Supreme Court ducks child protection, again | Rollie Thompson
Wednesday, April 01, 2020 @ 1:06 PM | By Rollie Thompson
I know, the Supreme Court doesn’t give reasons for its leave decisions. But why “no” to leave here? Dakota Ojibway seemed to check the boxes.
A child protection case involving permanent guardianship, the most serious civil remedy we know. Public importance, check. A difference of opinion between two appeal courts, as the Manitoba Court of Appeal explicitly rejected the Ontario decision in Kawartha-Haliburton Children’s Aid Society v. M.W. 2019 ONCA 316. Differing appeal courts, national significance, check. A Charter case, check. An interpretation, or misinterpretation, of the Supreme Court’s own leading decision on summary judgment, Hryniak v. Mauldin 2014 SCC 7, check.
A week earlier, a three-judge panel had refused leave in a companion Manitoba case: L.A.N. v. Child and Family Services of Western Manitoba  S.C.C.A. No. 449 (Justices Rosalie Silberman Abella, Andromache Karakatsanis and Russell Brown), refusing leave from Child and Family Services of Western Manitoba v. L.A.N. 2019 MBCA 92.
We know that we are not to interpret leave decisions as “approving” the decision or reasoning of the court below. That’s more compelling when a case is confined to its particular facts. But that’s not what the Manitoba Court of Appeal did in its wide-ranging decision, a policy decision not at all confined to its facts.
In Dakota Ojibway at the Court of Appeal, the summary judgment procedure was held not to infringe s. 7 of the Charter in two ways. First, Justice William Burnett compared the summary judgment process to the hearing process under the Child and Family Services Act and saw “no substantive difference.” The court repeatedly emphasized the discretionary tools available for a summary judgment judge to respond to the mother’s arguments.
Second, Justice Burnett stripped down the s. 7 content of “fair procedure” for protection cases. Tellingly, the Manitoba court emphatically rejected the Ontario approach in Kawartha-Haliburton. No to Ontario’s “cautious approach” to granting summary judgment in child protection cases.
No special concern for the “Charter rights for a vulnerable segment of our society,” as described by Justice Mary Lou Benotto in the Ontario Court of Appeal. No need in Manitoba for “trial-worthy evidence” on summary judgment in protection cases. No need for child protection as “a special category of case” within summary judgment law, unlike the Ontario view.
Again, I know, nothing is to be taken about “correctness” from the denial of leave. But what does this denial mean for courts facing these issues in other provinces? Two entirely different approaches, Ontario versus Manitoba, two policy decisions. Supreme Court permits the Manitoba approach. What you permit, you promote, goes the old saying.
It has been 20 years or more since the Supreme Court addressed Charter issues in child protection: New Brunswick (Minister of Health & Community Services) v. J.G.  3 S.C.R. 46 (the right to state-funded counsel for parents) and Winnipeg Child & Family Services (Central Area) v. K.L.W.  2 S.C.R. 519 (apprehension without warrant in non-emergency cases).
Since 2000, the Supreme Court has not granted leave in a single conventional child protection case, despite more than 30 applications for leave, 10 of them in the past five years. Dakota Ojibway involved an Indigenous mother and child, a birth date apprehension, permanent guardianship, at a summary judgment hearing eight months later.
There has been a notable spread of summary judgment in child protection cases, not just in its original home in Ontario, but now in Manitoba and occasionally in New Brunswick, Newfoundland and Labrador, Nova Scotia and Saskatchewan. The Supreme Court’s decision in Hryniak v. Mauldin is now called in aid for all manner of procedural changes. Hryniak was a claim by U.S. investors against some dubious Canadian traders, a world away from the gritty realities of poor families.
For the individual plaintiffs in Hryniak, the court was able to frame its decision in bold policy terms like “access to justice” and “culture shift.” Such terms have little meaning when the state seeks more informal procedures to remove a child permanently from parental care. Granting leave in Dakota Ojibway would have forced the Supreme Court to think about its own decision in Hryniak, and how it is being used, or misused.
Rollie Thompson is a professor at the Schulich School of Law, Dalhousie University. He has practised, taught and written about child protection for a long time.
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