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05-DV-1200
DATE: 2006/01/26
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
CUNNINGHAM A.C.J., LANE AND HACKLAND JJ.
B E T W E E N:
)
ANN GRAY by her litigation guardian JAMES GRAY Applicant andHER MAJESTY THE QUEEN IN RIGHT OF
THE PROVINCE OF ONTARIO, DALTON MCGUINTY, SANDRA PUPATELLO AND JOHN DOERespondents
))))))))))))) Brenda Hollingsworth and David Hollingsworth, for the ApplicantDennis Brown, Q.C., Lise
Favreau, Darrell Kloeze and Sean Hanley, for the Respondents
)
- and - )
)
FRANCES VENTOLA by her litigation guardian ANTONIETTA JEFFREY, KATHRINE ANNE MACPHERSON by
her litigation guardian JUANITA MACPHERSON, AND DONALD BILLINGTON by his litigation guardian
SUSAN BILLINGTONApplicantsandSANDRA PUPATELLO, HER MAJESTY THE QUEEN IN THE RIGHT OF
ONTARIO, HURONIA REGIONAL CENTRE, and MICHAEL CILLISRespondents )))))))))))))))))) R.
Douglas Elliott and Gabriel R. Fahelfor the ApplicantsDennis Brown, Q.C., Lise Favreau, Darrell Kloeze
and Sean Hanley, for the Respondents
))) Laurie S. Redden, for the Public Guardian and Trustee
)) Raj Anand and Megan E. Ferrier, for the Intervenor, Community Living Ontario
))
) HEARD: Ottawa – December 12, 13, 2005
THE JUDGMENT OF THE COURT WAS DELIVERED BY:
[1] HACKLAND, J. On September 9, 2004, the Minister of Community and Social Services (“the
Minister”) announced her decision to close the Rideau Regional Centre (RRC), Huronia Regional
Centre (HRC) and Southwestern Regional Centre (SRC) by March 31, 2009. These are the three
remaining institutions, described as Schedule I facilities, under the Developmental Services Act, R.S.O.
1990. c.D. 11. These three institutions are currently home to approximately 1000 severely
developmentally delayed adults, most of whom have lived there since childhood.
[2] The Applicants are the litigation guardians of several of the affected residents. Ann Gray
resides at the RRC. Frances Ventola, Katherine Anne Macpherson and Donald Billington reside at the
HRC. An action was commenced on behalf of Ann Gray under the Class Proceedings Act. At the same
time, an interlocutory injunction was sought to prohibit the transfer out of the RRC of any residents
without the consent of their substitute decision makers. By order dated September 29, 2005, Justice
Robert Smith ordered that the proceedings be transferred to the Divisional Court, to be dealt with
summarily pursuant to the provisions of the Judicial Review Procedure Act, see Gray v. Ontario [2005]
O.J. No. 4221. Subsequent orders of the Court directed that the application on behalf of Frances
Ventola et al. be heard by the Divisional Court at the same time. The Public Guardian and Trustee was
appointed, and made a party to these proceedings, to represent residents of RRC and HRC who are
incapable with respect to the issues in this litigation and who have no other substitute decision
maker. Community Living Ontario was granted leave to intervene as a friend of the court.
[3] The two applications for judicial review (the Gray application and the Ventola application)
seek judicial review of the decision of the Minister to close the three institutions. The Applicants’
submission is that the Developmental Services Act does not, as a matter of statutory interpretation,
give the Minister this power. The Applicants concede that if the Minister does have the power to close
all three institutions, the exercise of her discretion to do so is not open to challenge. The Applicants
also seek a declaration of the court recognizing that the consent of a resident, or his or her substitute
decision maker, is necessary for the relocation of the resident from an institutional to a community
setting.
Issues
[4] The issues to be decided in these two related judicial review applications are the following:
(1) Did the Minister exceed her jurisdiction under the Developmental Services Act by directing the
closure of the remaining Schedule I facilities (the RRC, HRC and SRC)?
(2) If the Minister acted within her jurisdiction in closing the institutions, is the Minister required to
obtain the consent of the resident or his or her next of kin or substitute decision maker to the
community placement selected for the resident? If so, how are disputes to be resolved concerning
community placement?
Issue (1) Did the Minister exceed her jurisdiction under the Developmental Services Act by directing
the closure of the remaining Schedule I facilities (the RRC, HRC and SRC)?
Background
[5] The Applicants are concerned that their family members, who have resided for many years in
these institutions, will not be able to tolerate a move to a community setting. As well, they question
whether there exists a commitment and an ability to deliver the quality of care equivalent to the
institutional care residents presently receive. The Applicants recognize that the Province of Ontario’s
program of de-institutionalization has benefited many disabled individuals. However, they believe that
this limited group of severely disabled adults, who continue to be very well looked after in these
institutional settings, are best not subjected to what, for most, will be a traumatic change in their lives.
[6] The demographics of the population in RRC, which are similar to those of the residents of the
other two institutions, are helpfully set out in paragraphs 32-41 of the Applicant Ann Gray’s factum, as
follows:
32. The residents have an average age of 54. There are at least two residents in their 80’s. The
average period of residence at RRC is 39 years, with a range of from 30 years to 54. Sixty per cent of
the residents have resided at RRC for more than 35 years.
33. Over 300 residents are profoundly retarded, while about 90 are severely retarded. These
diagnoses are defined by the American Psychiatric Association’s DSM – IV-TR and were used, at least
until 1993, by the Ministry. Residents have an IQ of less than 40. Most residents exhibit a mental age
of less than 4.
34. A significant number of residents suffer in various stages of Alzheimer’s disease and other forms
of dementia.
35. Many residents have a dual diagnosis of an emotional disability in addition to their mental
disability. Residents of RRC, in addition to their mental and emotional disabilities, are susceptible to
numerous physical disabilities too.
36. Few of the residents of RRC have significant verbal skills. Eighty percent of the residents rely
entirely upon the non-verbal communication skills of their caregivers. Non-verbal communication is
individual-specific. For non-verbal residents, the ability to communicate requires skill and substantial
time.
37. Many residents have limited self-help ability or personal hygiene skills and most lack toilet
training. Many of the residents are susceptible to frustration and react poorly to it, with a variety of
self destructive or anti-social behaviours. Seventy per cent of the residents suffer from chronic long-
term physical disabilities and are confined to wheel chairs or otherwise. Many of the residents suffer
from one or more degenerative conditions.
38. Many residents require specialized diets and adaptive devices. Some residents are not able to
feed themselves.
39. Almost half of the residents are what are referred to as total care residents, who require assistance
with most if not all of their requirements for daily living.
40. Many residents are at risk of serious injury if not properly taken care of due to:
a) Fragile bones and risk of fracture;
b) Being bedridden and at risk of bedsores and infection;
c) Accelerated aging due to the effects of their developmental disability;
d) Alzheimer’s Disease;
e) Dementia due to the effects of Downs Syndrome and otherwise;
f) The eating disorder Pica (Sufferers of Pica will compulsively eat all manner of non-food items,
leading to gastric insult. The death of the individual has been found to be the end result of this insult
in several group home environments where this has occurred.);
g) Deafness; and
h) Blindness.
41. More than 170 of the residents are destructive of property. More than 200 of the residents are
prone to self abuse and injury. More than 240 of the residents are physically aggressive and a risk to
others. An unknown number of the residents are sexually aggressive and a risk to others.
[7] I accept that these residents are severely developmentally delayed and are no doubt very
vulnerable individuals. However, it does not follow and the evidence does not establish that their
needs cannot be met in community placements. On the contrary, the evidence establishes that
individuals with this level of developmental disability have been placed successfully in community
settings since the mid-1980’s. There have been no new admissions to the three remaining institutions
for nearly 20 years.
[8] The move to de-institutionalize handicapped individuals can be traced to an influential report
prepared by the late Walter Williston entitled “Present Arrangements for the Care and Supervision of
Mentally Retarded Persons in Ontario” (1971). The author detailed the many problems associated with
the overcrowded, isolated and understaffed institutions of the day. In particular he viewed the
practice of locking away handicapped people as an affront to their human dignity and an obstacle to
achieving their individual potential. Mr. Williston saw this problem as both a quality of care and a
human rights issue. His principal recommendation was the “phasing down of large institutions for the
mentally retarded”, in favour of placing these individuals in community settings. As Sopinka J. stated
in Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 at para. 58:
A change in attitude with respect to disabled persons was initiated by the report of Walter B. Williston
entitled Present Arrangements for the Care and Supervision of Mentally Retarded Persons in Ontario
(1971). With it came a recognition of the desirability of integration and de-institutionalization.
[9] Following Mr. Williston’s recommendations, there were 19 such institutions. Today there are
three and as noted, they are to be closed by March 31, 2009. RRC, which housed as many as 2650
residents since its opening in 1951, saw its population reduce significantly. Today it is home to 412
individuals. HRC has operated continuously since 1876 and has housed as many as 2948 residents.
Today it accommodates 311 individuals.
[10] It was the evidence of the Respondents’ witness Mr. Lafranier, that:
De-institutionalization in Ontario has been implemented progressively through a series of five multi-
year plans. During the course of the first two multi-year plans from 1977 to 1981 and from 1982 to 1986,
a total of five facilities closed and the number of residents in others decreased. The third multi-year
plan, from 1987 to 1994, included the closure of five more facilities and a commitment to close all
remaining provincially operated facilities within 25 years. The fourth multi-year plan, referred to as the
Community Living Initiative, from 1996 to 2000, involved the closure of three more facilities and the
facility population was reduced by 978 residents. The multi-year plan, from 2001 to 2004, focused on
enhancing services and supports in the community and included a commitment to plan for the closure
of all the remaining facilities in Ontario.
[11] The Developmental Services Act was passed in 1974 in response to or at least in the wake
of Mr. Williston’s recommendations. Under this legislation, management of the institutions for the
developmentally disabled passed from the Minister of Health to the Minister of Community and Social
Services.
Analysis
Issue 1: Does the Minister have the power under the Developmental Services Act to close the
remaining Schedule I institutions?
[12] The relevant sections of the Developmental Services Act are the following:
Facilities established
2. (1) The Minister may establish, operate and maintain one or more facilities and may furnish such
services and assistance as he or she considers necessary upon such terms and conditions as the
Minister sees fit. R.S.O. 1990, c. D.11, s. 2 (1).
Purchase of assistance and services
(2) The Minister may by written agreement or otherwise purchase from any person, services and
assistance for or on behalf of persons with a developmental disability or believed to have a
developmental disability and may direct payment of expenditures as are necessary for these
purposes. R.S.O. 1990, c. D.11, s. 2 (2); 2001, c. 13, s. 2 (6).
Regulations
36. The Lieutenant Governor in Council may make regulations,
(a) designating facilities or classes of facilities to which this Act and the regulations apply and
limiting, restricting or exempting any such facility or class of facility from the application of any part of
the regulations;
…
(t) respecting the examination of persons and the admission, transfer, discharge and placement of
residents.
2. (1) The facilities in Schedule 1 are designated as facilities to which the Act and this Regulation
apply. R.R.O. 1990, Reg. 272, s. 2 (1); O. Reg. 124/00, s. 2 (1).
(2) Group homes are designated as a class of facility to which the Act and this Regulation apply. O.
Reg. 434/01, s. 2.
[13] I would observe that the plain wording of section 2 of the Act vests a broad discretion in the
Minister. The Minister “may” establish, operate and maintain one or more facilities. A further
discretion is obviously contemplated by the words “… and may furnish such services or assistance as
he or she considers necessary…” and again “… upon such terms and conditions as the Minister sees
fit.” Subsection 2(2) gives the Minister a further broad discretion to contract with third parties for the
delivery of services to persons with a developmental disability.
[14] I can see nothing in section 2 of the Act that would require the Minister to continue to
operate the remaining Schedule I facilities. On the contrary, the use of the permissive “may” in both
subsections 2(1) and 2(2) of the Developmental Services Act leaves the determination of how
assistance and services are to be provided to the Minister’s discretion.
[15] Subsection 29(2) of the Interpretation Act, R.S.O. 1990, c. I.11 provides that “in the English
version of an Act, the word ‘shall’ shall be construed as imperative and the word ‘may’ as permissive.”
[16] As stated in Sullivan and Driedger on the Construction of Statutes (4th ed., 1999, pp. 57-58),
the extent or scope of a discretionary power conferred by a statute depends on a contextual
interpretation of the provision and statute conferring the discretion:
When a statutory power is conferred using the word “may”, the implication is that the power is
discretionary and that its recipient can lawfully decide whether or not to exercise it. After all, if the
legislature wished to impose an obligation, it could easily have used “shall” instead of “may”.
…
In other words, the use of “may” implies discretion, but it does not preclude obligation. The
interpreter must determine whether there is anything in the statute or in the circumstances that
expressly or impliedly obliges the exercise of the power.
[17] As a general matter of statutory interpretation, the power to do a certain act includes
powers that are necessarily incidental to the performance of that act and includes the power to cease
performing that act, or to change the place or manner in which it is performed, see section 28,
Interpretation Act, R.S.O. 1990, ch. I 11.
[18] In Crawford et al. v. Ottawa Board of Education, [1971] 2 O.R. 179 at 189, the Ontario Court of
Appeal has held that the powers to “establish” and “maintain” do not include a connotation of
permanence, and necessarily include a power to close:
The Board is not under any obligation to maintain, in the sense of "to perpetuate" any particular
school it establishes. "Maintain" in the Ontario Acts is not a direction to keep forever. It encompasses
only authority and obligation to expend money upon the school and keep it in operation so long as the
Board feels that it is desirable to do so for the provision of the educational needs of the pupils for
whom it is responsible. "Maintain" in my view means the duty from year to year to keep up the
operation of the school so long as the Board is of the opinion that such school should be operated as
an appropriate means of discharging its duty to provide accommodation for its pupils. The direction to
maintain is not inconsistent to discontinue the operation of any particular school or class when it
deems it can otherwise discharge the obligation imposed upon it to provide educational facilities for
its pupils.
To require the perpetuation of a school entity as originally established would be destructive of the
primary aim of the educational system to provide at all times the best possible form of education
according to the ever-changing standards of succeeding generations. If this concept of maintenance
were carried to its ridiculous conclusion, some schools would be required still to be heated by wood
stoves and lighted by lamps and would have the pupils writing upon slates.
[19] The Crawford decision was recently followed by this Court in Gigliotti v. Conseil d’
Administration du Collège des Grands Lacs (2005), 76 O.R. (3d) 561. In Gigliotti it was argued that the
Minister lacked the power to close a community college under Section 5 of the Ministry of Training,
Colleges and Universities Act, which stated:
Subject to the approval of the Lieutenant Governor in Council, the Minister may establish, name,
maintain, conduct and govern colleges of applied arts and technology that offer programs of
instruction in one or more fields of vocational, technological, general and recreational education and
training in day and evening courses and for full-time or part-time students.
[20] The Divisional Court held that the decision was made within the Minister’s discretionary
power and should therefore receive the highest standard of deference, namely patent
unreasonableness. Moreover, it was held that the Minister’s power to establish and maintain colleges
of applied arts and technology included the power to disestablish or close such institutions. The Court
stated at p. 579:
[58] We reject the submission it is necessary for a statute to specifically grant the Minister power to
close a particular institution for the sole reason that other statutes do provide for such a power. Our
Supreme Court has held that the mere fact other statutes explicitly provide for a certain power cannot
be interpreted to mean that a Minister requires the explicit grant of that particular power.
[21] The Applicants would distinguish the Crawford and Gigliotti decisions on the basis that they
deal with the closure of a single institution, whereas in the instant case the Minister’s decision deals
with the closure of all remaining Schedule I facilities. The Applicants say this amounts to the closure of
a “complete delivery system”. I do not accept this argument. The Developmental Services Act
provides the Minister with a broad discretion in the manner of delivery of services to the
developmentally disabled. Based on the established authorities, the discretion to establish, operate
and maintain one or more facilities includes the right to close such facilities subject only to
substantive review for patent unreasonableness. As stated previously, the Applicants have based
their challenge to the Minister’s decision on the alleged absence of any power in the Developmental
Services Act to close all Schedule I institutions, not on a substantive challenge to the reasonableness
of the Minister’s decision.
[22] The Applicants rely on the decision in Re Doctors Hospital and Minister of Health (1976), 12
O.R. (2d) 164 (Div. Ct.) to argue that Cabinet does not have legislative authority to close the three
remaining institutions. The legislative scheme in Doctors Hospital is distinguishable from the
discretionary powers given to the Minister under the Developmental Services Act. In particular, in
Doctors Hospital the Divisional Court found that the Lieutenant-Governor in Council was not
authorized to revoke the hospitals’ approval as a public hospital for fiscal reasons, because such
reasons were beyond the policy objective of the Public Hospitals Act, which was in fact a regulatory
statute. In this case, the Developmental Services Act is far more than a regulatory statute. The Act
sets out different mechanisms through which the Minister can arrange to provide assistance and
services to people with developmental disabilities, including directly at province-run facilities or
indirectly through the purchase of assistance and services from third parties. The Minister’s decision
to use one mechanism rather than another cannot be said to fall outside of the legislative intent or
purpose of the Developmental Services Act.
[23] The decision in Payne v. Ontario (Minister or Energy, Science and Technology), [2002] O.J.
No. 2566, relied on by the Applicants, is also distinguishable from this case. In Payne, the Court
concluded that the Crown was not entitled to transfer the shares of Hydro One. While the Electricity
Act did give Ontario the authority to “acquire and hold shares”, it did not contemplate privatization and
could therefore not be interpreted as allowing the transfer of those shares. In contrast, the
Developmental Services Act specifically provides that assistance and services can be provided in a
number of different ways, including in group homes. Accordingly, I see no basis for the Applicants’
argument that the announced closures, resulting in the transfer of residents to community residential
settings, fall outside of the Minister’s authority.
[24] The Applicants argue that the Developmental Services Act was enacted in the aftermath of
the Williston Report. Therefore, a contextual interpretation of that statute would recognize Mr.
Williston’s belief that institutional care had a continuing, if limited role, in the care of the
developmentally disabled. The point is made that the Act should not be interpreted to allow the
complete discontinuance of institutional care thereby doing away with the “safety net” that these
institutions may provide. With respect, my interpretation of Mr. Williston’s position is that institutional
care should be retained for only so long as it is strictly required, i.e. until community based resources
can be developed to meet the resident’s needs. Mr. Williston stated at p. 68-69 of his report:
16. Lastly, I suggest that a century of failure and inhumanity in the large multi-purpose residential
hospitals for the retarded should, in itself, be enough to warn of the inherent weakness in the system
and inspire us to look for some better solution.
While I recommend that the use of large institutions for the mentally retarded in the province be
phased down I do not say that they should be abolished in their entirety. In the first place, the large
hospital school must not be dismantled, without anything being put in its place. We cannot abolish the
present facilities until the resources of the community have been mobilized to care for the mentally
retarded in a better way. An increase in the load placed upon local health and social services without a
great increase in their resources would inevitably worsen the plight of the handicapped. It would not
be possible to empty a large number of the residents from the institutions and expect the public to
instantaneously absorb them. Many parents who have become accustomed to having their problems
stowed a long way away would now be shocked at the prospect of the return of their child. By now,
many of the residents themselves have come to regard the institutions as their homes. Having been
isolated for many years with little socialization with other members of the community, a mentally
retarded person dramatically introduced to a world of few restraints would encounter almost
insurmountable problems. These institutions have over the years acquired staff with special skills
trained to deal with the mentally retarded. They should not now be entirely disbanded.
If, by severe restrictions on admissions and an intensive drive to rehabilitate those who could be
absorbed into the community, the present institutions, after demolishing the more decrepit buildings,
were cut down to, say, 40% of their present capacity, they might well play an important part in the whole
system for some years to come …
[25] In my opinion, the Minister’s powers under section 2 of the Developmental Services Act
should be interpreted broadly. This is necessary to give her the flexibility to provide services to the
Applicants, and other residents of the remaining institutions, in accordance with developing
knowledge, up to date practices, and the existence of community resources and expertise for the care
of developmentally disabled adults. This approach would reflect the broad and permissive wording of
section 2 of the Act and the recommendations of the Williston Report, to the extent such
recommendations can be said to be reflected in the Act. I also am guided by the words of McLachlin C.
J.C., as to the need for a dynamic interpretation of statutes to meet current realities, see R. v. 974649
Ont. Inc., [2001] 3 S.C.R. 575 at 594-595:
[38] This argument, however, rests on an overly narrow view of legislative intention. The intention of
Parliament or the legislatures is not frozen for all time at the moment of a statute's enactment, such
that a court interpreting the statute is forever confined to the meanings and circumstances that
governed on that day. Such an approach risks frustrating the very purpose of the legislation by
rendering it incapable of responding to the inevitability of changing circumstances. Instead, we
recognize that the law speaks continually once adopted: Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807,
at p. 814; see also Interpretation Act, R.S.O. 1990, c. I.11, s. 4. Preserving the original intention of
Parliament or the legislatures frequently requires a dynamic approach to interpreting their enactments,
sensitive to evolving social and material realities. While the courts strive ultimately to give effect to
legislative intention, the will of the legislature must be interpreted in light of prevailing, rather than
historical, circumstances: see, for example, Symes v. Canada, [1993] 4 S.C.R. 695, at pp. 727-29 (per
Iacobucci J.), and pp. 793-94 (per L'Heureux-Dubé J., dissenting); Tataryn, supra, at pp. 814-15.
[26] In summary, I conclude that the Minister was acting within the authority given to her by
section 2 of the Developmental Services Act when she exercised her discretion to close the three
remaining Schedule I facilities, by March 31, 2009. In view of this conclusion and the fact that the
Applicants have not challenged the reasonableness of the exercise of the Minister’s discretion, it is
unnecessary to embark on a discussion of the standard of review applicable to the exercise of her
discretion.
Issue (2) If the Minister acted within her jurisdiction in closing the institutions, is the Minister required
to obtain the consent of the resident or his or her next of kin or substitute decision maker to the
community placement selected for the resident? If so, how are disputes to be resolved concerning
community placements?
[27] The Applicants submit that the consent of the current residents of the three institutions, or
where required of their substitute decision makers, is necessary with respect to any relocation from
their current institutional placements. They argue that in some cases, community placements and the
pre-planning involved, is being carried out without regard to the wishes of the residents’ next of kin.
The Respondents do not concede that consent of the residents is required. The Respondents state
that the active involvement of family members is encouraged whenever possible and as a matter of
fact, no community placement has occurred without the consent, expressed or implied, of the next of
kin or the office of the Official Guardian and Trustee.
[28] It is therefore necessary to consider the question of whether consent is required of the
incapacitated residents or their substitute decision maker for changes to their current institutional
placements. If so, does the Ministry’s process accommodate the requirement? Lastly, what procedure
should be followed in the event of a disagreement between a substitute decision maker and the
Ministry as to the appropriate residential placement of any current resident of the three institutions?
[29] I observe that the evidentiary record before the court does not allow me to determine
whether and to what extent the involvement of the next of kin has occurred in the community
placements that have occurred to date. The Applicants, and many other next of kin, have chosen not
to participate further in the community placement planning process, at least until the basic question is
decided as to whether the Minister acted lawfully in directing the closure of the Schedule I facilities.
However, as this is an ongoing process involving the fundamental interests of this large group of
developmentally disabled adults, these issues have an important practical application and are neither
academic nor moot.
[30] I am of the opinion that the consent of the residents of these institutions is required with
reference to their respective residential placements in the community. In nearly all cases, due to the
severe level of intellectual disability of this group, this consent will come from the appropriate
substitute decision maker, as recognized by law.
[31] Consent to a particular residential placement is required due to the fundamental
importance of this issue to the developmentally disabled person. The typical demographic of this
group has previously been described in paragraph 6 of these reasons. Due to their vulnerability,
inappropriate residential placements have the likelihood of being harmful and may be life threatening
to many of these profoundly affected adults. The provision of consent by a substitute decision maker
may be seen in some cases as a circumstantial guarantee of suitable placement. Perhaps more
importantly, the refusal of consent by a substitute decision maker will serve to require further
consideration or an adjudication of the issue, so as to operate as a safeguard against erroneous
decisions. In any event, the requirement for consent accords respect to the disabled person.
[32] Adults of normal capacity make their own decisions about where they choose to live. It
cannot be right that an intellectually incapable adult has no such right, simply because of his or her
incapacity. It is significant that the health and safety of disabled persons can be dependent upon
obtaining a suitable residential placement where their needs can be properly met. The Supreme Court
of Canada has recently held that while the Charter does not confer a free-standing constitutional right
to health care, any statutory scheme in place must comply with the Charter and an aspect of any such
scheme that impinges on the life, liberty and security of the person in an arbitrary fashion that fails to
conform to the principles of fundamental justice, violates the Charter, see Chaoulli v. Quebec (Attorney
General), [2005] 1 S.C.R. 791 at para. 104. It may be that an administrative program that places
vulnerable individuals in community settings without their consent, and if their well-being is thereby
endangered, may violate their Charter protected interests. While the requirement for consent to the
placement of a developmentally disabled adult is at first instance a common law issue, the common law
must be interpreted in a manner consistent with Charter values, see Hill v. Church of Scientology of
Toronto [1995] 2 S.C.R. 1130 and RWDSU, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002]
1 S.C.R. 156.
[33] In summary, I am of the opinion that the consent of a developmentally disabled adult or his
or her substitute decision maker is required to any choice of community residential placement. This is
because of the direct and substantial affect this choice will have on the individual’s health, safety and
personal welfare and is in accordance with the principles of fundamental justice. It is well within the
recognized jurisdiction of the Superior Court of Justice in the exercise of its parens patriae
jurisdiction to declare this right and to see that it is respected.
[34] The foregoing discussion is not to imply that the Respondents’ approach to placing the
current institutional residents into community settings has been inappropriate. Indeed, the affidavit
materials filed by Mr. Lafranier and Mr. Ock describing the entire undertaking, known as “The Facilities
Initiative”, reflect a well considered process. It focuses on assessing the often complex needs of the
individual, finding an appropriate placement among the labyrinth of some 370 community based care
providers and it provides a mechanism for addressing post-placement follow up issues. Apart from the
Respondents’ alleged failure to recognize the residents’ rights with respect to the issue of consent,
neither the Applicants nor the Official Guardian and Trustee were critical of the Ministry’s process for
identifying and implementing appropriate community placement for these residents.
[35] There are of course some important nuances to the substitute decision maker’s role in this
process. The issues can be complex from both a medical and legal perspective. As a result, the family
member or next of kin’s role may be primarily consultative, apart from the ultimate decision of whether
or not to consent to the recommended placement. In some cases, relatives have had little or no
ongoing contact with the resident for many years. The Williston Report points out that for some years it
was institutional policy to discourage family contacts with the resident.
[36] Where the family member is not well-known, identifying and understanding the medical and
social needs of an individual with complex medical and psychiatric issues, might be beyond the
capabilities of many relatives who are invited to participate in the process. The incapacitated person
must be encouraged to participate as much as possible; however, many are non-verbal and their input
will be limited. Even more complex is the task of understanding, locating and assessing the community
based residence placements and support organizations who will assume the resident’s care. The
Respondents involve experts, as required, and family consultation wherever possible, as part of that
process. The Ministry’s approach to obtaining consent from the resident or his or her next of kin is
reflected in the “Guiding Principles” of the Ministry’s Planning Framework, which I quote:
Individual Planning
§ There will be a comprehensive plan tailored to each individual.
Flexiblity and Choice
§ Individuals will have the opportunity and support to make informed decisions about their lives.
§ An individual’s decision in relation to location and type of living arrangements, maintenance of
friendship and family ties and other supports and services should be given primary consideration.
§ Planning for supports and services for individuals will be flexible and respectful of cultural,
language, religious beliefs and lifestyle choices.
§ Wherever possible, individuals will have the opportunity to live close to their families or friends.
§ Wishes of the individual and those of their families will be balanced with the available resources
and community capacity to respond to their needs.
Fairness
§ In those situations where an individual does not have family or friends independent of the
service system to effectively assist, a neutral third party will be identified to participate in the process.
§ Planning for all individuals will involve existing community processes, including access
mechanisms, service planning, and service resolution.
Inclusion
§ An individual should have the opportunity to live, work and participate with other members of the
community.
§ Supports for individuals should include existing community services as required.
Health and Independence
§ Supports and services will promote the physical and emotional well being of individuals in
settings that foster healthy and independent living. Individuals will not leave facilities until
arrangements and supports are in place.
§ Specialized supports and services as required will be provided or developed.
[37] The Respondents placed in the record a document entitled, “The Facilities Initiative
Planning Framework”. It outlines how the Ministry will plan for a person leaving a facility to a setting
that can support the individual’s needs. This process provides that where an individual does not have
family or friends independent of the service system to effectively assist, a neutral third party will be
identified to participate in the process. The neutral third party is identified and appointed by the
Ministry’s regional office. He or she is expected to participate in all aspects of the planning – from the
development of the resident’s Personal Plan through to the review and follow up of the individual
Transition Support Plan.
[38] Of the residents in the three closing facilities, approximately 80 individuals have been
identified as having no family to assist them with planning or to give their perspective on planning.
The absence of family involvement in the life of a resident can result from the family’s wish not to be
involved or could arise where family members cannot be located. The Ministry uses the term “citizens
of the world” to reference this group. These individuals are assisted and represented by the office of
the Public Guardian and Trustee for health treatment and financial purposes under the respective
Health Care Consent Act, 1996, S.O. 1996, c.2 and Substitute Decisions Act, 1992, S.O. 1992, c.30. These
individuals are assisted in other decisions by a neutral third party identified at the onset of planning,
as discussed previously.
[39] The placement process involves the preparation of a Personal Plan for the individual,
prepared by the regional placement facilitator and staff. A non-identifying profile of the resident is
presented to the appropriate community based planning agencies. The regional project manager,
community planning table and regional placement facilitator identify the most appropriate agency. The
community planning table and the Ministry, who contracts to fund the agency, make the decision about
the choice of the new residence of the individual. However, the perspectives and input of family or
significant persons to the resident are taken into account.
[40] The commendable aim of this group decision-making process is to reach a consensus on
the often complex issue of what community placement best meets the resident’s needs. However, it
must be remembered that the consensus must include the resident or his or her next of kin or
substitute decision maker. The consent of the next of kin or substitute decision maker must be
obtained. Disagreements may be resolved through the existing legal avenues, as discussed below.
[41] I turn now to the current legal framework governing the provision of consent, as it relates
to the proposed community residential placements of the current residents of the closing institutions.
The evidence establishes that many, if not all, of the residents of the three institutions lack capacity to
make an informed decision about a transfer to a group home. In my opinion, the issues likely to arise in
implementing the community placements may, in whole or in part, be covered by the provisions of the
Health Care Consent Act, 1996 or the Substitute Decisions Act, 1992. To the extent they are not, this
Court will exercise its inherent parens patriae jurisdiction for the protection of the welfare of these
mentally incapable adults.
[42] Because the remedial provisions of the Substitute Decisions Act, 1992 and the Health Care
Consent Act, 1996 and the common law parens patriae jurisdiction are available in the circumstances
herein, it is unnecessary to embark on a discussion of the Charter issues that would otherwise arise.
[43] The Health Care Consent Act, 1996 sets out a process by which a temporary substitute
decision maker can give or refuse consent on behalf of an incapable person for decisions relating to
the admission to a care facility, relating to treatment or relating to the provision of personal assistance
services. A “care facility” is defined in section 2(1) of the Act. It includes specified nursing homes but
does not include group homes or other community settings for developmentally challenged adults.
Accordingly, this Act will govern the limited number of residents who may be considered for admission
to certain nursing homes. In those cases, the Act will apply to require a substitute decision maker to
give or refuse consent to admission to the facility. For incapable residents whose location will be to a
group home, the provisions of this Act have no application.
[44] The Substitute Decisions Act, 1992 does not directly address the issue of consent in
relation to the admission of an incapable person to a group home or other community setting. In some
cases it will apply, depending on the incapable person’s abilities and the terms of any order of the
Court. This Act came into force in April 1995, replacing the former Mental Incompetency Act and some
provisions of the Powers of Attorney Act. This Act sets out the law and procedure by which guardians
of property and the guardians for personal care are appointed by the Superior Court of Justice.
[45] The test for incapacity for personal care is set out in section 45 of the Act:
A person is incapable of personal care if the person is not able to understand information that is
relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing,
hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision
or lack of decision.
[46] For the purpose of appointment of a guardian for personal care, assessments of mental
capacity are conducted by capacity assessors who are members of one of the regulated health
professions. Sections 55, 58, 59 and 60 of the Substitute Decisions Act govern the appointment of
guardians. These sections are set out below:
Court appointment of guardian of the person
55. (1) The court may, on any person’s application, appoint a guardian of the person for a person
who is incapable of personal care and, as a result, needs decisions to be made on his or her behalf by
a person who is authorized to do so. 1992, c. 30, s. 55 (1).
Prohibition
(2) The court shall not appoint a guardian if it is satisfied that the need for decisions to be made
will be met by an alternative course of action that,
(a) does not require the court to find the person to be incapable of personal care; and
(b) is less restrictive of the person’s decision-making rights than the appointment of a
guardian. 1992, c. 30, s. 55 (2).
Finding of incapacity
58. (1) An order appointing a guardian of the person shall include a finding that the person is
incapable in respect of the functions referred to in section 45, or in respect of some of them, and, as a
result, needs decisions to be made on his or her behalf by a person who is authorized to do so. 1992,
c. 30, s. 58 (1).
Contents of order
(2) An order appointing a guardian may,
(a) make the appointment for a limited period as the court considers appropriate;
(b) impose such other conditions on the appointment as the court considers appropriate. 1992,
c. 30, s. 58 (2).
Full or partial guardianship
(3) The order shall specify whether the guardianship is full or partial. 1992, c. 30, s. 58 (3).
Full guardianship
59. (1) The court may make an order for full guardianship of the person only if the court finds that
the person is incapable in respect of all the functions referred to in section 45. 1992, c. 30, s. 59 (1).
Powers of guardian
(2) Under an order for full guardianship, the guardian may,
(a) exercise custodial power over the person under guardianship, determine his or her living
arrangements and provide for his or her shelter and safety;
(b) be the person’s litigation guardian, except in respect of litigation that relates to the person’s
property or to the guardian’s status or powers;
(c) settle claims and commence and settle proceedings on the person’s behalf, except claims and
proceedings that relate to the person’s property or to the guardian’s status or powers;
(d) have access to personal information, including health information and records, to which the
person could have access if capable, and consent to the release of that information to another person,
except for the purposes of litigation that relates to the person’s property or to the guardian’s status or
powers;
(e) on behalf of the person, make any decision to which the Health Care Consent Act, 1996
applies;
(e.1) make decisions about the person’s health care, nutrition and hygiene;
(f) make decisions about the person’s employment, education, training, clothing and recreation
and about any social services provided to the person; and
(g) exercise the other powers and perform the other duties that are specified in the order. 1992,
c. 30, s. 59 (2); 1996, c. 2, s. 37 (1).
Partial guardianship
60. (1) The court may make an order for partial guardianship of the person for an incapable person
if it finds that he or she is incapable in respect of some but not all of the functions referred to in
section 45. 1992, c. 30, s. 60 (1).
Same
(2) The order shall specify in respect of which functions the person is found to be incapable. 1992,
c. 30, s. 60 (2).
Powers of guardian
(3) Under an order for partial guardianship, the guardian may exercise those of the powers set out
in subsections 59 (2), (3), (4) and (5) that are specified in the order. 1996, c. 2, s. 38.
[47] Section 55(2) of the Act is of particular significance. It contemplates that where alternatives
to the appointment of a guardian will allow for decisions to be made concerning an individual’s
personal care, this is to be preferred to a guardianship order, which requires a finding that the person
is incapable of personal care. The Ministry’s current process has not required the appointment of a
guardian in support of the “supported decision making” process, which in many cases will be
consistent with the words and the intention of section 55(2) of the Act. As argued by counsel for the
Intervenor, Ontario Community Living, a process short of full or partial guardianship is preferable in
many cases, as it best recognizes the autonomy and dignity of the individual and the inclusiveness of
the decision-making process. There are approximately 1000 individuals who will be transferred from
these three institutions; their capacities and their needs in reference to the decision-making process
will differ significantly. It is not possible to dictate a process for obtaining consent to community
placements that will apply in every case. However, the objective will always be the same, which is to
act in the best interests of the incapable person.
[48] Section 68 of the Substitute Decisions Act, 1992, provides a mechanism for a guardian, an
attorney under a Power of Attorney for personal care, the Public Guardian and Trustee, or any other
person with leave of the Court, to obtain the Court’s direction “on any question” arising in the
guardianship. Section 68 states:
Directions from court
68. (1) If an incapable person has a guardian of the person or an attorney under a power of attorney
for personal care, the court may give directions on any question arising in the guardianship or under
the power of attorney. 1996, c. 2, s. 44.
Form of request
(2) A request for directions shall be made,
(a) on application, if no guardian of the person has been appointed under section 55 or 62; or
(b) on motion in the proceeding in which the guardian was appointed, if a guardian of the person has
been appointed under section 55 or 62. 1996, c. 2, s. 44.
Applicant; moving party
(3) An application or motion under this section may be made by the incapable person’s guardian of
the person, attorney under a power of attorney for personal care, dependant, guardian of property or
attorney under a continuing power of attorney, by the Public Guardian and Trustee, or by any other
person with leave of the court. 1996, c. 2, s. 44.
Order
(4) The court may by order give such directions as it considers to be for the benefit of the person
and consistent with this Act. 1996, c. 2, s. 44.
Variation of order
(5) The court may, on motion by a person referred to in subsection (3), vary the order. 1996, c. 2, s.
44.
A disagreement between a guardian or attorney for personal care and the Ministry concerning the
appropriateness, timing or any other aspect of a proposed community placement, would properly be
brought before the Court under this section by any appropriate person.
[49] Section 68 of the Substitute Decisions Act, 1992 is limited by its own terms to matters arising
in a guardianship or Power of Attorney for personal care. In many cases, the Act will not apply because
the incapacitated resident has neither a guardian nor attorney to represent his or her interests. In that
event, directions should be sought from the Superior Court of Justice under its inherent parens
patriae jurisdiction.
[50] The Substitute Decisions Act, 1992 operates to codify certain matters that would otherwise
fall within the Court’s common law parens patriae jurisdiction. However, the Act does not otherwise
limit this important historical power to protect the interests of children and incapacitated adults. It has
been recognized that the parens patriae jurisdiction can be exercised where there is no applicable
statutory scheme in place or where there is a “gap” in the existing legislative framework, see Dumas v.
Dumas, [1992] 10 O.R. (3d) 20 at 24 (Gen. Div.). In E. (Mrs.) v. Eve, Justice La Forest stated that the
parens patriae jurisdiction “continues to this day, and even where there is legislation in the area, the
courts will continue to use the parens patriae jurisdiction to deal with uncontemplated situations
where it appears necessary to do so for the protection of those who fall within its ambit.” See E. (Mrs.)
v. Eve, [1986] 23 S.C.R. 388 at 410-11.
The two applications for judicial review herein are otherwise dismissed.
[54] If the Applicants wish to make submissions as to costs they may do so within 14 days of the
release of this decision and the Respondents may reply within 14 days from the receipt of the
Applicants’ submissions.
__________________________________________
The Honourable Mr. Justice Charles T. Hackland
__________________________________________
I AGREE CUNNINGHAM A.C.J.
__________________________________________
I AGREE LANE J.
Released: January 26, 2006
COURT FILE NO.: 05-DV-1152
05-DV-1200
DATE: 2006/01/26
ONTARIOSUPERIOR COURT OF JUSTICE(DIVISIONAL COURT)B E T W E E N:ANN GRAY by her litigation
guardian JAMES GRAY (Applicant) - and - HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF
ONTARIO et al. (Respondents)- and -FRANCES VENTOLA by her litigation guardian ANTONIETTA JEFFREY
et al.(Applicants) - and - SANDRA PUPATELLO et al. (Respondents)REASONS FOR JUDGMENTHACKLAND
J.
Released: January 26, 2006
COURT FILE NO.: 05-DV-1152
05-DV-1200
DATE: 2006/01/26
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
CUNNINGHAM A.C.J., LANE AND HACKLAND JJ.
B E T W E E N: )
)
ANN GRAY by her litigation guardian JAMES GRAYApplicantandHER MAJESTY THE QUEEN IN RIGHT OF
THE PROVINCE OF ONTARIO, DALTON MCGUINTY, SANDRA PUPATELLO AND JOHN DOERespondents
))))))))))))) Brenda Hollingsworth and David Hollingsworth, for the ApplicantDennis Brown, Q.C., Lise
Favreau, Darrell Kloeze and Sean Hanley, for the Respondents
)
- and - )
)
FRANCES VENTOLA by her litigation guardian ANTONIETTA JEFFREY, KATHRINE ANNE MACPHERSON by
her litigation guardian JUANITA MACPHERSON, AND DONALD BILLINGTON by his litigation guardian
SUSAN BILLINGTONApplicantsandSANDRA PUPATELLO, HER MAJESTY THE QUEEN IN THE RIGHT OF
ONTARIO, HURONIA REGIONAL CENTRE, and MICHAEL CILLISRespondents )))))))))))))))))) R.
Douglas Elliott and Gabriel R. Fahelfor the ApplicantsDennis Brown, Q.C., Lise Favreau, Darrell Kloeze
and Sean Hanley, for the Respondents
))) Laurie S. Redden, for the Public Guardian and Trustee
)) Raj Anand and Megan E. Ferrier, for the Intervenor, Community Living Ontario
))
) HEARD: Ottawa – December 12, 13, 2005
THE JUDGMENT OF THE COURT WAS DELIVERED BY:
[1] HACKLAND, J. On September 9, 2004, the Minister of Community and Social Services (“the
Minister”) announced her decision to close the Rideau Regional Centre (RRC), Huronia Regional
Centre (HRC) and Southwestern Regional Centre (SRC) by March 31, 2009. These are the three
remaining institutions, described as Schedule I facilities, under the Developmental Services Act, R.S.O.
1990. c.D. 11. These three institutions are currently home to approximately 1000 severely
developmentally delayed adults, most of whom have lived there since childhood.
[2] The Applicants are the litigation guardians of several of the affected residents. Ann Gray
resides at the RRC. Frances Ventola, Katherine Anne Macpherson and Donald Billington reside at the
HRC. An action was commenced on behalf of Ann Gray under the Class Proceedings Act. At the same
time, an interlocutory injunction was sought to prohibit the transfer out of the RRC of any residents
without the consent of their substitute decision makers. By order dated September 29, 2005, Justice
Robert Smith ordered that the proceedings be transferred to the Divisional Court, to be dealt with
summarily pursuant to the provisions of the Judicial Review Procedure Act, see Gray v. Ontario [2005]
O.J. No. 4221. Subsequent orders of the Court directed that the application on behalf of Frances
Ventola et al. be heard by the Divisional Court at the same time. The Public Guardian and Trustee was
appointed, and made a party to these proceedings, to represent residents of RRC and HRC who are
incapable with respect to the issues in this litigation and who have no other substitute decision
maker. Community Living Ontario was granted leave to intervene as a friend of the court.
[3] The two applications for judicial review (the Gray application and the Ventola application)
seek judicial review of the decision of the Minister to close the three institutions. The Applicants’
submission is that the Developmental Services Act does not, as a matter of statutory interpretation,
give the Minister this power. The Applicants concede that if the Minister does have the power to close
all three institutions, the exercise of her discretion to do so is not open to challenge. The Applicants
also seek a declaration of the court recognizing that the consent of a resident, or his or her substitute
decision maker, is necessary for the relocation of the resident from an institutional to a community
setting.
Issues
[4] The issues to be decided in these two related judicial review applications are the following:
(1) Did the Minister exceed her jurisdiction under the Developmental Services Act by directing the
closure of the remaining Schedule I facilities (the RRC, HRC and SRC)?
(2) If the Minister acted within her jurisdiction in closing the institutions, is the Minister required to
obtain the consent of the resident or his or her next of kin or substitute decision maker to the
community placement selected for the resident? If so, how are disputes to be resolved concerning
community placement?
Issue (1) Did the Minister exceed her jurisdiction under the Developmental Services Act by directing
the closure of the remaining Schedule I facilities (the RRC, HRC and SRC)?
Background
[5] The Applicants are concerned that their family members, who have resided for many years in
these institutions, will not be able to tolerate a move to a community setting. As well, they question
whether there exists a commitment and an ability to deliver the quality of care equivalent to the
institutional care residents presently receive. The Applicants recognize that the Province of Ontario’s
program of de-institutionalization has benefited many disabled individuals. However, they believe that
this limited group of severely disabled adults, who continue to be very well looked after in these
institutional settings, are best not subjected to what, for most, will be a traumatic change in their lives.
[6] The demographics of the population in RRC, which are similar to those of the residents of the
other two institutions, are helpfully set out in paragraphs 32-41 of the Applicant Ann Gray’s factum, as
follows:
32. The residents have an average age of 54. There are at least two residents in their 80’s. The
average period of residence at RRC is 39 years, with a range of from 30 years to 54. Sixty per cent of
the residents have resided at RRC for more than 35 years.
33. Over 300 residents are profoundly retarded, while about 90 are severely retarded. These
diagnoses are defined by the American Psychiatric Association’s DSM – IV-TR and were used, at least
until 1993, by the Ministry. Residents have an IQ of less than 40. Most residents exhibit a mental age
of less than 4.
34. A significant number of residents suffer in various stages of Alzheimer’s disease and other forms
of dementia.
35. Many residents have a dual diagnosis of an emotional disability in addition to their mental
disability. Residents of RRC, in addition to their mental and emotional disabilities, are susceptible to
numerous physical disabilities too.
36. Few of the residents of RRC have significant verbal skills. Eighty percent of the residents rely
entirely upon the non-verbal communication skills of their caregivers. Non-verbal communication is
individual-specific. For non-verbal residents, the ability to communicate requires skill and substantial
time.
37. Many residents have limited self-help ability or personal hygiene skills and most lack toilet
training. Many of the residents are susceptible to frustration and react poorly to it, with a variety of
self destructive or anti-social behaviours. Seventy per cent of the residents suffer from chronic long-
term physical disabilities and are confined to wheel chairs or otherwise. Many of the residents suffer
from one or more degenerative conditions.
38. Many residents require specialized diets and adaptive devices. Some residents are not able to
feed themselves.
39. Almost half of the residents are what are referred to as total care residents, who require assistance
with most if not all of their requirements for daily living.
40. Many residents are at risk of serious injury if not properly taken care of due to:
a) Fragile bones and risk of fracture;
b) Being bedridden and at risk of bedsores and infection;
c) Accelerated aging due to the effects of their developmental disability;
d) Alzheimer’s Disease;
e) Dementia due to the effects of Downs Syndrome and otherwise;
f) The eating disorder Pica (Sufferers of Pica will compulsively eat all manner of non-food items,
leading to gastric insult. The death of the individual has been found to be the end result of this insult
in several group home environments where this has occurred.);
g) Deafness; and
h) Blindness.
41. More than 170 of the residents are destructive of property. More than 200 of the residents are
prone to self abuse and injury. More than 240 of the residents are physically aggressive and a risk to
others. An unknown number of the residents are sexually aggressive and a risk to others.
[7] I accept that these residents are severely developmentally delayed and are no doubt very
vulnerable individuals. However, it does not follow and the evidence does not establish that their
needs cannot be met in community placements. On the contrary, the evidence establishes that
individuals with this level of developmental disability have been placed successfully in community
settings since the mid-1980’s. There have been no new admissions to the three remaining institutions
for nearly 20 years.
[8] The move to de-institutionalize handicapped individuals can be traced to an influential report
prepared by the late Walter Williston entitled “Present Arrangements for the Care and Supervision of
Mentally Retarded Persons in Ontario” (1971). The author detailed the many problems associated with
the overcrowded, isolated and understaffed institutions of the day. In particular he viewed the
practice of locking away handicapped people as an affront to their human dignity and an obstacle to
achieving their individual potential. Mr. Williston saw this problem as both a quality of care and a
human rights issue. His principal recommendation was the “phasing down of large institutions for the
mentally retarded”, in favour of placing these individuals in community settings. As Sopinka J. stated
in Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241 at para. 58:
A change in attitude with respect to disabled persons was initiated by the report of Walter B. Williston
entitled Present Arrangements for the Care and Supervision of Mentally Retarded Persons in Ontario
(1971). With it came a recognition of the desirability of integration and de-institutionalization.
[9] Following Mr. Williston’s recommendations, there were 19 such institutions. Today there are
three and as noted, they are to be closed by March 31, 2009. RRC, which housed as many as 2650
residents since its opening in 1951, saw its population reduce significantly. Today it is home to 412
individuals. HRC has operated continuously since 1876 and has housed as many as 2948 residents.
Today it accommodates 311 individuals.
[10] It was the evidence of the Respondents’ witness Mr. Lafranier, that:
De-institutionalization in Ontario has been implemented progressively through a series of five multi-
year plans. During the course of the first two multi-year plans from 1977 to 1981 and from 1982 to 1986,
a total of five facilities closed and the number of residents in others decreased. The third multi-year
plan, from 1987 to 1994, included the closure of five more facilities and a commitment to close all
remaining provincially operated facilities within 25 years. The fourth multi-year plan, referred to as the
Community Living Initiative, from 1996 to 2000, involved the closure of three more facilities and the
facility population was reduced by 978 residents. The multi-year plan, from 2001 to 2004, focused on
enhancing services and supports in the community and included a commitment to plan for the closure
of all the remaining facilities in Ontario.
[11] The Developmental Services Act was passed in 1974 in response to or at least in the wake
of Mr. Williston’s recommendations. Under this legislation, management of the institutions for the
developmentally disabled passed from the Minister of Health to the Minister of Community and Social
Services.
Analysis
Issue 1: Does the Minister have the power under the Developmental Services Act to close the
remaining Schedule I institutions?
[12] The relevant sections of the Developmental Services Act are the following:
Facilities established
2. (1) The Minister may establish, operate and maintain one or more facilities and may furnish such
services and assistance as he or she considers necessary upon such terms and conditions as the
Minister sees fit. R.S.O. 1990, c. D.11, s. 2 (1).
Purchase of assistance and services
(2) The Minister may by written agreement or otherwise purchase from any person, services and
assistance for or on behalf of persons with a developmental disability or believed to have a
developmental disability and may direct payment of expenditures as are necessary for these
purposes. R.S.O. 1990, c. D.11, s. 2 (2); 2001, c. 13, s. 2 (6).
Regulations
36. The Lieutenant Governor in Council may make regulations,
(a) designating facilities or classes of facilities to which this Act and the regulations apply and
limiting, restricting or exempting any such facility or class of facility from the application of any part of
the regulations;
…
(t) respecting the examination of persons and the admission, transfer, discharge and placement of
residents.
2. (1) The facilities in Schedule 1 are designated as facilities to which the Act and this Regulation
apply. R.R.O. 1990, Reg. 272, s. 2 (1); O. Reg. 124/00, s. 2 (1).
(2) Group homes are designated as a class of facility to which the Act and this Regulation apply. O.
Reg. 434/01, s. 2.
[13] I would observe that the plain wording of section 2 of the Act vests a broad discretion in the
Minister. The Minister “may” establish, operate and maintain one or more facilities. A further
discretion is obviously contemplated by the words “… and may furnish such services or assistance as
he or she considers necessary…” and again “… upon such terms and conditions as the Minister sees
fit.” Subsection 2(2) gives the Minister a further broad discretion to contract with third parties for the
delivery of services to persons with a developmental disability.
[14] I can see nothing in section 2 of the Act that would require the Minister to continue to
operate the remaining Schedule I facilities. On the contrary, the use of the permissive “may” in both
subsections 2(1) and 2(2) of the Developmental Services Act leaves the determination of how
assistance and services are to be provided to the Minister’s discretion.
[15] Subsection 29(2) of the Interpretation Act, R.S.O. 1990, c. I.11 provides that “in the English
version of an Act, the word ‘shall’ shall be construed as imperative and the word ‘may’ as permissive.”
[16] As stated in Sullivan and Driedger on the Construction of Statutes (4th ed., 1999, pp. 57-58),
the extent or scope of a discretionary power conferred by a statute depends on a contextual
interpretation of the provision and statute conferring the discretion:
When a statutory power is conferred using the word “may”, the implication is that the power is
discretionary and that its recipient can lawfully decide whether or not to exercise it. After all, if the
legislature wished to impose an obligation, it could easily have used “shall” instead of “may”.
…
In other words, the use of “may” implies discretion, but it does not preclude obligation. The
interpreter must determine whether there is anything in the statute or in the circumstances that
expressly or impliedly obliges the exercise of the power.
[17] As a general matter of statutory interpretation, the power to do a certain act includes
powers that are necessarily incidental to the performance of that act and includes the power to cease
performing that act, or to change the place or manner in which it is performed, see section 28,
Interpretation Act, R.S.O. 1990, ch. I 11.
[18] In Crawford et al. v. Ottawa Board of Education, [1971] 2 O.R. 179 at 189, the Ontario Court of
Appeal has held that the powers to “establish” and “maintain” do not include a connotation of
permanence, and necessarily include a power to close:
The Board is not under any obligation to maintain, in the sense of "to perpetuate" any particular
school it establishes. "Maintain" in the Ontario Acts is not a direction to keep forever. It encompasses
only authority and obligation to expend money upon the school and keep it in operation so long as the
Board feels that it is desirable to do so for the provision of the educational needs of the pupils for
whom it is responsible. "Maintain" in my view means the duty from year to year to keep up the
operation of the school so long as the Board is of the opinion that such school should be operated as
an appropriate means of discharging its duty to provide accommodation for its pupils. The direction to
maintain is not inconsistent to discontinue the operation of any particular school or class when it
deems it can otherwise discharge the obligation imposed upon it to provide educational facilities for
its pupils.
To require the perpetuation of a school entity as originally established would be destructive of the
primary aim of the educational system to provide at all times the best possible form of education
according to the ever-changing standards of succeeding generations. If this concept of maintenance
were carried to its ridiculous conclusion, some schools would be required still to be heated by wood
stoves and lighted by lamps and would have the pupils writing upon slates.
[19] The Crawford decision was recently followed by this Court in Gigliotti v. Conseil d’
Administration du Collège des Grands Lacs (2005), 76 O.R. (3d) 561. In Gigliotti it was argued that the
Minister lacked the power to close a community college under Section 5 of the Ministry of Training,
Colleges and Universities Act, which stated:
Subject to the approval of the Lieutenant Governor in Council, the Minister may establish, name,
maintain, conduct and govern colleges of applied arts and technology that offer programs of
instruction in one or more fields of vocational, technological, general and recreational education and
training in day and evening courses and for full-time or part-time students.
[20] The Divisional Court held that the decision was made within the Minister’s discretionary
power and should therefore receive the highest standard of deference, namely patent
unreasonableness. Moreover, it was held that the Minister’s power to establish and maintain colleges
of applied arts and technology included the power to disestablish or close such institutions. The Court
stated at p. 579:
[58] We reject the submission it is necessary for a statute to specifically grant the Minister power to
close a particular institution for the sole reason that other statutes do provide for such a power. Our
Supreme Court has held that the mere fact other statutes explicitly provide for a certain power cannot
be interpreted to mean that a Minister requires the explicit grant of that particular power.
[21] The Applicants would distinguish the Crawford and Gigliotti decisions on the basis that they
deal with the closure of a single institution, whereas in the instant case the Minister’s decision deals
with the closure of all remaining Schedule I facilities. The Applicants say this amounts to the closure of
a “complete delivery system”. I do not accept this argument. The Developmental Services Act
provides the Minister with a broad discretion in the manner of delivery of services to the
developmentally disabled. Based on the established authorities, the discretion to establish, operate
and maintain one or more facilities includes the right to close such facilities subject only to
substantive review for patent unreasonableness. As stated previously, the Applicants have based
their challenge to the Minister’s decision on the alleged absence of any power in the Developmental
Services Act to close all Schedule I institutions, not on a substantive challenge to the reasonableness
of the Minister’s decision.
[22] The Applicants rely on the decision in Re Doctors Hospital and Minister of Health (1976), 12
O.R. (2d) 164 (Div. Ct.) to argue that Cabinet does not have legislative authority to close the three
remaining institutions. The legislative scheme in Doctors Hospital is distinguishable from the
discretionary powers given to the Minister under the Developmental Services Act. In particular, in
Doctors Hospital the Divisional Court found that the Lieutenant-Governor in Council was not
authorized to revoke the hospitals’ approval as a public hospital for fiscal reasons, because such
reasons were beyond the policy objective of the Public Hospitals Act, which was in fact a regulatory
statute. In this case, the Developmental Services Act is far more than a regulatory statute. The Act
sets out different mechanisms through which the Minister can arrange to provide assistance and
services to people with developmental disabilities, including directly at province-run facilities or
indirectly through the purchase of assistance and services from third parties. The Minister’s decision
to use one mechanism rather than another cannot be said to fall outside of the legislative intent or
purpose of the Developmental Services Act.
[23] The decision in Payne v. Ontario (Minister or Energy, Science and Technology), [2002] O.J.
No. 2566, relied on by the Applicants, is also distinguishable from this case. In Payne, the Court
concluded that the Crown was not entitled to transfer the shares of Hydro One. While the Electricity
Act did give Ontario the authority to “acquire and hold shares”, it did not contemplate privatization and
could therefore not be interpreted as allowing the transfer of those shares. In contrast, the
Developmental Services Act specifically provides that assistance and services can be provided in a
number of different ways, including in group homes. Accordingly, I see no basis for the Applicants’
argument that the announced closures, resulting in the transfer of residents to community residential
settings, fall outside of the Minister’s authority.
[24] The Applicants argue that the Developmental Services Act was enacted in the aftermath of
the Williston Report. Therefore, a contextual interpretation of that statute would recognize Mr.
Williston’s belief that institutional care had a continuing, if limited role, in the care of the
developmentally disabled. The point is made that the Act should not be interpreted to allow the
complete discontinuance of institutional care thereby doing away with the “safety net” that these
institutions may provide. With respect, my interpretation of Mr. Williston’s position is that institutional
care should be retained for only so long as it is strictly required, i.e. until community based resources
can be developed to meet the resident’s needs. Mr. Williston stated at p. 68-69 of his report:
16. Lastly, I suggest that a century of failure and inhumanity in the large multi-purpose residential
hospitals for the retarded should, in itself, be enough to warn of the inherent weakness in the system
and inspire us to look for some better solution.
While I recommend that the use of large institutions for the mentally retarded in the province be
phased down I do not say that they should be abolished in their entirety. In the first place, the large
hospital school must not be dismantled, without anything being put in its place. We cannot abolish the
present facilities until the resources of the community have been mobilized to care for the mentally
retarded in a better way. An increase in the load placed upon local health and social services without a
great increase in their resources would inevitably worsen the plight of the handicapped. It would not
be possible to empty a large number of the residents from the institutions and expect the public to
instantaneously absorb them. Many parents who have become accustomed to having their problems
stowed a long way away would now be shocked at the prospect of the return of their child. By now,
many of the residents themselves have come to regard the institutions as their homes. Having been
isolated for many years with little socialization with other members of the community, a mentally
retarded person dramatically introduced to a world of few restraints would encounter almost
insurmountable problems. These institutions have over the years acquired staff with special skills
trained to deal with the mentally retarded. They should not now be entirely disbanded.
If, by severe restrictions on admissions and an intensive drive to rehabilitate those who could be
absorbed into the community, the present institutions, after demolishing the more decrepit buildings,
were cut down to, say, 40% of their present capacity, they might well play an important part in the whole
system for some years to come …
[25] In my opinion, the Minister’s powers under section 2 of the Developmental Services Act
should be interpreted broadly. This is necessary to give her the flexibility to provide services to the
Applicants, and other residents of the remaining institutions, in accordance with developing
knowledge, up to date practices, and the existence of community resources and expertise for the care
of developmentally disabled adults. This approach would reflect the broad and permissive wording of
section 2 of the Act and the recommendations of the Williston Report, to the extent such
recommendations can be said to be reflected in the Act. I also am guided by the words of McLachlin C.
J.C., as to the need for a dynamic interpretation of statutes to meet current realities, see R. v. 974649
Ont. Inc., [2001] 3 S.C.R. 575 at 594-595:
[38] This argument, however, rests on an overly narrow view of legislative intention. The intention of
Parliament or the legislatures is not frozen for all time at the moment of a statute's enactment, such
that a court interpreting the statute is forever confined to the meanings and circumstances that
governed on that day. Such an approach risks frustrating the very purpose of the legislation by
rendering it incapable of responding to the inevitability of changing circumstances. Instead, we
recognize that the law speaks continually once adopted: Tataryn v. Tataryn Estate, [1994] 2 S.C.R. 807,
at p. 814; see also Interpretation Act, R.S.O. 1990, c. I.11, s. 4. Preserving the original intention of
Parliament or the legislatures frequently requires a dynamic approach to interpreting their enactments,
sensitive to evolving social and material realities. While the courts strive ultimately to give effect to
legislative intention, the will of the legislature must be interpreted in light of prevailing, rather than
historical, circumstances: see, for example, Symes v. Canada, [1993] 4 S.C.R. 695, at pp. 727-29 (per
Iacobucci J.), and pp. 793-94 (per L'Heureux-Dubé J., dissenting); Tataryn, supra, at pp. 814-15.
[26] In summary, I conclude that the Minister was acting within the authority given to her by
section 2 of the Developmental Services Act when she exercised her discretion to close the three
remaining Schedule I facilities, by March 31, 2009. In view of this conclusion and the fact that the
Applicants have not challenged the reasonableness of the exercise of the Minister’s discretion, it is
unnecessary to embark on a discussion of the standard of review applicable to the exercise of her
discretion.
Issue (2) If the Minister acted within her jurisdiction in closing the institutions, is the Minister required
to obtain the consent of the resident or his or her next of kin or substitute decision maker to the
community placement selected for the resident? If so, how are disputes to be resolved concerning
community placements?
[27] The Applicants submit that the consent of the current residents of the three institutions, or
where required of their substitute decision makers, is necessary with respect to any relocation from
their current institutional placements. They argue that in some cases, community placements and the
pre-planning involved, is being carried out without regard to the wishes of the residents’ next of kin.
The Respondents do not concede that consent of the residents is required. The Respondents state
that the active involvement of family members is encouraged whenever possible and as a matter of
fact, no community placement has occurred without the consent, expressed or implied, of the next of
kin or the office of the Official Guardian and Trustee.
[28] It is therefore necessary to consider the question of whether consent is required of the
incapacitated residents or their substitute decision maker for changes to their current institutional
placements. If so, does the Ministry’s process accommodate the requirement? Lastly, what procedure
should be followed in the event of a disagreement between a substitute decision maker and the
Ministry as to the appropriate residential placement of any current resident of the three institutions?
[29] I observe that the evidentiary record before the court does not allow me to determine
whether and to what extent the involvement of the next of kin has occurred in the community
placements that have occurred to date. The Applicants, and many other next of kin, have chosen not
to participate further in the community placement planning process, at least until the basic question is
decided as to whether the Minister acted lawfully in directing the closure of the Schedule I facilities.
However, as this is an ongoing process involving the fundamental interests of this large group of
developmentally disabled adults, these issues have an important practical application and are neither
academic nor moot.
[30] I am of the opinion that the consent of the residents of these institutions is required with
reference to their respective residential placements in the community. In nearly all cases, due to the
severe level of intellectual disability of this group, this consent will come from the appropriate
substitute decision maker, as recognized by law.
[31] Consent to a particular residential placement is required due to the fundamental
importance of this issue to the developmentally disabled person. The typical demographic of this
group has previously been described in paragraph 6 of these reasons. Due to their vulnerability,
inappropriate residential placements have the likelihood of being harmful and may be life threatening
to many of these profoundly affected adults. The provision of consent by a substitute decision maker
may be seen in some cases as a circumstantial guarantee of suitable placement. Perhaps more
importantly, the refusal of consent by a substitute decision maker will serve to require further
consideration or an adjudication of the issue, so as to operate as a safeguard against erroneous
decisions. In any event, the requirement for consent accords respect to the disabled person.
[32] Adults of normal capacity make their own decisions about where they choose to live. It
cannot be right that an intellectually incapable adult has no such right, simply because of his or her
incapacity. It is significant that the health and safety of disabled persons can be dependent upon
obtaining a suitable residential placement where their needs can be properly met. The Supreme Court
of Canada has recently held that while the Charter does not confer a free-standing constitutional right
to health care, any statutory scheme in place must comply with the Charter and an aspect of any such
scheme that impinges on the life, liberty and security of the person in an arbitrary fashion that fails to
conform to the principles of fundamental justice, violates the Charter, see Chaoulli v. Quebec (Attorney
General), [2005] 1 S.C.R. 791 at para. 104. It may be that an administrative program that places
vulnerable individuals in community settings without their consent, and if their well-being is thereby
endangered, may violate their Charter protected interests. While the requirement for consent to the
placement of a developmentally disabled adult is at first instance a common law issue, the common law
must be interpreted in a manner consistent with Charter values, see Hill v. Church of Scientology of
Toronto [1995] 2 S.C.R. 1130 and RWDSU, Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002]
1 S.C.R. 156.
[33] In summary, I am of the opinion that the consent of a developmentally disabled adult or his
or her substitute decision maker is required to any choice of community residential placement. This is
because of the direct and substantial affect this choice will have on the individual’s health, safety and
personal welfare and is in accordance with the principles of fundamental justice. It is well within the
recognized jurisdiction of the Superior Court of Justice in the exercise of its parens patriae
jurisdiction to declare this right and to see that it is respected.
[34] The foregoing discussion is not to imply that the Respondents’ approach to placing the
current institutional residents into community settings has been inappropriate. Indeed, the affidavit
materials filed by Mr. Lafranier and Mr. Ock describing the entire undertaking, known as “The Facilities
Initiative”, reflect a well considered process. It focuses on assessing the often complex needs of the
individual, finding an appropriate placement among the labyrinth of some 370 community based care
providers and it provides a mechanism for addressing post-placement follow up issues. Apart from the
Respondents’ alleged failure to recognize the residents’ rights with respect to the issue of consent,
neither the Applicants nor the Official Guardian and Trustee were critical of the Ministry’s process for
identifying and implementing appropriate community placement for these residents.
[35] There are of course some important nuances to the substitute decision maker’s role in this
process. The issues can be complex from both a medical and legal perspective. As a result, the family
member or next of kin’s role may be primarily consultative, apart from the ultimate decision of whether
or not to consent to the recommended placement. In some cases, relatives have had little or no
ongoing contact with the resident for many years. The Williston Report points out that for some years it
was institutional policy to discourage family contacts with the resident.
[36] Where the family member is not well-known, identifying and understanding the medical and
social needs of an individual with complex medical and psychiatric issues, might be beyond the
capabilities of many relatives who are invited to participate in the process. The incapacitated person
must be encouraged to participate as much as possible; however, many are non-verbal and their input
will be limited. Even more complex is the task of understanding, locating and assessing the community
based residence placements and support organizations who will assume the resident’s care. The
Respondents involve experts, as required, and family consultation wherever possible, as part of that
process. The Ministry’s approach to obtaining consent from the resident or his or her next of kin is
reflected in the “Guiding Principles” of the Ministry’s Planning Framework, which I quote:
Individual Planning
§ There will be a comprehensive plan tailored to each individual.
Flexiblity and Choice
§ Individuals will have the opportunity and support to make informed decisions about their lives.
§ An individual’s decision in relation to location and type of living arrangements, maintenance of
friendship and family ties and other supports and services should be given primary consideration.
§ Planning for supports and services for individuals will be flexible and respectful of cultural,
language, religious beliefs and lifestyle choices.
§ Wherever possible, individuals will have the opportunity to live close to their families or friends.
§ Wishes of the individual and those of their families will be balanced with the available resources
and community capacity to respond to their needs.
Fairness
§ In those situations where an individual does not have family or friends independent of the
service system to effectively assist, a neutral third party will be identified to participate in the process.
§ Planning for all individuals will involve existing community processes, including access
mechanisms, service planning, and service resolution.
Inclusion
§ An individual should have the opportunity to live, work and participate with other members of the
community.
§ Supports for individuals should include existing community services as required.
Health and Independence
§ Supports and services will promote the physical and emotional well being of individuals in
settings that foster healthy and independent living. Individuals will not leave facilities until
arrangements and supports are in place.
§ Specialized supports and services as required will be provided or developed.
[37] The Respondents placed in the record a document entitled, “The Facilities Initiative
Planning Framework”. It outlines how the Ministry will plan for a person leaving a facility to a setting
that can support the individual’s needs. This process provides that where an individual does not have
family or friends independent of the service system to effectively assist, a neutral third party will be
identified to participate in the process. The neutral third party is identified and appointed by the
Ministry’s regional office. He or she is expected to participate in all aspects of the planning – from the
development of the resident’s Personal Plan through to the review and follow up of the individual
Transition Support Plan.
[38] Of the residents in the three closing facilities, approximately 80 individuals have been
identified as having no family to assist them with planning or to give their perspective on planning.
The absence of family involvement in the life of a resident can result from the family’s wish not to be
involved or could arise where family members cannot be located. The Ministry uses the term “citizens
of the world” to reference this group. These individuals are assisted and represented by the office of
the Public Guardian and Trustee for health treatment and financial purposes under the respective
Health Care Consent Act, 1996, S.O. 1996, c.2 and Substitute Decisions Act, 1992, S.O. 1992, c.30. These
individuals are assisted in other decisions by a neutral third party identified at the onset of planning,
as discussed previously.
[39] The placement process involves the preparation of a Personal Plan for the individual,
prepared by the regional placement facilitator and staff. A non-identifying profile of the resident is
presented to the appropriate community based planning agencies. The regional project manager,
community planning table and regional placement facilitator identify the most appropriate agency. The
community planning table and the Ministry, who contracts to fund the agency, make the decision about
the choice of the new residence of the individual. However, the perspectives and input of family or
significant persons to the resident are taken into account.
[40] The commendable aim of this group decision-making process is to reach a consensus on
the often complex issue of what community placement best meets the resident’s needs. However, it
must be remembered that the consensus must include the resident or his or her next of kin or
substitute decision maker. The consent of the next of kin or substitute decision maker must be
obtained. Disagreements may be resolved through the existing legal avenues, as discussed below.
[41] I turn now to the current legal framework governing the provision of consent, as it relates
to the proposed community residential placements of the current residents of the closing institutions.
The evidence establishes that many, if not all, of the residents of the three institutions lack capacity to
make an informed decision about a transfer to a group home. In my opinion, the issues likely to arise in
implementing the community placements may, in whole or in part, be covered by the provisions of the
Health Care Consent Act, 1996 or the Substitute Decisions Act, 1992. To the extent they are not, this
Court will exercise its inherent parens patriae jurisdiction for the protection of the welfare of these
mentally incapable adults.
[42] Because the remedial provisions of the Substitute Decisions Act, 1992 and the Health Care
Consent Act, 1996 and the common law parens patriae jurisdiction are available in the circumstances
herein, it is unnecessary to embark on a discussion of the Charter issues that would otherwise arise.
[43] The Health Care Consent Act, 1996 sets out a process by which a temporary substitute
decision maker can give or refuse consent on behalf of an incapable person for decisions relating to
the admission to a care facility, relating to treatment or relating to the provision of personal assistance
services. A “care facility” is defined in section 2(1) of the Act. It includes specified nursing homes but
does not include group homes or other community settings for developmentally challenged adults.
Accordingly, this Act will govern the limited number of residents who may be considered for admission
to certain nursing homes. In those cases, the Act will apply to require a substitute decision maker to
give or refuse consent to admission to the facility. For incapable residents whose location will be to a
group home, the provisions of this Act have no application.
[44] The Substitute Decisions Act, 1992 does not directly address the issue of consent in
relation to the admission of an incapable person to a group home or other community setting. In some
cases it will apply, depending on the incapable person’s abilities and the terms of any order of the
Court. This Act came into force in April 1995, replacing the former Mental Incompetency Act and some
provisions of the Powers of Attorney Act. This Act sets out the law and procedure by which guardians
of property and the guardians for personal care are appointed by the Superior Court of Justice.
[45] The test for incapacity for personal care is set out in section 45 of the Act:
A person is incapable of personal care if the person is not able to understand information that is
relevant to making a decision concerning his or her own health care, nutrition, shelter, clothing,
hygiene or safety, or is not able to appreciate the reasonably foreseeable consequences of a decision
or lack of decision.
[46] For the purpose of appointment of a guardian for personal care, assessments of mental
capacity are conducted by capacity assessors who are members of one of the regulated health
professions. Sections 55, 58, 59 and 60 of the Substitute Decisions Act govern the appointment of
guardians. These sections are set out below:
Court appointment of guardian of the person
55. (1) The court may, on any person’s application, appoint a guardian of the person for a person
who is incapable of personal care and, as a result, needs decisions to be made on his or her behalf by
a person who is authorized to do so. 1992, c. 30, s. 55 (1).
Prohibition
(2) The court shall not appoint a guardian if it is satisfied that the need for decisions to be made
will be met by an alternative course of action that,
(a) does not require the court to find the person to be incapable of personal care; and
(b) is less restrictive of the person’s decision-making rights than the appointment of a
guardian. 1992, c. 30, s. 55 (2).
Finding of incapacity
58. (1) An order appointing a guardian of the person shall include a finding that the person is
incapable in respect of the functions referred to in section 45, or in respect of some of them, and, as a
result, needs decisions to be made on his or her behalf by a person who is authorized to do so. 1992,
c. 30, s. 58 (1).
Contents of order
(2) An order appointing a guardian may,
(a) make the appointment for a limited period as the court considers appropriate;
(b) impose such other conditions on the appointment as the court considers appropriate. 1992,
c. 30, s. 58 (2).
Full or partial guardianship
(3) The order shall specify whether the guardianship is full or partial. 1992, c. 30, s. 58 (3).
Full guardianship
59. (1) The court may make an order for full guardianship of the person only if the court finds that
the person is incapable in respect of all the functions referred to in section 45. 1992, c. 30, s. 59 (1).
Powers of guardian
(2) Under an order for full guardianship, the guardian may,
(a) exercise custodial power over the person under guardianship, determine his or her living
arrangements and provide for his or her shelter and safety;
(b) be the person’s litigation guardian, except in respect of litigation that relates to the person’s
property or to the guardian’s status or powers;
(c) settle claims and commence and settle proceedings on the person’s behalf, except claims and
proceedings that relate to the person’s property or to the guardian’s status or powers;
(d) have access to personal information, including health information and records, to which the
person could have access if capable, and consent to the release of that information to another person,
except for the purposes of litigation that relates to the person’s property or to the guardian’s status or
powers;
(e) on behalf of the person, make any decision to which the Health Care Consent Act, 1996
applies;
(e.1) make decisions about the person’s health care, nutrition and hygiene;
(f) make decisions about the person’s employment, education, training, clothing and recreation
and about any social services provided to the person; and
(g) exercise the other powers and perform the other duties that are specified in the order. 1992,
c. 30, s. 59 (2); 1996, c. 2, s. 37 (1).
Partial guardianship
60. (1) The court may make an order for partial guardianship of the person for an incapable person
if it finds that he or she is incapable in respect of some but not all of the functions referred to in
section 45. 1992, c. 30, s. 60 (1).
Same
(2) The order shall specify in respect of which functions the person is found to be incapable. 1992,
c. 30, s. 60 (2).
Powers of guardian
(3) Under an order for partial guardianship, the guardian may exercise those of the powers set out
in subsections 59 (2), (3), (4) and (5) that are specified in the order. 1996, c. 2, s. 38.
[47] Sect