Sometimes our courts will step in to address a gap in legislation using various time honoured principles such as “inherent jurisdiction” or parens patriae jurisdiction. This blog addresses the latter by reason of it being dealt with in a recent decision in the context of a request for a court ordered mental capacity examination.

Black’s Law Dictionary defines parens patriae jurisdiction as “the state in its capacity as provider of protection to those unable to care for themselves.” It is exercised by the courts, not the legislative or executive branches of the state. However, it is capable of being exercised only when the governing legislation does not “occupy the field”. In other words, when the legislation does not provide for the circumstances in question, the court can exercise its parens patriae jurisdiction, if necessary, for the protection of an individual.

Temoin v. Martin, 2012 BCCA 250 [Martin], is a recent example of the court recognizing a legislative gap and considering its parens patriae jurisdiction. The legislation in question in Martin, the Patients Property Act (the “Act”), governs the appointment and regulation of guardians for people incapable of managing their affairs. The guardians are called committees (pronounced “cawmitees”)and those incapable of managing their affairs are called patients. Anyone can apply to the British Columbia Supreme Court for a declaration that a person is incapable of managing his or her affairs. According to section 3 of the Act, however, the application must be supported by two affidavits from doctors attesting to the person’s incapability.

In Martin, it was impossible for the applicant to produce the two medical affidavits required under the Act because her father, an 87 year old man, would not consent to being examined by doctors. It is not hard to imagine a situation where a person will not consent to being examined because of a mental impairment, an impairment that might also make that person incapable of managing his or her affairs. The Act does not provide for this situation. Therefore, in Martin, the court considered its parens patriae jurisdiction. It could have been used to compel the father to be examined. Ultimately, the court decided not exercise its jurisdiction because “the evidence was insufficient to establish a compelling need to protect Mr. Martin” When the situation calls for it, however, the court will exercise its parens patriae jurisdiction to protect a vulnerable person.