Re James: Jurisdiction of a Master Under the Patients Property Act

The Supreme Court of British Columbia has both judges and masters. Some types of court applications can be heard by either a judge or a master, and others only by a master. Sometimes it is clear when a matter can be heard by a master, but at other times it is not always straightforward.

Supreme Court of British Columbia judges are appointed by the federal government, and masters by the provincial government. Only judges hear full trials, and masters generally hear either procedural applications before trial, or applications for interim orders, such as orders for custody or support in family law proceedings. But sometimes, masters may make final orders as well.

In a recent decision, Re James, 2013 BCSC 3, Madam Justice Hyslop considered the jurisdiction of a master to decide applications to have someone declared incapable of managing her affairs or her person, and to appoint a committee to act as guardian for that person. She also considered the standard of review if a master’s decision is appealed.

In Re James there were competing applications by one of Doreen James’ children, Cindy Beka, and by Ms. James husband, Douglas James. The applications were initially heard by a court master who appointed Ms. Beka as committee.

Mr. James appealed. He argued that the master did not have jurisdiction to make the order. He argued alternatively that a judge hearing an appeal could consider the matter afresh, and that he did not have to persuade the judge that the master was “clearly wrong.” He further sought to have fresh evidence admitted.

Madam Justice Hyslop held that the master did have jurisdiction to decide who to appoint as committee, provided that there was no dispute about whether the person over whom a committeeship was sought was incapable of managing herself or her affairs. If there had been an issue about whether Ms. James was incapable, then only a judge could hear it. She cited a practice direction from the Chief Justice as follows:

2. Pursuant to section 11 (7) of the Supreme Court Act, the Chief Justice directs that a master is not to exercise jurisdiction:
...
e.         in any matter relating to criminal proceedings or the liberty of the subject other than uncontested petitions under the Patients Property Act.

In this case, the declaration that Ms. James was incapable of managing herself or her affairs was not contested.

The next issue, Madam Justice Hyslop was asked to consider was the standard of review. Mr. James argued that a Judge could reconsider who should be appointed as committee, while Ms. Beka argued that that Mr. James had to persuade the court that the Master was clearly wrong. This distinction is important, because it is likely to be easier to persuade a judge to exercise her discretion differently than a master, than to persuade a judge that the master was clearly wrong, a test which requires deference to the master’s decision.

The issue of what test applied turned on the nature of the order, whether it was in the nature of a temporary order or an order that either finally disposed of the proceeding, or would likely have a significant impact on the final outcome. The “clearly wrong” standard is applicable to temporary orders, while a rehearing is appropriate for final orders.

After considering the case precedents, Madam Justice Hyslop concluded that the appointment of a committee was a final order. She wrote:

[55]         The appointment of a committee is a final order and is dispositive as to who should be committee. The committee is required to care for the patient and his or her assets both in the present and in the future. Once an order is made, a committee takes on all the responsibilities that the patient performed for herself or himself. 

 [56]         I have concluded that the application should be re-heard. The appointment of a committee vests in the committee the right to make all decisions for Mrs. James. The fact that the appointment may be rescinded, relates only to the committee’s ability to discharge her duties in the future.

The next issue Madam Justice Hyslop considered was whether to allow fresh evidence, which is evidence that was not before the master who heard the original application. She summarized the tests on whether to admit fresh evidence:

[57]         In order to adduce fresh evidence, it must be demonstrated that the evidence was not available at the time of the hearing despite due diligence. It must also be evidence that may affect the ruling had it been put before the court at the first instance. Ultimately, it is whether the interests of justice are best served with the introduction of the fresh evidence.

Madam Justice Hyslop admitted evidence that since Ms. Beka was appointed committee, she removed her mother from the community her mother had been living in, restricted Mr. James’ access to his wife, and started a family law proceeding to dissolve the marriage between Mr. and Mrs. James. The Court also considered evidence of friend of Mr. James that Mrs. James reacted favourable to Mr. James during a visit. Because these matters arose since the Master appointed Ms. Beka committee, none of it was available in the original application.

After considering the evidence, Madam Justice Hyslop found that there was no basis for Ms. Beka’s claim that Mrs. James had separated from Mr. James, or that a family law proceeding was necessary to protect Mrs. James. She found that Mr. James had cared for his wife through her health problems. Furthermore, Ms. Beka had been estranged from her mother.

Madam Justice Hyslop concluded that it is in the best interest of Mrs. James that Mr. James be appointed as committee instead of Ms. Beka.