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Below are exerts from the judgement that are key to us as decision makers for our relatives.
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under the Developmental Services Act to close the remaining Schedule I facilities, the option of
continuing to reside there in the long-term will not be open to the remaining residents.
Substitute decision makers must act, as indeed the court will act, “… to do what is necessary
for the benefit and protection of persons under disability”, per La Forest J. in E. (Mrs.) v. Eve,
supra, at 430. This will necessarily involve participating in good faith in the Ministry’s current
program to identify suitable group homes and other community placements for the residents.
The Minister will be expected to honour the government’s public commitment, repeated in
argument before this Court, not to move any of the current residents of the three institutions
until suitable community placements are available. In those, hopefully, few cases where the
Ministry and the substitute decision makers cannot agree on the best interests of the incapable
individual, in regard to his or her community placement or in regard to related issues, the
direction of the Superior Court of Justice may be sought under its statutory or its parens
patriae jurisdiction. Counsel for the Ministry stated in argument that the Ministry would initiate
such an application where the court’s direction was required. I regard this as appropriate.
[52] As none of the Applicants represented residents of the Southwestern Regional
Centre, the order of this Court will not technically include residents of that institution.
However, the matters decided herein are of obvious application to the residents of SRC.
Disposition
[53] A declaration will issue in the following terms:
(a) No incapable resident of the Rideau Regional Centre or the Huronia Regional Centre
shall be transferred to any other residence without the consent of a substitute decision maker
on behalf of that resident, who shall be a family member or in the absence of a family member,
the Public Guardian and Trustee.
(b) Decisions to give or refuse consent to the transfer of an incapable resident from Rideau
Regional Centre or Huronia Regional Centre shall be made in the incapable person’s best
interests.
(c) Any disagreement between the substitute decision maker and the Ministry of Community
and Social Services may be resolved by application to the Superior Court of Justice.
(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.
