Thursday, April 1, 2010

Reference process

Reference re Broome v. Prince Edward Island, 2010 SCC 11released today, deals with a claim for abuse of children in a Home for Children in Prince Edward Island.

As a result of the action, the Lieutenant Governor brought a reference to the Prince Edward Island Court of Appeal based upon an Agreed Statement of Facts asking the court for its opinion about whether the Province had certain duties toward children who had allegedly been abused while residing in the Home. 

The Court found, generally, there was no liability on the Province. In doing so the Court considered the use of the reference process where the reference was based on an agreed statement of facts.

The Court noted that the limited record put forward in this case, namely a very brief statement of facts and a compendium of legislation, impeded the Court of Appeal in making definitive pronouncements on the issues raised in the reference.  The utility of the reference procedure may be called into question where the factual basis for the reference is quite limited.

The Court said:

[4]                               In an attempt to clarify the role and responsibilities of the Province in relation to the Home and its residents, the Lieutenant Governor in Council referred 21 questions to the Prince Edward Island Court of Appeal. This reference procedure, at the relevant time provided for by the Supreme Court Act, R.S.P.E.I. 1988, c. S-10, s. 18, permitted the executive branch to seek an advisory opinion from the appellate court of the Province (P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), at p. 8-16). The relevant parts of the section provided:

 

18. (1) The Lieutenant Governor in Council may refer any question to the Appeal Division for hearing and consideration.

 

(2) The Appeal Division shall certify its opinion to the Lieutenant Governor in Council, accompanied by a statement of the reasons therefor, and any judge who differs from the opinion may in like manner certify his opinion and reasons.

 

. . .

 

 

(7) The opinion of the court upon a question is deemed a judgment of the court, and an appeal shall lie therefrom as from a judgment in an action.

 
[5]                              The reference asked the Court of Appeal for its opinion as to whether the relevant legislation and other factors gave rise to various duties and responsibilities on the part of the Province in relation to the residents of the Home. In brief, the Court of Appeal was asked whether the Province: owed a general duty of care to the children placed in the Home; had any statutory duty to supervise the operation of the Home; was vicariously liable for the acts or omissions of the Board of Trustees, who were entrusted to operate the Home, or the volunteers or staff at the Home; owed a fiduciary duty to the residents of the Home; or had a non-delegable duty in respect of the care given to the residents of the Home.  This proceeding did not address directly the rights of or the harm inflicted on the alleged victims, or the Province's liability for the alleged abuse; it simply sought the opinion of the Court of Appeal concerning the Province's duties, if any, to the children resident in the Home at the relevant times, based on the Agreed Statement of Facts and the legislation. The complete text of the 21 questions and the statement of agreed facts referred to the Court of Appeal are set out in an appendix to my reasons.

 

[6]                               I underline the point that the factual basis for the reference is quite limited. The record consists of a very brief statement of facts and a compendium of legislation. In light of this limitation, the opinion of the court is and must be understood to be based on the record provided to the court: B. L. Strayer, The Canadian Constitution and the Courts (3rd ed. 1988), at pp. 331-32.  Moreover, the court has discretion to give qualified answers to, or to decline to answer, the reference questions if the record does not permit a definitive response: Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698, at para. 10; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at p. 545; Reference re Objection by Quebec to a Resolution to Amend the Constitution, [1982] 2 S.C.R. 793, at p. 806; and Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at paras. 26-30.

 

[7]                              The very limited factual basis for the reference impedes the Court in making definitive pronouncements about the issues raised to the point of putting the utility of the reference process in question.  The Court of Appeal appropriately found that it had to limit the scope of its answers.  It thus added two important qualifications to its general  conclusion that the duties for which the appellants contend did not arise.  The reference relates to the situation of the plaintiffs who, as noted, were residents of the Home between 1928 and 1976 and who were taken there primarily by their parents, family members, guardians or charities (Agreed Fact #6).  The Court of Appeal found it necessary, however, to make distinctions among this group and these distinctions led the court to add the two qualifications to which I have just referred (paras. 85-93).

 

[8]                              First, 14 of the plaintiffs were placed in the guardianship of the Province between 1956 and 1964 while still resident in the Home (Agreed Fact #9).  The Court of Appeal concluded that the Province owed a duty of care to those specific children for the period of the wardship (paras. 29-31, 89-93, and 138).  The Province also owed these 14 children a fiduciary duty as wards during the period of the wardship (paras. 120-22, and 142).  Second, between 1958 and 1962, 10 of the 14 plaintiffs just described were proposed for placement in the Home by a provincial employee, before they were accepted as residents (Agreed Fact #8).  The Court of Appeal ultimately declined to give an opinion concerning a duty to these children.  It reasoned the potential liability of the Province in connection with negligent placement of children was not before the court, as the reference questions and the Agreed Statement of Facts focussed on the duties of the Province to children as residents of the Home, rather than because of their placement by the Province in the Home (paras. 33, 85 and 137).

 

[9]                              These qualifications were not challenged in this appeal and what follows is subject to them.

 
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

416 225 2777

www.jmortonmusings.blogspot.com

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