Z.G. Appellant - v. -, 2010 ABQB 723

Court of Queen ’ s Bench of Alberta Citation: Z.G. v. Alberta ( Child, Youth and Family Enhancement Act , Director), 2010 ABQB 723 Date: 20101122 Docket: FL01 09579 Registry: Calgary In the matter of M.G. a child within the meaning of the Child, Youth and Family Enhancement Act , R.S.A. 2000, c. C-12, as amended Between: Z.G.

Appellant - and - Alberta ( Child, Youth and Family Enhancement Act , Director) Respondent Restriction on Publication: No one may publish any information serving to identify a child or guardian of a child who has come to a Minister’s or a director’s attention under the Child, Youth and Family Enhancement Act . See the Child, Youth and Family Enhancement Act , s. 126.2. _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice S.L. Martin _______________________________________________________

Appeal from the Judgment by The Honourable Judge A.H. Lefever Dated the 22 nd day of January, 2010 ( 2010 ABPC 7 , Docket: 080783269W101001, N30956) 1. Introduction [ 1 ] This is an appeal from a decision granting a Permanent Guardian Order (P.G.O.) in relation to a seven year old child who was apprehended about three years ago and has not seen the mother since April, 2009. The birth father has played no role in the child’s life and the child resided with the mother at the time of the apprehension. The evidence is clear and uncontradicted that the mother has suffered multiple forms of abuse throughout her life.

For example, she survived the Chernobyl disaster. Her relationship with her parents involved “emotional terrorism” and she went into foster care. When pregnant her then husband beat her so badly she required hospitalization and medical care for over four months. As a result of those injuries she suffers seizures, memory loss and blindness. She has suffered from clinical depression since 2004. Her parents physically assaulted her in front of the child. Her father hit her in the mouth with a shovel and her mother then sat on her.

The police have been called to her home for violence related matters involving a man in her life who is described as a support person. While she has no contact with her ex-husband her primary relationships remain with her parents and this support person. [ 2 ] The mother has thus experienced numerous traumas in her life which have, understandably, affected her view of the world and her behaviour. Unfortunately they have also had a negative impact on her ability to parent in a manner consistent with the best interests and needs of the child.

At the trial the mother, through counsel, admitted that the child was in need of protection and should not be in her care at that time. The trial judge decided that the child could not be returned within a reasonable time and granted a P.G.O. On appeal the mother argues that the trial judge gave insufficient consideration to her history of abuse and undervalued family re-unification in granting the P.G.O. 2.

Procedural History of the Director’s Involvement [ 3 ] The facts are not really in dispute and they have been comprehensively outlined in the judgment of the trial judge. [ 4 ] After five screenings, four investigations and various proposed plans of action, the Director of Child and Family Services (“the Director”) apprehended the child on December 5, 2007. The Director did so believing that the mother said that the child was psychotic and that she was going to kill him.

The mother provides a different version of events, saying that she expressed concerns to her physician about the child’s reaction to an increased dosage of a relatively new medication prescribed by the physician for the child’s hyperactivity. The reports of many social workers, assessors and psychologists take her threat as proven.

However, given the admissions, the trial judge was not required to, and did not make any finding of fact as to what actually occurred. [ 5 ] Two interim custody agreements were entered into between the mother and the Director, around December 14, 2007 and December 21, 2007. [ 6 ] On January 8, 2008 after a contested initial custody hearing, the court ordered the child into the custody of the Director after the Director demonstrated that there was a need for apprehension and a continuing need for intervention.

This order was not appealed. [ 7 ] The Director filed a T.G.O. application, and then amended to a P.G.O. application in June 2008. The hearing of the matter was set to commence in September 2008 but was adjourned to allow the mother to attempt reunification with the child by way of accessing the Aspen Therapeutic In-Home Support Program. [ 8 ] In November 2008 the court, on application by the Director, ordered no access between the mother and the child and this

order was not appealed. [ 9 ] The hearing of the matter commenced April 6, 2009 and was then again adjourned by court order to allow the mother a further attempt at reunification by accessing the attachment-based intervention therapy of Dr. Sonya Vellett. The hearing re-commenced in June 2009 and continued until the end of October 2009. The trial judge rendered judgment on January 22, 2010. [ 10 ] The child has been in the care of the Director at the same foster placement since December 5, 2007. 3.

The Statutory Framework [ 11 ] The test for the granting of a P.G.O. is found in section 34(1) of the Child, Youth and Family Enhancement Act , R.S.A. 2000, c. C-14 (hereinafter the “ Act ”). It reads: 34(1) The Court, on application pursuant to this Division by a director, may make a permanent guardianship order appointing the director as guardian of the child if it is satisfied that (

a) the child is in need of intervention or is the subject of a temporary guardianship order, (

b) the survival, security or development of the child cannot adequately be protected if the child remains with or is returned to the child’s guardian, and (

c) it cannot be anticipated that the child could or should be returned to the custody of the child’s guardian within a reasonable time. [ 12 ]

Section 2 also states mandatory considerations when assessing the best interests of a child. It is quoted in full as it bears directly on the grounds of appeal. It reads: 2 If a child is in need of intervention, a Court, an Appeal Panel and all persons who exercise any authority or make any decision under this Act relating to the child must do so in the best interests of the child and must consider the following as well as any other relevant matter: (

a) the family is the basic unit of society and its well-being should be supported and preserved; (

b) the importance of stable, permanent and nurturing relationships for the child; (

c) the intervention services needed by the child should be provided in a manner that ensures the least disruption to the child; (

d) a child who is capable of forming an opinion is entitled to an opportunity to express that opinion on matters affecting the child, and the child’s opinion should be considered by those making decisions that affect the child; (

e) the family is responsible for the care, supervision and maintenance of its children and every child should have an opportunity to be a wanted and valued member of a family, and to that end

(

i) if intervention services are necessary to assist the child’s family in providing for the care of a child, those services should be provided to the family, insofar as it is reasonably practicable, in a manner that supports the family unit and prevents the need to remove the child from the family, and (ii) a child should be removed from the child’s family only; when other less disruptive measures are not sufficient to protect the survival, security or development of the child; (

f) subject to clauses (

e) and (g), if a child has been exposed to domestic violence within the child’s family, intervention services should be provided to the family in a manner that supports the abused family members and prevents the need to remove the child from the custody of an abused family member; (

g) any decision concerning the removal of a child from the child’s family should take into account the risk to the child if the child remains with the family, is removed from the family or is returned to the family; (

h) if it is not inconsistent with protecting the survival, security or development of a child who is in need of intervention, and appropriate community services are available, the child or the child’s family should be referred to the community for services to support and preserve the family and to prevent the need for any other intervention under this Act ; (

i) any decision concerning the placement of a child outside the child’s family should take into account (

i) the benefits to the child of a placement within the child’s extended family; (ii) the benefits to the child of a placement within or as close as possible to the child’s home community (iii) the benefits to the child of a placement that respects the child’s familial, cultural, social and religious heritage; (iv) the benefits to the child of stability and continuity of care and relationships; (

v) the mental, emotional and physical needs of the child and the child’s mental, emotional and physical stage of development, and (vi) whether the proposed placement is suitable for the child; (

j) the provision of intervention services is intended to remedy or alleviate the condition that caused the child to be need of intervention; (

k) intervention services are most effective when they are provided through a collaborative and multi-disciplinary approach; (

l) if a child is being provided with care under this Act , the child should be provided with a level of care that is adequate to meet the needs of the child and consistent with community standards and available resources; (

m) if a child is being provided with care under this Act , a plan for the care of that child should be developed that (

i) addresses the child’s need for stability, permanence and continuity of care and relationships, and

(ii) in the case of a youth, addresses the youth’s need for preparation for the transition to independence and adulthood; (

n) a person who assumes responsibility for the care of a child under this Act should endeavour to make the child aware of the child’s familial, cultural, social and religious heritage; (

o) there should be no unreasonable delay in making or implementing a decision affecting a child; (

p) if the child is an aboriginal child, the uniqueness of aboriginal culture, heritage, spirituality and traditions should be respected and consideration should be given to the importance of preserving the child’s cultural identity. 4.

The Trial: Process, Evidence, Admissions, and Reasons for Decision [ 13 ] The trial judge heard evidence on the following days in 2009: April 6, 7, 8; June 15, 16, 17, 18, 19; July 13, 14, 20; September 14, 16, 17, 18; and October 1, 19, 20, 21, 26, 27, 29; with a decision dated January 22, 2010. [ 14 ] The Director called seven witnesses, the mother testified and she called eight witnesses. Certain witnesses testified more than once to update the Court on events as they evolved over the time of the hearing.

The transcript runs over 2400 pages. [ 15 ] The child was in care pursuant to a custody order, not a Temporary Guardianship Order (T.G.O.). At trial the Director argued that the child was in need of intervention because the mother was unable to protect the child from emotional injury. Before apprehension the child had been diagnosed by Dr. Carla Atkinson as suffering from post traumatic stress disorder and attachment disorder.

The Director put forward further evidence of the child’s damaged emotional state and claimed the child’s injuries included exposure to domestic violence and domestic disharmony; inappropriate criticisms, threats, humiliations or expectations of or towards the child; and the mother’s own emotional disturbances and dysregulations.

While the mother was not found to suffer from any mental or personality disorder, the Director focussed on how the mother’s compromised emotional condition negatively impacted on the child; arguing that the development of the child could not be adequately protected if the child returned to the mother. [ 16 ] At the trial the mother, through counsel, admitted the first two of the three elements the Director must prove under s. 34(1) before a P.G.O. may issue.

Specifically, that the child was in need of protection and that the child’s security and development cannot be adequately protected if returned to his mother at the time of trial. [ 17 ] The only issue dividing the parties was the last and remaining requirement under s. 34(1), being whether under subsection (

c) the child could be returned to the mother within a reasonable time. The trial judge held that the child could not be returned to the mother’s custody within a reasonable time. Given this finding, he did not need to determine whether the Court retained jurisdiction to grant a T.G.O. [ 18 ] The judgement was 43 pages, provided a thorough time-line of events, canvassed the evidence heard, contained credibility findings and provided an explanation as to how weight was assigned to or withheld from the reports and opinions of the many experts heard. 5. The Appeal A.

Fresh Evidence [ 19 ] This Court heard evidence by consent of all parties. The mother called Dr. Karen Massey, the mother’s treating psychologist,

who is an expert in counselling psychology, specializing in trauma, depression and anxiety. The Director called Dr. Peter Choate, a social worker qualified as an expert in clinical social work, with a speciality in parenting and domestic violence assessment; Ms. Sharon Lee, an expert in clinical social work with a sub-speciality in child abuse; and Ms. Nancy Piche, a child welfare case worker employed by the Province of Alberta. A written report by Dr. Pearce was submitted by agreement and without attendance. B. Standard of Review [ 20 ] The issues are of mixed fact and law: Housen v.

Nikolaisen 2002 SCC 33 (CanLII) , [2002] 2 S.C.R. 235. As said in C.B. v. Alberta (Director, Child Welfare) , [2007] A.J. No. 429, 2007 ABQB 234 , 77 Alta. L.R. (4 th ) 38, 415 A.R. 166, 156 A.C.W.S. (3d) 1093, 2007 CarswellAlta 493: The scope for appellate review of a permanent guardianship order is the same as for an order for custody: only where the judge has acted on a wrong principle or disregarded material evidence, or where the decision is otherwise clearly wrong, will the appellate court interfere. See T.(M.) v.

Alta. (Director of Child Welfare) , 363 A.R. 306 at para. 24 , 2005 ABCA 125 ; S.E.M. , Re (1986), 1986 CanLII 138 (AB KB) , 74 A.R. 23; 47 Alta. L.R. (2d) 380 (Q.B.); T.L.O. v. Director of Child Welfare (Alta.) (1995), 1995 CanLII 9197 (AB KB) , 175 A.R. 194 (Q.B.); T.P. v.

Director of Child Welfare (Alta.) (1998), 1998 ABQB 892 (CanLII) , 231 A.R. 115 (Q.B.). (Paragraph 56) [ 21 ] The task of this court is to both determine whether the trial judge made a reversible error as measured against the above standard of review and to consider whether the more current evidence of the mother’s emotional condition ought to have an impact on the decision reached. 6. The Issues [ 22 ] There are two grounds of appeal.

First, that the trial judge committed a reviewable error by failing to give adequate weight to the goal of family reunification and by failing to consider all aspects of s. 2, and specifically s. 2(f), when assessing timing under s. 34(c). [ 23 ] Second, that the most recent evidence of her improved functioning demonstrates that the child could now be returned to her within a reasonable time. 7. Analysis A. Domestic Violence, s. 2(

f) and s. 34(1) [ 24 ] The mother argues that the trial judge committed an error in law in not reading s. 2(

f) in conjunction with s. 34(1)(

c) and by giving insufficient consideration to the domestic violence she experienced. She claims that s. 2(

f) is both mandatory and specific. This subsection exists in addition to the many other generally worded provisions about the family being the basic unit of society and outlining the obligation to employ the least invasive methods of intervention. The legislature chose to make domestic violence an express consideration. The particular purpose of s. 2(

f) is to differentiate the abused family member(

s) from the abuser; with the result that the presence of domestic violence is a factor that informs the best interest of the child and it is argued that it ought to be used when considering whether return can be effected within a reasonable time. It is submitted that only in this way are s. 34(1) and s. 2 read together and harmoniously as required in D. (A). v. Director of Child Welfare , 2010 Carswell Alta 438, at paras 20-23 . [ 25 ] The idea is thus that what is “reasonable” needs to be considered in relation to the existence and extent of any domestic violence present.

Thus the full circumstances surrounding the domestic violence, including its nature, seriousness, duration and consequences may operate to extend what would, absent domestic violence, be seen as a reasonable time. [ 26 ] The trial judge did not cite s. 2(

f) or refer to it expressly as a mandatory consideration. Counsel for the mother properly

concedes that the failure to mention this subsection or tie found facts to its mandatory consideration do not amount to reversible error. See F. (T.) v. Alberta (Director of Child and Family Services) , 2009 ABCA 290 . [ 27 ] Rather the mother says the error is that the trial judge did not employ s. 2(

f) in his analysis. While there are many references to and acknowledgements of abuse throughout the judgment, the mother argues that there is but one line in paragraph 161 where the trial judge speaks about how the presence of domestic violence and the extensive evidence of abuse may have affected his reasoning and conclusion. It says, with modifications in respect of identity: “In my opinion the evidence amply supports the conclusion that [the mother] had lived in an abusive relationship with [her former husband]...” [ 28 ] The Director argued that s. 2(

f) only applies before a child is taken into custody. However, the wording of the

section suggests that the legislature had a broader purpose and scope in mind. [ 29 ] In my view, the correct reading and inter-relationship between these sections need not be determined to decide this appeal. For the purposes of analysis I will employ the mother’s suggested

interpretation of these provisions, adding that if there ever was a case where the proposed reading of s. 2(

f) and s. 34(1)(

c) would have relevance and resonance, the case at bar is one. [ 30 ] However, even reading the sections in the way requested, the mother’s argument is not accepted as the presence of domestic violence and its seriousness were not only considered, they played a central, even pivotal role in how the Director approached the mother and child and how the trial judge both managed the trial and decided the case. [ 31 ] I turn first to the argument that the Director failed to fulfill its obligations. With respect, the evidence does not support this claim.

Indeed a review of all steps taken both before and after apprehension illustrates that the Director continued to attempt reunification and to provide various supports and services. While some of the reports may show a certain lack of sensitivity, the depth of the mother’s difficulties was recognized in the amount and nature of support and the period of time over which it was extended. The Director’s levels of intervention were progressive and only developed over time into an application for a P.G.O., as best illustrated by the changes in the recommendations made by Dr.

Choate. [ 32 ] Even if the Director had a “heightened duty” as alleged by the mother, the Director has discharged it. For example, prior to apprehension the child was referred to Dr. Carla Atkinson, a psychiatrist who said the child suffered from post traumatic stress disorder and attachment disruption. The child was also assessed by the Collaborative Mental Health Program, and several recommendations for intervention services were made. The mother chose not to accept or pursue any of these recommendations for follow-up services for the child.

After the apprehension the mother received intensive individual therapy with Ms. Janet Wagar from September 2008 to September 2009. Ms. Wagar specializes in working with female victims of domestic violence, trauma, and clients who are difficult to engage. The Director also attempted various access arrangements for the mother after apprehension, including supervised visits, therapeutic access with the Aspen In-Home Therapeutic Program, and contact during assessments.

The Director sought an adjournment to the P.G.O hearing in an attempt to facilitate reunification in September 2008. [ 33 ] In terms of management of the trial, the trial judge himself granted another adjournment of the trial in April 2009 for the purposes of instituting a further and different intervention designed to reunify the mother and child, being the therapeutic access approach with Dr. Sonya Vellett. This final attempt at re-unification failed when the mother terminated the services of Ms. Vellet. [ 34 ] In turning to the decision, the trial judge was alive to s. 2(

f) and took adequate consideration of this aspect of the best interest of the child in respect of the decision he was required to make under s. 34(1)(c). There was a thorough review of the history of the matter and the multidisciplinary intervention services aimed at remedying the issue of domestic violence and keeping the family unit intact. These included therapy for the mother, therapy for the child, parenting and psychological assessments, and several attempts at therapeutic access to reunify the mother and the child.

The trial judge analysed the matter in relation to the “best interests of the child test”, a compendium which refers all parts of s. 2, in paras 139, 154, 155, 183, 209 and 236 and balanced the various considerations with the desire to preserve the family unit was also considered in paras 85, 105, 107, 108, 122, 138, 141, 193.

He assessed the evidence as it related to therapeutic access/reunification from several witnesses, determined credibility and assigned weight to the experts he heard. [ 35 ] There was a proper consideration by the trial judge and the Director of the role of domestic violence in assessing the best interest of the child and under s. 34(1)(c). Domestic violence was so much a part of the case at bar that s. 2(

f) need not have been referred to expressly to demonstrate that it had been considered.

[ 36 ] Even were this not the case, s. 2(

f) is but one factor in assessing the best interests of the child and the trial judge did not err in concluding, after hearing all the evidence before him and balancing all the factors, that the child could not be returned within a reasonable time. [ 37 ] The trial judge considered the extensive evidence on the need for the child to have stable, permanent and nurturing relationships from the child’s therapist, Kim Rempel. He accepted evidence from Dr. Choate, Eileen Ailon and Dr. Vellett on the need for early permanency for children in care in paras 121, 137, 152 and 155.

He also considered the views and opinion of the child, through the child’s therapist, caseworker, and counsel. Consideration was given to the impact of delay in proceedings and grounding the ultimate decision in the best interests of the child in paras 208 and 238-254. The evidence at trial amply supports his conclusion that the child could not returned within a reasonable time and that a P.G.O. should issue. B. Does the most recent evidence of her improved functioning demonstrates that the child could now be returned to her within a reasonable time? [ 38 ] This Court heard evidence from Dr.

Karen Massey, a psychologist who treated the mother. Between October 30, 2009 and December 11, 2009 there was a total of nine, one and a half hour in person sessions. When the mother’s funding ran out, Dr. Massey provided a series of pro bono telephone sessions, being 10 sessions of various durations between January 2010 and April 22, 2010. When funding was approved once again, in person sessions were renewed on August 10, 2010.

Nine sessions of one and a half hour duration were conducted until September 16, 2010. [ 39 ] Dr Massey was qualified as an expert in counselling psychology, specializing in trauma, depression and anxiety. Dr. Massey produced a report and her clinical notes and testified concerning her treatment of the mother. Dr. Massey relied on information supplied by her patient, she performed no assessments, document reviews or third party interviews, and did not address the mother’s capacity to parent. [ 40 ] Dr. Massey testified that the goal and plan was to treat the mother first as a person, then as a parent.

The focus was on self care and establishing a therapeutic relationship of trust, safety and stability so that the mother may be in a position to work on the abuse and related traumas which caused or contributed to the mother’s dysregulation and difficulties. Dr. Massey reported that the mother worked hard and with discipline and dedication and began to build insights into her behaviour, began to focus on the positive and to redirect any negative energies; and to soften her approach and impact.

The mother was said to make some progress, to become more confident in herself and less dependent on others, especially her mother, for support and validation. However, Dr. Massey said they were still not in a position to do work relating to the traumas she suffered and her ongoing anxiety about her child. Dr. Massey said change could continue if the mother so chooses and suggested they could make good progress in three months, with two sessions per week. In cross-examination Dr. Massey explained that having a lot of work to do does not necessarily mean taking a significant amount of time.

In terms of timing she stated: it is suggested that she continue counselling with a Registered Psychologist who is trained in trauma work for approximately three to six months so that she can work through her traumas as originally planned. [ 41 ] Dr. Massey acknowledged that time lines for therapy must remain flexible and that it is difficult to predict how long therapy may take. In addition there is never a guarantee that therapy will be successful. At the trial Dr. Massey testified about a potential treatment plan that could result in possible reunification.

At that point she had not met with the mother and said that hypothetically the time needed to do the deep work around trauma is usually between four to six sessions. [ 42 ] The trial judge gave little weight to this proposal. The reality is that in November 2010 and after 21 sessions with Dr. Massey, the mother is still not in a position to begin the trauma work. When Dr. Vellett sought to delve into the mother’s experience of abuse, the mother had a breakdown.

The mother terminated the therapy, knowing the therapy was put forward as a last chance and even after being told that termination may have serious consequences. [ 43 ] Counsel for both the Director and the child point to various limitations in Dr. Massey’s assessment, arguing that it is based solely on the mother’s self-reported behaviour and may contain an advocacy bias. Even ignoring these concerns and accepting Dr. Massey’s opinion as a full and accurate reflection of the mother’s current position, I conclude that the child cannot be returned within a

reasonable time. The evidence falls well short of what would be required to meet s. 34(1)(c), given the overall circumstances of the case. Over the past four years, extending before apprehension, many supports have been in place and they have failed to achieve the type of therapeutic progress in the mother which could allow her parenting to keep the child safe and to protect the best interests of the child. [ 44 ] The abuse suffered by the mother is extreme and has had significant consequences for her. Even accepting that s. 2(

f) may extend the time in which it is reasonable to return a child to a parent traumatized by abuse, the focus in the Act is on the child’s needs and development. In light of the lack of work on the mother’s underlying traumas to date such reasonable time has passed. At trial there was evidence about the cycle of violence. The abuse suffered by the mother began as a child. Her child was then caught in the same cycle, whether by exposure to the maternal grandparents, witnessing the violence against the mother by the grandparents or living with a mother injured by abuse.

In the case at bar, breaking the cycle of violence in the best interests of this child means further emotional injury to a mother already made vulnerable by victimization. However, the key concern under the Act is the overall welfare of the child. The evidence shows that the child has been stabilized to the point that therapy for post traumatic stress disorder is no longer seen as necessary at this time. The child has formed attachments in the foster home and has repeatedly expressed the opinion that the child does not feel safe or want to return to the mother’s care. 8.

Conclusion [ 45 ] The trial judge committed no reviewable error and even if there was a reviewable error, which there was not, the trial judge was not wrong to grant the P.G.O.. The new evidence before this Court does not support a different conclusion. [ 46 ] The appeal is dismissed. Heard on the 8 th , 10 th , 12 th , 16 th and 17 th days of November, 2010. Dated at the City of Calgary, Alberta this 22 nd day of November, 2010. S.L. Martin J.C.Q.B.A. Appearances: A. Paul Allyjan for the Appellant Elizabeth M. Iredale for the Respondent Bradley Spier

for the Child Case Authorities Provided and Considered 1. Alberta (Director, Child, Youth & Family Enhancement Act) v. B. (L.) , 2008 CarswellAlta 1029 2. Alberta (Director of Child Welfare) v. C.B. , [2003] A.J. No. 671, 2003 ABPC 97 , 123 A.C.W.S. (3d) 500, Online: QL 3. B.H. (Next friend of) v. Alberta (Director of Child Welfare) , [2002] A.J. No. 518, 2002 ABQB 371 , [2002] 7 W.W.R. 616, 3 Alta. L.R. (4 th ) 16, 302 A.R. 201, 95 C.R.R. (2d) 333, 28 R.F.L. (5 th ) 334, 113 A.C.W.S. (3d) 274, Online: QL 4. C.B. v. Alberta (Director, Child Welfare ), 2007 ABQB 234 (CanLII) , [2007] A.J. No. 429 5.

Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C. ), 1994 CanLII 83 (SCC) , [1994] 2 S.C.R. 165 6. D. (A.) v. Director of Child Welfare , 2010 Carswell Alta 438 7. F. (T.) v. Alberta (Director of Child and Family Services) , 2009 ABCA 290 8. G. (S.) v. Children’s Aid Society of Cape Breton , 1995 CarswellNS 65 9. Housen v. Nikolaisen 2002 SCC 33 (CanLII) , [2002] 2 S.C.R. 235 10. Kirin-Amgen Inc. v. Hoffmann-La Roche Ltd. , 2000 CarswellNat 3187 11. Palmer and Palmer v. R 1979 CanLII 8 (SCC) , 1980 1 S.C.R. 759 at paragraphs 24 to 28 12. R. v. Thomson , 1995 CarswellBC 1245