May 9, 2019

New Understandings of Guardianship in Newfoundland and Labrador: A.A. (Re), 2019 NLCA 7 (the Ash decision)

A.A. (Re), 2019 NLCA 7 (CanLII)

A.A. (Re), 2019 NLCA 7 (the Ash decision) concerned an application for guardianship of the person of Mr. Andrew Ash, a mentally disabled person. At Supreme Court, the application for the estate was granted per the Mentally Disabled Persons’ Estates Act, R.S.N.L. 1990, c. M-10. The application for the person was denied as the presiding judge determined he had no jurisdiction to do so.

The Ash decision examined in great detail the sphere of operation of the Supreme Court of Newfoundland in regard to guardianship orders of the person. Ultimately, the court confirmed that under the Judicature Act R.S.N.L. 1990, c. J-4 that the Supreme Court has a statutory authority to make such orders. The Court of Appeal further confirmed that the Supreme Court has the inherent jurisdiction under the parens patriae doctrine of superior courts to make such orders.

This was an important consideration as Newfoundland and Labrador is the only current Canadian jurisdiction without specific legislative authority to grant guardianship of the person. As such, an application for guardianship of the person must be made either under the Judicature Act or the parens patriae jurisdiction of our Supreme Court. In addition to examining the jurisdiction of these types of orders, Green J.A. examined the scope of powers of the Supreme Court in making guardianship of the person orders, noting eight guiding principles for guardianship generally. These are:

(1) that there must be a need for protecting and assisting an individual in making fundamental life choices; (2) that there must be, where reasonably possible, notice to the individual and an opportunity to respond to such an application; (3) that the scope of powers of a guardianship order be evaluated on a case by case basis; (4) that the choice of guardian be considered in light of the circumstances of the application; (5) that the number of guardians be a relevant consideration given the circumstances; (6) that security may be considered in a given application; (7) that other pertinent conditions be considered depending on the circumstances; and (8) that guardians may be removed where applicable.

These principles, when analysed in greater detail demonstrate that the Supreme Court and Court of Appeal of Newfoundland and Labrador will have to more broadly consider the totality of the circumstances of a guardianship application. No longer will blanket orders covering all aspects of an individual’s life be granted on a prima facie basis. Applicants will have to demonstrate the factors of why an individual’s autonomy could be restricted; what freedoms can be preserved; who should be the guardian and why; and what other conditions or factors should be considered in an order. For practitioners and courts, this will mean that a more thorough approach to the circumstances of an application will have to be examined, and nuances in applications and orders be carefully evaluated.

The Ash decision has affirmed the powers of the Supreme Court and Court of Appeal of Newfoundland and Labrador to grant guardianship applications. This case has also narrowed the scope of guardianship orders with the aim of protecting those who are subjected to these orders, thereby creating a need for a greater examination of any given guardianship application.