 20070504
Docket: CA 275523
Registry: Halifax

Between:

Nova Scotia Home for Coloured Children and
Family and Children’s Services of Annapolis County

Appellants

v.

Elizabeth Ann Milbury

Respondent

Judges: Roscoe, Saunders and Fichaud, JJ.A.

Appeal Heard: April 2, 2007, in Halifax, Nova Scotia

Held: Appeal and cross appeal are allowed per reasons for judgment of Roscoe, J.A.; Saunders and Fichaud concurring.

Counsel: John Kulik, for the appellant, Nova Scotia Home for Coloured Children
W. Bruce Gillis, Q.C., for the appellant Family and Children’s Services
Raymond Wagner and Fiona Imrie, for the respondent

Reasons for judgment:

[1] The respondent, Elizabeth Milbury, is one of 61 former residents of the Nova Scotia Home for Coloured Children who are suing the former orphanage for damages arising from physical and emotional abuse suffered while she resided there for several months 59 years ago. She also claims damages from Family and Children’s Services of Annapolis County (the Agency) which was instrumental in apprehending her from the care of her parents and placing her at the Home and from the Province of Nova Scotia which was responsible for overseeing the activities of the Home and the Agency.

[2] The action is framed in negligence, breach of fiduciary duty, breach of contract and vicarious liability for the abuse alleged to have been inflicted by employees of the Home. In their defences, in addition to denying that the plaintiff was abused, the Home and the Agency denied the existence of a fiduciary duty, a contract or a duty of care, and claimed that the action was barred by the Limitations of Actions Act, R.S.N.S., 1989, c. 258.

[3] The Home and the Agency brought an application for summary judgment which was heard by Justice M. Heather Robertson in Chambers. The chambers judge allowed the summary judgment application in respect to the claims for breach of fiduciary duty but dismissed the application in respect to the claims for vicarious liability, breach of contract, and negligence. She also rejected the defendants’ arguments that the action was statute barred, after determining that there was an arguable issue regarding discoverability. The decision is reported as 2006 NSSC 293; [2006] N.S.J. No. 400.

[4] The Home and the Agency appeal the dismissal of the summary judgment application for the claims in negligence, vicarious liability and breach of contract and on the basis of the discoverability principle. The plaintiff cross-appeals the order granting summary judgment on the fiduciary duty claim. There is no crossappeal by the plaintiff respecting the dismissal of the fiduciary duty action against the Agency. For the reasons that follow I would allow both the appeal and the cross appeal.

Evidence on the application:
[5] Ms. Milbury filed three affidavits in response to the application for summary judgment, her own and one each from her sisters, Shirley Melanson and Pauline Comeau. In her affidavit, the plaintiff stated that she was born on July 25, 1945.

When she was between two and three years old, she and five of her older siblings were taken into care of the Agency and placed at the Home for several months. The plaintiff does not have any “clear memories” of what happened to her while she was at the Home, “other than remembering feelings of sadness and crying”. She was advised by her sister Shirley Melanson that one of the staff at the Home put her in extremely hot water causing her to scream and that she came out of the water as red as a lobster; that she appeared to be terrified of the Home's staff and would wet her pants whenever they approached her; and that there was not enough food for the children at the Home and they were frequently hungry.

[6] The evidence of Ms. Milbury relating to the limitation period is that she was told by her sister Shirley in March 2001 that she had read in the newspaper of a claim against the Home by a former resident and that her sister had contacted Wagner and Associates, the lawyers for the other claimants, about the possibility of making a claim in March 2001. The plaintiff contacted the lawyers herself in March 2001. She stated that “until her sister told her about the possibility of making a claim against the Nova Scotia Home for Coloured Children, I was not aware that I might have a claim”.

[7] Shirley Melanson asserts in her affidavit that the plaintiff was put in a tub of scalding water by a staff member at the Home. The plaintiff cried and she looked like a cooked lobster when she was removed from the tub. Her sister Pauline Comeau recalled that the plaintiff was afraid of the staff and would not eat.

[8] The statement of claim was filed on January 8, 2003. The application for summary judgment was heard on May 23, 2006. There was no other evidence submitted by the plaintiff explaining when she first knew that she had been abused while she resided at the Home or when she discovered that she suffered damages as a result of the abuse. An amended statement of claim was filed on May 23, 2006 which added particulars of the claim based on a fiduciary duty.

The decision under appeal:
[9] The chambers judge set out the test on a summary judgment application pursuant to Rule 13.01 in ¶ 8 as follows:

[8] The law is well settled that the applicant bears the initial burden of establishing there is no arguable issue of fact to be determined at trial. If that burden is met the respondent must show that her case has a real chance of success. United Gulf Developments Ltd. v. Iskandar, [2004] N.S.J. No. 66 (N.S.C.A.) paras. 9 and 10; MacNeil v. Bethune, [2006] N.S.J. No. 62, N.S.C.A.,
para. 21.

[10] The judge dealt with each of the causes of action separately. With respect to the claim for breach of fiduciary duty, after reviewing the relevant legal principles she concluded:

[49] It is obvious that the defendants had a fiduciary duty toward the plaintiff. However, whether a breach of that duty has occurred by reason of fiduciaries placing their own interests ahead of those of the plaintiff has not been shown in the plaintiff's response to this application.

[50] Had there been any evidence before me to support the "plantation argument" I would have concluded that an arguable case could be made as against the NSHCC and potentially against the Province of Nova Scotia. The underpinning for such a claim is simply absent in the plaintiff's pleadings and response to this application.

[51] The pleadings recite extensive historical information about the operation of the NSHCC from the 1920's through to the period of time the plaintiff was resident there in 1947-48. We do not however have class proceedings legislation in this Province. The pleadings appear to be generic in nature intended to apply to the circumstances of the other potential claimants Mr. Wagner represents.

[52] As I noted the plaintiff's sisters do not allege that they were required to work in market gardens at the NSHCC. Nor has counsel for the plaintiff offered any sources for the historical information about the NSHCC that he sets forth in the statement of claim. These remain bare allegations.

[53] Counsel for the plaintiff are well aware of the obligation to be in a position to respond with at least some evidentiary foundation to support each cause, if they are to resist summary judgment. I note that this application was commenced on February 7, 2006 and that there has been sufficient time for the plaintiff to offer additional evidence in resisting the application.

[11] Regarding the claim based on vicarious liability for the actions of the Home’s employees, the chambers judge concluded:
[58] In this case the specific alleged acts of abuse involve the alleged incident of the scalding bath, fear of the staff and a sustained condition of hunger. The affidavits of the plaintiff's sisters are sufficient to support an arguable issue for trial. The NSHCC had undertaken the hands on care of the plaintiff and her siblings. The acts complained of are directly related to the duties for which its employees would have been hired, the care and feeding of its residents.
[59] The role of Mr. Eric Woods, a social worker with the CAS Annapolis, in visiting the home to see how the plaintiff and her siblings were faring also raises an arguable issue for trial and meets the established low threshold test.

[12] The claims based on negligence and breach of contract were also found to raise arguable issues for trial:
[60] The plaintiff has raised arguable issues for trial. The defendant the NSHCC cannot reasonably argue that because the plaintiff was only two years of age and cannot remember the incidents related to her by her sisters, that no damage could therefore have occurred and the case for negligence must fail. If these alleged events in fact occurred, it will be for a trial judge to determine if the defendants breached a required standard of care and the measure of damages that arise in consequence. No doubt such alleged events would have a lasting effect on
a child.
...
[63] Whether or not there exits a claim in contract as against the defendants is a matter that would also be flushed out during the trial process. As our discussion in court revealed funding arrangements were made between the Province and the NSHCC and settlements were made as between municipal units when children were placed in care. This is not an inappropriate claim, that should be dismissed at this time.

[13] As for the defendants’ arguments that the action was out of time, the chambers judge concluded:
[64] Turning to the limitation period, the plaintiff acknowledges that these events are well beyond the limitation period but says she was unaware that she may have had a claim before March 2001.
[65] By operation of the Limitation of Actions Act the latest date the plaintiff could have pursued these causes was within one year of her 21st birthday, i.e. July 25, 1967 s. 2(1)(a); or an action in contract within six years, therefore July 25, 1972, s. 2(1)(e).
[66] The plaintiff cannot avail herself of the relief of s. 3 of the Act, which could have allowed a four year extension of the limitation period, because of the events are alleged to have occurred before June 26, 1982.
[67] It is correct therefore that the claims were potentially statute barred by some 30 years before the action was commenced in January 2003.
[68] Discoverability is therefore a live issue.
...
[72] The defendants argue that the plaintiff must lead evidence why the claim was not discovered during the limitation period. I am satisfied that the plaintiff has raised an arguable issue for trial and that she should not be barred from proceeding because she was unaware of her potential claim before March 2001.

She has led sufficient evidence in this regard.

[73] The discoverability principle is intended to ensure that no injustice will occur by reason a person being unaware they have a potential claim. The plaintiff was an infant when the alleged acts of abuse are said to have occurred. A further explanation of these events will occur through the trial process.
[74] I am satisfied that the defence of limitation periods should not, at this juncture succeed in defeating the plaintiff's actions in contract negligence and vicarious liability as against the defendants.

Issues:
[14] Although both appellants and the respondent raise several grounds of appeal and cross appeal, as will be seen, it is not necessary to deal with all of them. The grounds can be conveniently consolidated and distilled into the following issues, the first relating to the appeal and the second to the cross appeal:
1. Did the chambers judge err in law in not granting summary judgment on the claims in negligence, breach of contract and vicarious liability on the basis of the expiry of the limitation period?
2. Did the chambers judge err in finding that there was no arguable issue for trial on the claim for breach of fiduciary duty?

Standard of Review:
[15] On the appeal, since the actions in negligence, breach of contract and vicarious liability were not dismissed, the standard of review is the usual standard applied to appeals of interlocutory orders. We will not intervene unless wrong principles of law were applied or a patent injustice would result. See: Maritime Travel Inc. v. Go Travel Direct.Com Inc., 2007 NSCA 11; United Gulf Developments Ltd. v. Iskandar, 2004 NSCA 35; Eikelenboom v. Holstein Assn.
of Canada, 2004 NSCA 103.

[16] However on the cross appeal, the chambers judge's order is one which has a final or terminating effect. Therefore the standard of review is not that usually applied to discretionary orders of an interlocutory nature but rather, whether there was an error of law resulting in an injustice. See: Jeffrey v. Naugler, 2006 NSCA 117; Purdy Estate v. Frank, [1995] N.S.J. No. 243 (C.A.); Clarke v. Sherman, [2002] N.S.J. No. 238 (C.A.); Binder v. Royal Bank of Canada, 2005 NSCA 94; MacNeil v. Bethune, 2006 NSCA 21.

Analysis:
Test for Summary Judgment:
[17] In Orlandello v. AGNS, 2005 NSCA 98, Justice Fichaud explained the two stage test on a summary judgment application:
[12] Rule 13.01 permits a defendant to apply for summary judgment on the ground that the claim raises no arguable issue. Rule 17.04(2)(a) allows a third party to invoke Rule 13.01 to challenge a plaintiffs claim. In Eikelenboom, after reviewing the authorities, this court stated the test:
[25] Applying these authorities to the circumstances of this case, it is apparent that in order to show that summary judgment was available to it, [the defendant] had to demonstrate that there was no arguable issue of material fact requiring trial, whereupon [the plaintiffs] were then required to establish their claim as being one with a real chance of success.
See also: United Gulf Developments Ltd. v. Iskandar, 2004 NSCA 35 at 9; Hercules Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165 at 15; Guarantee Co. of North America v. Gordon Capital Corp., [1999] 3 S.C.R. 423 at 27.

[18] As stated in Selig v. Cooks Oil Company Ltd., 2005 NSCA 36, there are two distinct parts of the test and they should be dealt with sequentially:
[10] ... First the applicant, must show that there is no genuine issue of fact to be determined at trial. If the applicant passes that hurdle, then the respondent must establish, on the facts that are not in dispute, that his claim has a real chance of success.

[19] If the applicant does not establish that there is no genuine issue of fact, it is not necessary to go to the second step. There is no onus on the responding party if the applicant does not succeed on the first prong of the test. If there are genuine issues of fact, the application should be dismissed.

1. Limitations of Actions - discoverability:
[20] Did the defendants establish that there are no genuine issues of fact on the question of whether the plaintiff’s action is statute barred because the limitation period has expired? The Limitations of Actions Act provides that actions for assault and battery must be commenced within one year after the cause of action arose: s. 2(1)(a). Actions for breach of contract and negligence have a six year limitation: s. 2(1)(e). The plaintiff does not allege that she was sexually abused, so section 2(5) regarding discovery of the causal relationship of the damages is
inapplicable. (As will be discussed further in the next section, there is no limitation period for actions for breach of fiduciary duty) Section 4 of the Act provides that if a cause of action accrues while a person is under the age of nineteen, the time does not start to run until she reaches the age of majority. However, at the time the plaintiff reached the age of majority, the specified age was 21. The age of majority changed from 21 to 19 in 1971. See: The Age of Majority Act, Stats. N.S. 1970-71, c. 10, s. 7. Therefore, subject to extensions that might arise as a result of the discoverability principle and s. 3 of the Act, in this case the plaintiff attained the
age of majority in 1966 and all the relevant statutory limitation periods would have expired by 1972, 31 years prior to the commencement of the action.

[21] Section 3 of the Limitations of Actions Act permits a court to disallow a defence based on a limitation period and to allow an extension of a further four years. However, s. 3(5) provides that the section does not apply if the time limitation expired before June 26, 1982. Even if it applied to these causes of actions, the maximum extension would be until 1976, unless through the application of the discoverability rule the cause of action arose at some later date.

[22] In Central Trust Co. v. Rafuse, [1986] 2 S.C.R. 146, LeDain, J., for the Court, described the discoverability rule as follows (at pp. 151- 152): . . . A cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence. ...

[23] When the defendant pleads a limitation period and proves the facts supporting the expiry of the time period, the plaintiff has the burden of proving that the time has not expired as a result, for example, of the discoverability rule: Soper v. Southcott, [1998] O.J. No. 2799 (C.A.) at ¶ 14; Gray Condominium Corp. No. 27 v. Blue Mountain Resorts, [2005] O.J. No. 793 (S.C.J.) at ¶ 18.

[24] In the context of a summary judgment application where a limitation defence is pleaded, the defendant applicant must first establish that there is no genuine issue of fact for trial. In this case the defendants have established that the statutory limitation period has long expired. Unless the discoverability principle applies, the defendants satisfied the first part of the summary judgment test on the facts alleged by the plaintiff, that is, that the wrongs were committed at the latest in 1947, and that the longest limitation period, six years, expired in 1972, six years after the plaintiff reached the age of majority in 1966. Since the defendants have met the initial threshold, the plaintiff has to demonstrate that there is a real chance of success by presenting evidence that the limitation period has not expired, because of the discoverability principle.

[25] The only evidence submitted by the plaintiff to support the extension of the limitation period based on the application of the discoverability rule is that summarized above at ¶ 6. Essentially, her evidence is that she did not know she could sue the Home until 2001. She has not provided any evidence of when she first became aware that she was injured, or suffered abuse while living at the home.
The question not answered in her pleadings or affidavits is: when did her sisters first tell her that she had been placed in a scalding hot bath and was sad and hungry while living at the Home? The plaintiff has not provided any explanation for why she did not know or could not have known about the abuse within the statutory time limit or within a reasonable period of time thereafter. This is an important factor in a summary judgment application where a limitation period is raised by the defence. As stated by Ferrier, J. in Stell v. Obedkoff , [1999] O.J. No. 2312 (S.C.J.):
13 However, beyond the allegations, the plaintiffs have not adduced any evidence which gives rise to a factual issue regarding the question of discoverability. No evidence has been provided indicating that there were unusual circumstances which prevented the plaintiffs from discovering the alleged negligence of the defendants, nor has there been any suggestion that the
defendants withheld a vital part of the evidence. No evidence has been provided to explain why the alleged negligence of the defendants could not reasonably have been discovered within the limitation period.

[26] The comments on discoverability in the context of a summary judgment application in Jack v. Canada, [2004] O.J. No. 3294 (S.C.J.) are instructive:
81 Counsel have referred to legal authorities regarding the discoverability rule.
Discoverability is a general rule applied to avoid the injustice of precluding an action before the person is able to raise it or to sue. Peixeiro v. Haberman, [1997] 3 S.C.R. 549 (S.C.C.) at paras. 36 and 44.
82 A cause of action arises for the purposes of a limitation period when the material facts on which the action is based have been discovered or ought reasonably to have been discovered, by the exercise of reasonable diligence. Central Trust v. Rafuse, [1986] 2 S.C.R. 147 at p. 224; Peixeiro v. Haberman (1995), 25 O.R. (3d) 1 at p. 4 (Ont. C.A.).
83 The rule of reasonable discoverability is to ensure that the plaintiffs have sufficient awareness of the facts to be able to bring an action. The suggestion that a plaintiff requires a "thorough understanding" of such facts even after the action is brought, sets the bar too high. Similarly, to say that a plaintiff has to know the precise cause of her injuries before the limitation period started to run would also place the bar too high. K.L.B. v. British Columbia [2003] 2 S.C.R. 403 (S.C.C.) at para. 55-57; McSween v. Louis (2000), 187 D.L.R. (4th) 446 at p. 459 (Ont. C.A).
84 The exact extent of one's loss need not be known before a cause of action can be said to have accrued. Once a plaintiff knows that some damage has occurred and has identified the tortfeasor, the cause of action has accrued. Neither the extent nor the type of damage need be known. Peixeiro v. Haberman, supra, at p. 557.
...
87 The facts upon which any plaintiff relies to fall within the discoverability rule must have an objective basis. Objective facts supporting negligence that were discovered at a later point in time beyond a limitation period are an absolute pre-requisite to the extension of the limitation period. The extension of a limitation period is not driven by "wishes", "maybes", or "emotions" generated by a benevolent or well-intentioned source. Lalani v. Woolford, [1999] O.J. No. 3440 (Ont. Div. Ct.) at paras. 12, 16, 19; Morellato v. Wood (1999), 175 D.L.R. (4th) 753 (Ont. S.C.J.); affirmed at (1999) 187 D.L.R. (4th) 760 (Ont. C.A.).
88 In order to establish that there is a genuine issue for trial with respect to Jack's claim that she did not have the requisite material facts available to her until "in and around 1994", Jack must adduce evidence to support her claim that the necessary information was not discoverable until that time. In my opinion, she failed to do so. Further, Jack must provide evidence demonstrating that there is a factual issue surrounding her failure to discover the alleged negligence before 1994 that requires resolution at trial. Again, in my opinion, she has failed to do
so.
89 She has not provided any evidence on either point. Stell v. Obedkoff (1999), 45 O.R. (3d) 120 (Ont. S.C.J.) at pp. 123-125.

[27] It is the discovery of the facts giving rise to a cause of action that starts the time running, not the discovery of the applicable law. Ignorance of the law does not postpone the starting of the time period. See: Coutanche v. Napolean Delicatessen, [2004] O.J. No. 2746 (C.A.) and Hill v. South Alberta Land Registration District (1993), 135 A.R. 266 (C.A.).

[28] The chambers judge found that “discoverability was a live issue” based on the plaintiff’s statement that she was an infant at the time of the abuse and she did not know that she had a potential claim against the home until 2001. This was, with respect, an error in principle. Knowing that a claim is possible does not equate to knowledge of the facts underlying the cause of action. The plaintiff did not present any evidence supporting the discovery of facts underlying her claim sometime after 1972. The limitation defence had been pleaded in November 2005 and the application for summary judgment made on that basis had been filed in February 2006. In May 2006, there still was no evidence presented by the plaintiff to support a discoverability argument. Therefore the summary judgment application should have been granted. The plaintiff did not meet the onus of establishing that there was a real chance of success because there was a valid limitation defence.

[29] The appeal is therefore allowed. It is not necessary to deal with the other issues raised by the appellants.

2. Fiduciary duty:
[30] The cross appeal raises the issue of whether summary judgment should have been granted on the plaintiff’s claim for breach of fiduciary duty. This requires examination of two questions: does the limitation defence apply to this claim and if not, did the Home establish that there was no genuine issue for trial? (The plaintiff did not appeal the dismissal of the claim for breach of fiduciary against the Agency.)

[31] The Home does not dispute that the Limitations of Actions Act in Nova Scotia does not prescribe a limitation period for actions for breach of fiduciary duty. The comments of LaForest, J. in M. (K.) v. M. (H.), [1992] 3 S.C.R. 6 at pp. 69-71 are therefore applicable as well to Nova Scotia actions:
... In Ontario, by contrast, the Act applies only to a closed list of enumerated causes of action. Counsel for both parties have apparently conceded that this list does not include fiduciary obligations, and it is therefore unnecessary to consider this question in great depth....

See also: D.K. v. B.D. Estate, [2000] N.S.J. No. 330 (S.C.), and the discussion of the issue by Professor Rotman in Fiduciary Law, Thomson Carswell, 2005, at page 619 et seq. My comments should not be taken to exclude the application of laches to an equitable claim, if laches is pleaded and established. But laches involves factual issues that are for trial, not summary judgment: Allen v Royal Canadian Legion 2007 NSCA 44 at ¶ 28-31.

[32] The statement of claim was amended on the day the summary judgment application was heard to include particulars of the exploitation element of the claim for breach of fiduciary duty. The following allegations were added:
39. The Plaintiff states that the NSHCC breached its parental-type fiduciary duty to act loyally in the best interests of the Plaintiff and not to put its own or others' interests ahead of the Plaintiff in a manner that abused the Plaintiff's trust. The breaches of its fiduciary duty include that it:
(a) structured its operations so that they exploited the resident children as a source of free labour rather than functioning as a facility dedicated to the proper care, protection and education of neglected children;
(b) sold substantial portions of the food produced at the home with the aid of free child labour while at the same time depriving the resident children of adequate food and nourishment;
(c) allowed it's the staff to consume substantial portions of the food produced at the home with the aid of free child labour while at the same time depriving the resident children of adequate food and nourishment;
(d) by operating the home like an exploitive plantation, created or materially contributed to an atmosphere of tolerance and encouragement of excessive mental and physical abuse such that the repugnant practices pervaded the home and the relationships between the residents of the home as well as between the agents, employees, servants and residents of the home.

[33] The argument of the Home before the chambers judge, which was accepted by her, was that the plaintiff did not provide any evidence in her affidavit to support the plantation argument which would be required to prove that the Home put its own interests ahead of the plaintiff’s interests. Nor did the plaintiff allege that the Home benefited from her personal labour on the farm. Therefore the judge concluded that there was no genuine issue for trial on the question of benefit to the fiduciary at the expense of the child.

[34] The argument on behalf of the Home was analogous to that of an application to strike for defective pleadings when it submitted that judgment should be granted because there is no allegation that the plaintiff personally worked on the farm.
However, in my view, the pleadings contained in paragraphs 39(a) to (d), given the evolving law in this field, are sufficient to pass the low threshold of absolutely unsustainable.

[35] Since the exploitation element of the fiduciary duty claim had just been included in the statement of claim on the day of the application for summary judgment, the defendants did not present any evidence to establish that there was no genuine issue of fact respecting exploitation for trial. In that respect, this claim differs from the other claims where the defendant’s submissions on the limitation defence were based on agreed-upon dates and the statutory prescriptions. Those submissions shifted the onus on the plaintiff to establish that the limitation periods did not apply because of the discoverability rule. As a result, on the fiduciary duty
claim there was not yet any factual hurdle for the plaintiff to refute. The defendants did not seek an adjournment of the summary judgment application in order to file affidavits to show there was no genuine issue for trial on the fiduciary duty cause of action.

[36] The comments respecting the onus on a defendant applicant for summary judgment made in MacNeil v. Bethune, 2006 NSCA 21 are applicable:
[31] I would underline, however, that as I have said the summary judgment test has two steps, each of which has a different onus. The first step is that the moving party must show that “there is no genuine issue of material fact for trial and therefore summary judgment is a proper question for consideration...”:
Guarantee Co. of North America, supra. This requirement has been described in Somers Estate v. Maxwell (1995), 107 Man. R.(2d) 220 ; [1996] M.J. No. 46 (Q.L.)(C.A.), as follows:
10 In some respects a defendant's motion for summary judgment is like a motion to dismiss a claim as one disclosing no cause of action . The most significant [difference] is that, unlike the motion to dismiss on the pleadings, a motion for summary judgment is not decided on the
assumption that the facts alleged are true. The defendant must prove the facts to be such that, prima facie, the action fails in law. The burden then shifts to the plaintiff to prove facts which establish, if not the validity of the claim, at least a genuine issue for determination.
11 The initial question for the motions judge was not therefore that which she asked herself. There was no onus on the plaintiff to establish either a genuine issue or a prima facie case until the defendant had proven, on a prima facie basis, the absence of a valid claim in law.
[32] I have also found the comments of Green, J., as he then was, in Marco, supra, helpful in this regard:
76 . . .
3. To bring himself or herself within the Rule the applying party must:
(a) in a case where he or she has the ultimate burden of proof on the merits, put forward an evidentiary basis for the claim which, if considered alone, would prove each element of the cause of action; or
(b) in a case where the other party has the burden of proof on the merits, put forward an evidentiary base establishing a defence to the claim as defined in the pleadings or tending to show that the other party's claim has no substance to it.
4. In either of the foregoing cases, the applying party's case must consist of an organized set of facts set out in a coherent way, either from primary sources or the best sources available, including admissions on interrogatories and discoveries, that constitute proof of a proper foundation of the claim or defence, as the case may be.
[emphasis added]

[37] In this case the defendant Home did not meet the first part of the summary judgment test, and the application should therefore have been dismissed. It was an error of law to put the burden of the second step on the plaintiff when the defendant had not presented an evidentiary base establishing a defence to the claim for breach of fiduciary duty.

Conclusion:
[38] I would for these reasons allow the appeal and the cross appeal. Summary judgment is granted to the Home and the Agency on the plaintiff’s claims in breach of contract, negligence and vicarious liability for assault. The summary judgment order granted by the chambers judge on the claim for breach of fiduciary duty against the Home is set aside. Any costs paid as a result of the order of the chambers judge are to be repaid.

[39] Since success was divided there should be no costs on the appeal or the cross appeal to the Home or the plaintiff. The Agency should have costs of the appeal payable by the plaintiff in the amount of $1500 plus disbursements. The Agency is also entitled to its costs of the action payable by the plaintiff, to be determined on application to Supreme Court chambers.

Roscoe, J.A.
Concurred in:
Saunders, J.A.
Fichaud, J.A.