The Appellant, Child and Family All Nations Coordinated Response Network, unsuccessfully appealed a decision holding that its failure to abide by timelines set out in the Child Abuse Regulation, Man. Reg. 14/99 rendered its decision a nullity

Administrative law – Child abuse registers – Judicial review – Delay – Compliance with legislation – Limitations

B.W. v. Child and Family All Nations Coordinated Response Network, [2009] M.J. No. 332, 2009 MBCA 95, Manitoba Court of Appeal, September 25, 2009, R.J. Scott C.J.M., B.M. Hamilton, and M.H. Freedman JJ.A.

The Winnipeg Children’s Hospital referred suspicions regarding child abuse allegedly committed by the Respondent to the Child and Family All Nations Coordinated Response Network (the “Agency”). Pursuant to ss. 9 and 14 of the Child Abuse Regulation, Man. Reg. 14/99, the Agency’s Child Abuse Committee is required to meet within 30 days after a matter of suspected abuse is referred to it, and the Agency is required to give notice to those affected within 30 days of receipt of a report from the Child Abuse Committee. Neither the Committee nor the Agency abided by these timelines. Given this failure, the Respondent argued that the proceedings ought to be declared a nullity. The Court of Queen’s Bench agreed with the respondent.

On appeal, the Court elaborated on the distinction between statutory provisions that are mandatory and those that are merely directory. A breach of a mandatory provision automatically results in a finding of nullity, while a breach of a directory provision may be cured. In order to differentiate between these two types of provisions, a court must give consideration to both the object and the purpose of the legislation and the effect of ruling the provision mandatory or directory.

The Court reasoned that both ss. 9 and 14 use the word “shall” and set out obligations on the Committee and the Agency when a matter of suspected child abuse is referred to them. Moreover, some regard should be given to the fact that the legislature saw fit to impose time limits for these obligations. Despite this, however, it is clear that the legislature intended these time limits to be directory rather than mandatory. It could not be that non-compliance by one day or one week as a result of human error should nullify a proceeding whose purpose is to protect children. Accordingly, the Court held that ss. 9 and 14 are directory in nature.

Having concluded that the provisions are directory, the Court went on to consider the effect of their breach. The effect of non-compliance with a directory provision depends on the circumstances of the case, including whether the entity substantially complied with the provisions and any resulting prejudice. In this case, the Committee’s non-compliance with s. 9 was 126 days, and the Agency’s non-compliance with s. 14 was 63 days. These were not situations of non-compliance of a few days or even a few weeks. Moreover, both the Committee and the Agency demonstrated a cavalier attitude towards their statutory obligations generally. Accordingly, the Court held that nullification was an appropriate consequence for non-compliance.

To stay current with the new case law and emerging legal issues in this area, subscribe here.