L.C., E.M.P. by Her Next Friend L.C., D.C. by His Next Friend L.C. v. C.C. by Her, 2011 ABQB 12

Court of Queen ’ s Bench of Alberta Citation: L.C. v. Alberta (Metis Settlements Child & Family Services, Region 10), 2011 ABQB 12 Date: 20110107 Docket: 0703 10836 Registry: Edmonton Between: L.C., E.M.P. by Her Next Friend L.C., D.C. by His Next Friend L.C. and C.C. by Her Next Friend L.C. Plaintiff - and - Her Majesty the Queen In Right of Alberta and Metis Settlements Child & Family Services, Region 10 Defendants - and - D.L.

Proposed Next Friend 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. _______________________________________________________

Memorandum of Decision of the Honourable Mr. Justice R.A. Graesser _______________________________________________________ I. Nature of Application [ 1 ] Mr. Lee has applied for relief under New Rule 1.2(2). He seeks directions from the Court to “identify the real issues in dispute so that the case can proceed efficiently”. [ 2 ] This lawsuit is one of a number of similar cases relating to a proposed class action. The plaintiffs in C.H.S. v. Alberta (Director of Child Welfare) , Action No. 0503 12123 (the “C.H.S. Action”), were originally intended to be the representative plaintiffs in the class action.

However, it appears that C.H.S. no longer wishes to be the representative plaintiff in the proposed class action, either for herself as a parent or as Next Friend for her children. [ 3 ] The torch was then passed to the plaintiffs in T.W. v. Alberta (Edmonton and Area Child & Family Services, Region 6) , Action No. 0803 08196 (the “T.W. Action”). However, as Permanent Guardianship Orders were granted with respect to T.W.’s children, T.W. is no longer able to act as Next Friend for them and they are now represented by other counsel.

Further, T.W. is not a suitable representative plaintiff for the proposed class of parents and guardians of apprehended children as her status as an “ordinary” plaintiff is unclear and Mr. Lee has been unable to obtain proper instructions from her with respect to any surviving claims. [ 4 ] Now, the role of representative plaintiff has fallen to L.C. in this Action (the “L.C. Action”). The L.C. Action was commenced as an individual action by L.C. on her behalf and on behalf of her three children. The Statement of Claim in the L.C.

Action reflects only these individual claims and was not issued with the intent of converting the action to a class proceeding. L.C. and her children are now being put forward as the representative plaintiffs for the proposed class action. [ 5 ] Mr. Lee is counsel for C.H.S., T.W. and L.C., as well as other plaintiffs who have commenced similar actions against the Crown. II. Background A. Procedural History [ 6 ] This lawsuit is one of a group of cases under case management arising from the Court of Appeal’s decision in T.S. v. Alberta (Director of Child Welfare) , 2002 ABCA 46 (“ T.S. #1 ”).

In that decision, the Court of Appeal held that a Temporary Guardianship Order (“TGO”) granted in favour of the Director relating to a child apprehended under the Child Welfare Act , S.A. 1984, c. C-8.1, automatically expired and became a nullity if a care or service plan (“care” or “service” being used interchangeably) was not filed within 30 days from the date of the TGO.

TGOs are intended for situations where there is a common hope between the Director and the parents or guardians that the apprehended children will be eventually reunited with their parents or guardians. [ 7 ] The Alberta Legislature responded to T.L. #1 by enacting the Child Welfare Amendment Act , 2002, No. 2, S.A. 2002, c. 10 (“2002 Amending Act”), which provides that despite any decision of any court, a TGO issued prior to February 21, 2002, is deemed to be valid from the date the TGO was made, even if a care plan had not been filed in accordance with the statute.

This amendment came into effect on May 14, 2002, when it received Royal Assent. Effective November 1, 2004, the requirement to file care plans was removed by virtue of s. 32 of the Child Welfare Amendment Act , 2003 , S.A. 2003, c. 16 (“2003 Amending Act”).

[ 8 ] In C.H.S. v.

Alberta (Child, Youth and Family Enhancement Act, Director) , 2010 ABCA 15 , the Court of Appeal considered these amendments and noted at para. 7 that “there remained a period of time, from February 21, 2002 through to October 31, 2004, for which the validity of a TGO still required the Director to file a care plan no later than 30 days from the date of the TGO”. [ 9 ] Thus, while the 2002 Amending Act appears to have cured any problems to February 21, 2002, it also appears that the Director continued to fail to file care plans in a timely way in some cases until November 1, 2004, when the filing obligation ended. [ 10 ] Following the decision in T.S. #1 , a number of claims were filed on behalf of other children who were subject to TGOs and for whom no care plan had been filed within the statutory time limit.

These children are seeking damages for false imprisonment, negligence, breach of fiduciary duty, Charter breaches and other wrongs alleged to have been committed against them. In addition, claims were filed on behalf of the parents, guardians and siblings of these children, seeking damages for the harm they allegedly suffered as a result of the Director’s failure to file a timely care plan and to return the children subject to the TGOs to their families. [ 11 ] In the C.H.S. Action, Slatter J. (as he then was) considered an application by the plaintiffs to amend their Statement of Claim.

He held that constitutional arguments under ss. 2(d), 9 and 12 of the Charter had no chance of success and that only s. 7 was potentially arguable based on “the suggestion that a child welfare system without a requirement of a care plan is unconstitutional”: C.H.S. v. Alberta (Director of Child Welfare) , 2006 ABQB 528 at para. 27 , aff’d 2006 ABCA 355 (“ C.H.S. #1 ). [ 12 ] Following the decision of Ouellette J. in M.B. v. Alberta (Director of Child Welfare), 2005 ABQB 204 , (the same M.B. who sought to be added in the T.W.

Action as a representative plaintiff and next friend), claims have been filed or are anticipated to be filed by children subject to TGOs and their parents, guardians and siblings, in cases where despite the filing of a document entitled “care plan” within 30 days, the document was so deficient that it could not properly be considered to meet the requirements under the Child Welfare Act . [ 13 ] The C.H.S. Action involved claims by children subject to PGOs and their parents and guardians. In 2008, the Director applied in this Action and in the C.H.S.

Action to strike out the Statements of Claim under Rule 129(1)(a). In C.H.S. v. Alberta (Director of Child Welfare) , 2008 ABQB 513 (“ C.H.S. #2 ), Thomas J. (who was then the case management judge for the C.H.S. Action) struck the claims of the parents and guardians relating to negligence, breach of fiduciary duty, misfeasance in a public office, and constitutional torts.

He also held that the children themselves had arguable claims in negligence against the Director, and that while there was a possible constitutional claim under s. 7 of the Charter, it had not been properly pled. [ 14 ] Thomas J. further held that the only claims which survived the 2002 and 2004 amendments to the Child Welfare Act were in relation to TGOs filed between February 21, 2002 and November 1, 2004, and limited the proposed class to children subject to TGOs granted during that period. [ 15 ] In this action, the Crown brought a similar application to strike the Plaintiffs’ claim. The L.C.

Action involves claims by L.C. as the parent and guardian, the apprehended child and siblings (one of whom has since died and the other has since reached adulthood). Nielsen J., who was then case managing the L.C. Action, followed the reasoning of Thomas J. in C.H.S. #2 and struck all claims but the child’s negligence, breach of fiduciary duty and false imprisonment claims. [ 16 ] In the parallel decisions of C.H.S. v. Alberta (Child, Youth and Family Enhancement Act, Director) , 2010 ABCA 15 (“ C.H.S. Appeal ”), and L.C. v. Alberta , 2010 ABCA 14 (“ L.C.

Appeal ”), the Court of Appeal ruled that the children subject to the TGOs had arguable negligence claims but confirmed that their mother and family members did not. Quoting Syl Apps Secure Treatement Centre v. B.C. , 2007 SCC 38 , the Court noted at para. 22 of the C.H.S.

Appeal that “(s)ince Syl Apps was decided, courts have almost unanimously found that child protection authorities do not owe a duty of care to family members of children in their care”. [ 17 ] The Court of Appeal accepted that there were fiduciary duties owed by the Director to apprehended children, but agreed with Thomas J. that such claims on behalf of parents or guardians are “bound to fail”: C.H.S. Appeal , at para. 33. [ 18 ] The Court of Appeal further held at para. 36 of the C.H.S.

Appeal that the issue of whether the Director’s failure to file a care plan in a timely way and the failure to return the children to their families when the TGOs became void engaged the appellants’ rights to security of the person based on s. 7 of the Charter, is “loosely supported”.

[ 19 ] In the L.C. Appeal , the Court of Appeal held at para. 13 that no duty of care exists between the Director and parents, guardians or siblings. The claims of the parents or guardians and siblings based on breach of fiduciary duty met a similar fate. [ 20 ] In terms of the children subject to the TGOs, their claims for negligence, breach of fiduciary duty and false imprisonment were allowed to proceed.

Claims that the Director failed to comply with his statutory duties, and that procedures taken by the Director were unfair and failed to comply with principles of fundamental justice, were considered moot in the L.C. Appeal , but were allowed to proceed in the C.H.S . Appeal , subject to the Statement of Claim being amended to describe the claim in the context of Odhavji Estate v.

Woodhouse , 2003 SCC 69 . [ 21 ] Constitutional arguments under ss. 7 and 9 of the Charter were allowed to proceed, although the Court of Appeal noted that C.H.S.’s and L.C.’s pleadings needed to be amended in order to properly plead these claims.

Claims under ss. 2(d) (freedom of association), 12 (cruel and unusual punishment) and 15 (equality) were not permitted to proceed. [ 22 ] The Court of Appeal took no issue with Nielsen J. striking the claims alleging contraventions of the Bill of Rights and international conventions, and held that issues relating to the constitutionality of the 2003 Amending Act were moot, as the claims in C.H.S . and in L.C . related to actions during the period when the Director was obliged to file care plans, and not after they had been abolished by the 2003 Amending Act : L.C.

Appeal at para. 17 . [ 23 ] However, in paras. 40-42 of the C.H.S. Appeal , the Court of Appeal held that because that action was intended to be the vehicle for the class action, pleadings relating to the 2002 Amending Act should not have been struck as it raises a potential defence to the Statement of Claim. As such, the validity of the 2002 Amending Act and whether it validly extinguished claims remains in issue.

The validity of the removal of the requirement to file care plans altogether by virtue of the 2003 Amending Act may be treated similarly. [ 24 ] In the interval between Thomas J.’s decision in C.H.S. #2 and the Court of Appeal’s decisions in the C.H.S. Appeal and the L.C. Appeal (August, 2008 to January, 2010), the two actions, as well as the T.W. Action, essentially sat waiting to see the result in the Court of Appeal. [ 25 ] After the Court of Appeal decisions were issued, a joint case management conference was held with counsel, Thomas J. as case management judge in the C.H.S.

Action, and myself as the case management judge in the T.W. Action (it then being the intended class proceeding action). The result of that conference was that all related litigation would be stayed other than the T.W. Action. The C.H.S. Action would also be stayed, because it appeared that the C.H.S. Action was not going to proceed towards a certification application. After the joint conference, it seemed that the T.W.

Action was ramping up to be turned into the proposed class action, and to potentially add as plaintiffs M.B., and her grandchildren S.B., D.B.R. and S.B. by their next friend M.B., and B.M., and her children N.B. and A.O. by their next friend B.M. [ 26 ] A 149 paragraph draft “Amended Amended Statement of Claim Pursuant to the Class Proceedings Act ” was prepared and appended to an application to amend T.W.’s Statement of Claim (the “Proposed Amendments”). Lengthy affidavits filed by M.B. and B.M. were provided in support of the application to amend.

These affidavits chronicle the problems M.B. and her grandchildren S.B. and D.B.R, and B.M. and her children N.B. and A.O. all had with Child Welfare. [ 27 ] The Proposed Amendments include allegations that the provisions of the 2003 Amending Act that abolished the requirement to file care or service plans are unconstitutional under ss. 7 and 9 of the Charter .

The Proposed Amendments would create further potential claimants, namely those children subject to TGOs granted after November 1, 2004 and for whom no care plans were filed, as well as their parents, guardians and siblings. [ 28 ] It is clear that various claims arising out of T.S. #1 are headed towards a class action certification application. These claims have resulted in extensive case management proceedings involving numerous judges: in the C.H.S. Action, firstly by Slatter J. (as he then was), and then Thomas J.; in the T.W. Action, by myself; and in the L.C.

Action, firstly by Thomas J., then Nielsen J., and now me. The C.H.S. Action has been to the Court of Appeal twice, firstly on appeal from Slatter J.’s order disallowing various amendments to the Statement of Claim in C.H.S. #1 , and then from Thomas J.’s order striking most of the claims in C.H.S. #2 . The L.C. Action has also been to the Court of Appeal, from Nielsen J.’s decision striking most of the claims.

[ 29 ] A motion has been brought before me in the T.W. Action to approve a fee agreement. Mr. Lee also gave notice before May 14, 2010 that he intended to bring an Okanagan application in the T.W. Action for advance costs (based on Supreme Court of Canada’s decision in British Columbia (Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71 ) so that he can be financially compensated and retain others to assist in the litigation to amend the pleadings to bring them into line with the C.H.S. Appeal and the L.C. Appeal, to add the M.B. claims and B.M. claims, and to bring the certification application. [ 30 ] As we worked to

schedule applications on behalf of M.B. and B.M. and to hear an Okanagan application through case management, T.W.’s children became permanent wards by virtue of an order of Goss J. (completing an application that had begun before her in Provincial Court before her appointment to Queen’s Bench). That order, which has since been appealed but the appeal has not yet been heard, left T.W. without the capacity to maintain the action as next friend of her two children.

One of M.B.’s grandchildren has also been made a permanent ward. [ 31 ] For both T.W.’s children and for M.B.’s grandson, the Public Trustee has made it clear that he does not consent to T.W. or M.B. continuing in their roles as next friends for their children, and that through the Public Trustee, the children are now being represented by outside counsel, Brian Laidlaw of Kolthammer, Batchelor & Laidlaw in Edmonton, and not by Mr. Lee. [ 32 ] During case management, I directed that it was premature to

schedule a certification application as there was not yet an identified capable next friend for any of the apprehended children, nor a clearly capable adult plaintiff to act as next friend, maintain claims in his or her own right and act as a representative plaintiff. I also found that it was premature to

schedule an Okanagan application because it was unclear as to which litigant might bring such an application, other than Mr. Lee as counsel. It was also unclear as to what claims were intended to proceed to a certification application. In short, I considered it necessary to establish a properly represented plaintiff for the affected children at the very least, and to work towards getting pleadings for such a plaintiff into a state where the claims intended and permitted to proceed were properly set out. [ 33 ] Mr.

Lee had represented that none of the Plaintiffs he is acting for had funds to pay him and that he was unable to proceed much further, including amending the pleadings, without first obtaining advance costs. Because of these funding concerns, a “mini- Okanagan ” application was scheduled for October 19 to 22, 2010. The intent was to sort out the identified plaintiff issue discussed above before the application, so that it would be clear who was applying for funding to amend the Statement of Claim and pursue certification of the class proceeding. As a result of the pending application in the T.W.

Action to have B.M., M.B., and their children added as plaintiffs, the Crown wanted to cross-examine T.W., B.M. and M.B. on their affidavits. Mr. Lee also sought to secure the attendance of various Crown witnesses at the mini- Okanagan application, which was opposed by the Crown. B. “Mini- Okanagan ” Application [ 34 ] I need not describe all of the twists and turns that eventually led to the “mini- Okanagan ” application in October, 2010. Although the application was originally intended to be made in the course of the T.W. Action, it ended up in L.C. Action instead.

Initially, M.B. had applied to be the next friend for T.W. and her children in the T.W. Action; before the application was heard, April Kellett was substituted as the proposed next friend. The applications that proceeded in October were in relation to the L.C. Action only, and included the following: By the Plaintiffs: 1. To revive this action (the L.C. Action) and put it forward as the intended class proceeding; 2. To appoint Denise Lightning as next friend for L.C. and E.M.P. (L.C.’s daughter), D.C.’s estate (D.C. being L.C.’s deceased adult son), and C.C. (L.C.’s now adult daughter); 3. To relieve Ms.

Lightning from any obligation to pay costs as next friend; and 4. For advance costs to allow for payment of steps necessary to get the pleadings in the L.C. Action regularized so as to permit Ms. Lightning, as next friend, to apply for certification. By the Crown:

1. To strike portions of the affidavits being relied on by Mr. Lee in support of the applications on various bases; and 2. For an order directing an independent medical examination of L.C. and the production of some of her medical records (because Mr. Lee has advised that L.C. is medically unable to be cross-examined or to instruct him in regard to her claim). [ 35 ] In response to the second part of the Crown’s application, Mr. Lee seeks to avoid having L.C. cross-examined or subjected to an independent medical examination on the basis of her state of health.

The appointment of a next friend for L.C. remains pending until the medical records are produced and the Crown can consider whether it wants to cross-examine L.C.’s physician as to her fitness to proceed with the litigation herself. [ 36 ] A further application remains outstanding and needs to be scheduled. Mr. Lee had unsuccessfully applied before Thomas J. in the C.H.S. Action for an order requiring the Crown to provide him with the names and contact information for all individuals that “meet the criteria of child class members”. By way of a similar application in the T.W.

Action dated April 12, 2010, Mr.Lee argues that the “pleadings herein disclose a cause of action for the Child Class against the Defendant, HMTQ for trespass/unlawful confinement, negligence, abuse of public office and Charter breach”, and that it was necessary for him to learn the identities of possible members of the Child Class. He further submits that the Crown is the only potential source of this information, as it knows which children were subject to TGOs, whether care plans had been filed, and whether the children had been returned to their families.

The Crown advised that such information was not readily available and would involve massive searches of files and court records. In any event, the application did not proceed and has not yet not been scheduled to be heard. C. Proposed Amendments to the Statement of Claim in the T.W. Action [ 37 ] The Proposed Amendments are to put forth the following individuals as plaintiffs and potential representative plaintiffs: T.W., MB. and B.M. as plaintiffs and representatives of a class of persons who: (

a) were the parent foster parent or guardian of a child; (

b) the child was removed from the their care pursuant to child welfare proceedings (

c) the child was kept under the guardianship, care or custody of HMTQ without a valid Court Order, including children that remained in the care of HMTQ after a valid Court Order ended or became void. (Collectively the “Parent Class”) D.B.R., E.B.R., S.B., A.O., J.W. and D.W. as plaintiffs and representatives of a class of persons who: (

a) were children that had parents, foster parents or guardians; (

b) were removed from those persons by HMQ pursuant to child welfare proceedings; (

c) were kept under the guardianship, care or custody of HMQ without a valid Court Order authorizing HMTQ to have the guardianship, care and or control of the child, including children that remained in the care of HMTQ after a valid Court Order ended. (Collectively the “Children Class”) [ 38 ] Before the application to amend the Statement of Claim was heard, M.B.’s application to become next friend for D.W. and J.W. was expanded to also include T.W., as T.W. was apparently not cooperating with counsel in regard to her own claim or her

children’s claims. T.W.’s suitability to act as representative plaintiff had been compromised because she could no longer be next friend for her children, who are subject to PGOs that are currently under appeal. [ 39 ] As matters worked their way towards the October hearing, April Kellett, a lawyer who had appeared before the Court of Appeal in T.S. #1 , applied to become the next friend for T.W., D.W. and J.W. in the T.W. Action, and to be the representative plaintiff in the intended class action. But before the October hearing, Ms.

Kellett withdrew her application and Denise Lightning has applied in her place. [ 40 ] Ms. Lightning is a lawyer of more than 10 years’ standing and with considerable experience in child welfare matters. She has now stepped forward to be appointed next friend for for L.C. and the other plaintiffs in the L.C. Action, and to be the representative plaintiff in the intended class action. However, her willingness to act is subject to being granted immunity from any liability for costs, and to being paid for her services. [ 41 ] At the October hearing, it became clear that the L.C.

Action was now the lawsuit in which certification would be sought. However, the only Statement of Claim actually referencing class proceedings was the one filed in the C.H.S. Action, which has been stayed since May, 2010. At present, there is no suggestion that the C.H.S. Action will continue as the intended class proceeding. The L.C. Action was also stayed in May, 2010, as it appeared at that point in time that the T.W. Action was progressing towards certification. However, there was only an as-yet unfiled draft Amended Amended Statement of Claim referencing the Class Proceedings Act , S.A. 2003, c.

C-16.5, in the T.W. Action, which was still facing an application to strike by the Crown in regard to the existing Statement of Claim. [ 42 ] A further difficulty arose in the L.C. Action in that L.C. herself is now unwilling to act as next friend for her children, or to proceed with the action herself, or as representative plaintiff for the Parent Class. This all leads us to Ms.

Lightning’s application to be appointed as L.C.’s next friend, as well as next friend for L.C.’s three children (one of whom is deceased, and another is now an adult). [ 43 ] As stated earlier, there were unresolved issues as to whether L.C. is in need of a next friend, as well as collateral proceedings in relation to the production of L.C.’s medical records and whether L.C. will undergo an independent medical examination. [ 44 ] At the October hearing, I ruled on the admissibility of the various affidavits put forward on behalf of L.C., and made orders in relation the independent medical examination process and L.C.’s medical record production.

I also reserved judgment on the following issues, decisions on which will be issued in due course: (

a) Whether to appoint Ms. Lighting as next friend for E.M.P., (

b) Whether as next friend Ms. Lightning would be granted immunity from costs and whether she would be paid, and (

c) Whether to grant the mini - Okanagan application. [ 45 ] During the October hearing, I was advised that there were difficulties with compliance with the orders I made in relation to the IME process and production of medical records, and I anticipate that there will be further applications in relation to L.C.’s status in the litigation. [ 46 ] It is clear that Mr. Lee is now looking to certify the L.C. Action as a class action with Ms. Lightning as the representative plaintiff in her capacity as next friend for L.C. (for the Parent Class) and as next friend for E.M.P. (for the Children Class).

The fact pattern for E.M.P. is that she was allegedly apprehended and made subject to a TGO on May 28, 2004. No care plan was filed with the court, and she was kept in the Director’s custody until September, 2006. Her situation falls within the applicable period of February, 2002 to November, 2004, as found by Thomas J. in C.H.S. #2 . [ 47 ] While Ms. Lightning has applied to be appointed next friend for D.C. (D.C.’s son and E.M.P.’s sibling), he reached adulthood after the L.C. Action was commenced and died some short time thereafter.

The appropriate procedure for any claim to be continued on his behalf is through the appointment of an administrator ad litem under the Surrogate Rules . No such application has been brought so any claim on his estate’s behalf is not properly before me. D.C. is not a proper plaintiff and his estate is not properly before the court.

[ 48 ] C.C. (L.C.’s daughter and E.M.P.’s sister) has turned 18 since this action was commenced. She is no longer in need of a next friend by reason of her age. Mr.

Lee has been unable to get instructions from her and I will not deal with a next friend application on her behalf without information about her being put before the court. [ 49 ] As a result, there is no identified sibling advancing a claim who is properly before the court if the proposed class action is intended to include claims on behalf of affected siblings. [ 50 ] This leaves the proposed class action with two plaintiffs representing two different classes of potential class members: an identified child, E.M.P. who was kept in the Director’s custody notwithstanding that the TGO had become a nullity; and L.C., a parent whose child was kept in the Director’s custody notwithstanding that the TGO had expired.

D. The Proposed Class Action [ 51 ] Mr. Lee has made it clear that the proposed class action is intended to include at least nine classes or subclasses. The potential classes or subclasses are as follows: 1. Children like E.M.P., who were apprehended, a TGO was granted between February 2002 and November 2004, no service plan was filed with the court, and they were kept under the Director’s guardianship and in his custody: T.L. #1; C.H.S. #2 (the “ C.H.S. #2 Children”); 2. Parents or guardians of the C.H.S. #2 Children, like L.C.; 3. Siblings of the C.H.S. #2 Children, like E.M.P.’s siblings; 4.

Children like D.B., E.B. and S.B., who were apprehended, TGOs were granted, care plans were filed, but the care plans were deficient and did not meet the requirements of s. 31(3) of the Child Welfare Act and which made the TGO “meaningless”: M.B. v. Alberta (Director of Child Welfare) , 2005 ABQB 204 , J.T. v. Alberta (Director of Child Welfare) , 2003 ABQB 402 ( c.f . V.S. v. Alberta (Director of Child Welfare) , 2004 ABQB 892 )(the “ M.B. Children”); 5. Parents or guardians of the M.B. Children, like M.B., a grandmother and guardian; 6. Siblings of the M.B.

Children, like D.B.’s siblings E.B. and S.B., or siblings of E.M.P, such as her deceased adult brother D.C. and her now-adult sister C.C.; 7. Children subject to guardianship agreements or PGOs which were agreed or consented to, but where the agreement or consent order is voidable or a nullity because of a lack of proper legal advice or misrepresentations made by the Director, as claimed by B.M.in her application to be added as plaintiff in the T.W. Action; 8. Parents or guardians of children subject to invalid agreements or consent orders; 9.

Siblings of children subject to invalid agreements or consent orders. [ 52 ] My understanding of the latter three classes relating to invalid agreements or consent orders is that such allegations have been made in relation to D.B. and E.B. (S.B.’s children and M.B.’s grandchildren). E.B. and D.B. were apparently eventually returned to the

custody of their mother S.B. and their grandmother M.B.), but as noted above D.B. is now subject to a PGO and has separate representation. M.B.’s status as someone who still wishes to pursue a claim for herself as guardian and S.B.’s status for her claim as parent are unclear, as are their interests in pursuing claims for E.B. as her friend. M.B. and S.B. have applied to be added as plaintiffs in the T.W. Action, which is currently on hold.

There may be elements of invalidity involved in the claims relating to A.O. being advanced by B.M. as well. [ 53 ] In addition to the nine potential classes listed above, there may be at least three additional groups: children for whom TGOs were granted before February, 2002, and after November, 2004, and no service plans were filed (calling into question the validity of the 2002 Amending Act, following the decision in the C.H.S. Appeal ); their parents or guardians; and their siblings.

Some groups might be further subdivided based on when the TGO was granted, i.e. depending on whether the TGO was granted before February, 2002, or after November, 2004. Those groups might be represented by B.M. and A.O. by his next friend B.M.. However, B.M.’s status in pursuing her claim and A.O.’s claim is unclear. Her application to be added as plaintiff was made in the T.W. Action, which is on hold. [ 54 ] I recite the above information to give background and context to the present application for advice and directions pursuant to Rule 1.2(2).

The above information represents only a small taste of the litigation, which also includes C.L. et al v. Her Majesty the Queen et al , Action No. 0703 12884, A.F. et al. v. Her Majesty the Queen et al , Action No. 0703 12964, S.M. et al v. Her Majesty the Queen et al, Action No. 0703 15159, J.O. v. Her Majesty the Queen et al , Action No. 0903 07043 and G.H. v. HMTQ , Action No. 0903 17941.

There have been numerous case management conferences and applications before myself, Thomas J., Slatter J. before his appointment to the Court of Appeal, Gill J. and Nielsen J. that are not reflected above. [ 55 ] Despite the large number of actions and plaintiffs, it now appears that only the L.C. Action may be considered by Mr. Lee as the suitable vehicle for the intended class action: some of the plaintiffs in other actions have lost interest in pursuing the matter; some do not wish to be the representative plaintiff in a class action; some do not want to run the risk of being liable for costs.

Of the existing “child” plaintiffs, it may be that E.M.P. is the “best”, as she would appear to clearly fit within the category of claimant defined in T.S. #1 . But she needs a next friend. Her mother L.C. would appear to be the “best” parent/guardian plaintiff, as her circumstances would appear to clearly fit within T.S. #1 as well. But L.C. apparently does not want to actively pursue the litigation, and the only way that her personal claim and her claim as representative plaintiff for the proposed Parent Class can be pursued is if there is a next friend appointed for her.

It is unclear as to whether her circumstances warrant the appointment of a next friend, and whether she actually wants her personal claim to proceed through a next friend, let alone as representative for the Parent Class in the proposed class action. As noted above, the only way Ms. Lightning will act as next friend is if she is relieved of potential liability for costs, and that she be paid for her services as next friend.

The merits of those positions has yet to be determined. [ 56 ] As far as other plaintiffs and potential representative plaintiffs are concerned, it is fair to say that at this stage, no one else appears to be coming forward to actively pursue his or her own claim as an aggrieved parent or guardian, or as next friend of their apprehended child.

While a number of such children have likely reached adulthood, there is no information before me that suggests that any of the now-adult children are coming forward with claims they wish to pursue individually or as representative plaintiffs. [ 57 ] Having regard to the amount of effort that has gone into these numerous lawsuits and the absence of any significant progress in getting the issues brought forward, I can understand Mr. Lee’s frustration.

Information from the Crown initially suggested that there may be some 600 children who may have been affected by the service plan issue during the two-and-one-half year period identified by Thomas J. in C.H.S. #2 . However, subsequent information suggests that there were many thousands of children “in the system” for whom TGOs were obtained. The Crown has advised that in some cases service plans were prepared but were not filed. In some cases, court clerks refused to accept service plans for filing.

When the time frame is expanded having regard to the issue as to the validity of the 2002 and 2003 Amending Acts, and one considers the issues relating to inadequate service plans and improperly obtained consents or agreements, the number of affected children, parents, guardians and siblings is potentially very large. [ 58 ] Having regard to the difficulty in finding appropriate individuals to come forward to commence actions, act as next friends, and be prepared to be representative plaintiffs, it is also understandable why Mr.

Lee is frustrated by the Crown’s refusal to provide the names and contact details of all affected persons. The Crown’s position is supported by a previous decision made by Thomas J. in the course of the C.H.S. litigation. [ 59 ] A class action has already been certified by Thomas J. in relation to the alleged failure of the Public Trustee to appoint counsel and pursue claims on behalf of children allegedly harmed while in the custody or guardianship of the Director: T.L. v. Alberta (Child, Youth and Family Enhancement Act, Director), 2008 ABQB 114 , aff’d 2009 ABCA 182 .

There is some potential overlap between the class action certified by Thomas J. and the intended class action for children with T.S. #1 claims who became subject to PGOs. Hence, the recent appointment of counsel for D.W, J.W. and D.B.

[ 60 ] Mr. Lee did not appeal Thomas J.’s order relating to the production of names in the C.H.S . litigation. He has applied to me in the T.W. Action for the same relief as was denied by Thomas J. in the C.H.S . litigation. I am not bound by Thomas J.’s decision in this regard and at some stage, may have to deal with the matter myself. III. Steps Required Before Certification Application [ 61 ] As at the time that this application was brought under New Rule 1.2(2), the status of the related litigation arising out of T.L. #1 is that all of the actions except for the T.W. Action have been stayed. However, the T.W.

Action has now essentially become dormant, and the L.C. Action was revived to carry on with the certification process. If the L.C. Action is to proceed towards certification, it will first require: 1. Appointing a next friend (now a litigation representative) for E.M.P.; 2. Appointing a next friend (now a litigation representative for L.C.; 3. Resolving the status of D.C.’s claim (now deceased); 4. Resolving the status of C.C.’s claim (now an adult); 5. Amending the Statement of Claim to: (

a) reflect the Court of Appeal’s decision in the C.H.S Appeal ; (

b) reflect the Court of Appeal’s decision in the L.C. Appeal ; and (

c) convert the action into one under the Class Proceedings Act . [ 62 ] These steps partly await my decision on the mini- Okanagan application, which will resolve issues relating to the appointment of a next friend for E.M.P., including immunity from liability for costs and payment for legal services rendered, and the extent to which advance costs might be ordered from the Crown to pay for appropriate amendments to the pleadings. [ 63 ] But that still leaves outstanding issues relating to the appointment of a next friend for L.C., and the status of D.C.’s and C.C.’s claims. [ 64 ] Once the next friend issues have been determined, the amendment process will not likely be an easy one.

There are likely to be disagreements between Mr. Lee and Crown counsel as to the proper

interpretation of the C.H.S. and L.C. Appeals, as well as the pleadings for the constitutional claims, the validity of the 2002 and 2003 Amending Acts, and the claims of misfeasance in public office. It is already obvious that the parties take a different view as to what claims might be pursued on behalf of the parents, guardians and siblings. [ 65 ] An additional issue that looms on the horizon is the extent to which there needs to be a real plaintiff that fits the description of the class in a class proceeding, so as to be entitled to compensation if the action is successful.

This may be a fairly straightforward issue in terms of E.M.P. and L.C., as their circumstances appear to fit within those described in T.S. #1 . However, their claims do not relate to inadequate service plans, void or voidable consents or agreements, or TGOs granted outside the February, 2002, to November, 2004, timeframe. [ 66 ] While it seems clear from the Class Proceedings Act that the representative plaintiff does not necessarily have to be one of the class members, there is nothing in the legislation that suggests that there does not have to be an actual plaintiff who is part of the class.

There are nine to 12 or more arguable classes or subclasses here, and the current plaintiffs only fit in two of those classes. [ 67 ] I recognize that the Class Proceedings Act is new in Alberta, and that this is a relatively new area in Canadian law. No one as

yet has pointed me to authority indicating that a class action can be commenced by a plaintiff as representative for unnamed, and even unknown, persons who are likely to fall into different classes. [ 68 ] The effect of Mr. Lee’s argument is that there are bound to be a number of people out there that fit within each of the nine or 12 classes or subclasses. The identities of those people are known, or at least ascertainable, by the Crown. It is artificial to require an actual person from each class or subclass to be front and centre in the class action.

The representative plaintiff does not have to be a class member under s. 2(4) of the Class Proceedings Act , so someone like Ms. Lightning should be able to bring proceedings as next friend. Because there is precedent for the Public Trustee hiring and paying for individuals to act as next friends for children under PGOs who are involved in litigation, payment for someone like Ms. Lightning should be forthcoming by the Crown. Further, as there are precedents for the Public Trustee to indemnify a next friend against costs incurred in the course of pursuing litigation for the benefit of a child under a PGO, Mr.

Lee argues that shielding Ms. Lightning as the next friend from liability for costs should not be problematic either. Since the next friend may need legal advice and legal representation, allowing payment for a lawyer ought to follow, particularly given that the Public Trustee has paid for legal representation for a child under a PGO. [ 69 ] The relevant provisions of the Class Proceedings Act are as follows: 2(1) One member of a class of persons may commence a proceeding in the Court on behalf of the members of that class.

(2) A person who commences a proceeding under subsection (1) must make an application to the Court for an order certifying the proceeding as a class proceeding and, subject to subsection (4), appointing that person, or another person who on certification will be a member of the class, as the representative plaintiff. ...

(4) Notwithstanding subsection (2), the Court may certify a person who is not a member of the class as the representative plaintiff for the class proceeding but may do so only if, in the opinion of the Court, to do so will avoid a substantial injustice to the class.

(5) A person who may be both a member of a class and a member of a subclass is eligible to be appointed as a representative plaintiff for the class proceeding unless, in the opinion of the Court, it would be inappropriate in the circumstances.

(6) The Court may, where it considers it appropriate, appoint as a representative plaintiff a non-profit organization that is incorporated. ... 5(1) In order for a proceeding to be certified as a class proceeding on an application made under

section 2 or 3, the Court must be satisfied as to each of the following: (

a) the pleadings disclose a cause of action; (

b) there is an identifiable class of 2 or more persons; (

c) the claims of the prospective class members raise a common issue, whether or not the common issue predominates over issues affecting only individual prospective class members; (

d) a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues; (

e) there is a person eligible to be appointed as a representative plaintiff who, in the opinion of the Court,

(

i) will fairly and adequately represent the interests of the class, (ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and (iii) does not have, in respect of the common issues, an interest that is in conflict with the interests of other prospective class members. ... 7(1) Notwithstanding

section 5, if a class includes a subclass whose members have claims that raise common issues not shared by all the class members so that, in the opinion of the Court, the protection of the interests of the prospective subclass members requires that they be represented separately, the Court may, in addition to appointing the representative plaintiff for the class, appoint from among the prospective subclass members a representative plaintiff for the subclass who, in the opinion of the Court, (

a) will fairly and adequately represent the interests of the subclass, (

b) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the subclass and of notifying subclass members of the proceeding, and (

c) does not have, in respect of the common issues for the subclass, an interest that is in conflict with the interests of other prospective subclass members.

(2) Where the Court is satisfied that more than one subclass meets the criteria under subsection (1) for a representative plaintiff to be appointed, the Court may appoint a representative plaintiff for each subclass.

(3) If a class is made up of persons who are residents of Alberta and persons who are not residents of Alberta, that class is to be divided into resident and non-resident subclasses.

(4) Notwithstanding subsection (1), the Court may certify a person who is not a member of the subclass as the representative plaintiff for the subclass in the class proceeding but may do so only if, in the opinion of the Court, to do so will avoid a substantial injustice to the subclass. (5) Section 2(5) and (6) apply to the appointment of a representative plaintiff for a subclass under this section. IV. Rule 1.2 Application A. Background [ 70 ] In anticipation of the New Rules coming into force on November 1, 2010, Mr.

Lee wrote to counsel for the Crown as follows: The New Rules of Court will be in force in less than 10 days. Under the new Rules of Court lawyers have an obligation to act in a manner

to achieve the purposes of the new Rules. In particular, I make reference to Rule 1.2(2) which refers to identifying the real issue in dispute, facilitating quick resolution at the least expense, and encouraging parties to resolve the claims, open and honest communication between lawyers. We would like to identify the real issues in dispute so that the case can proceed efficiently. With this in mind, we have the following questions for the Defendant: Procedural Issues 1.

What does the Defendant believe is the best procedure for resolving the issue of whether a child in care who was entitled to have a service plan filed, but did not have a service plan filed be resolved? Why is a class action not the best procedure? 2. What does the Defendant believe is the best procedure for resolving the issue of whether a parent of a child in care who was entitled to have a service plan filed, but did not have a service plan filed be resolved? Why is a class action not the best procedure? 3.

What does the Defendant believe is the best procedure for resolving the issue of whether a sibling of a child in care who was entitled to have a service plan tiled, but did not have a service plan filed be resolved? Why is a class action not the best procedure? 4. What is the best way to put a head on this action? 5. Is a representative plaintiff, that is not a class member, a workable option? If not, then why not? 6.

Is there a need for separate representative plaintiffs for each subclass of class members? (child who did not have a service plan filed, parent of child that did not have a service plan filed, sibling of child that did not have service plan filed, child that did not have an adequate service plan filed, parent of a child that did not have an adequate service plan filed, sibling of a child that did not have an adequate service plan filed, child that was under care under an invalid consent order/agreement, parent of a child that was under care under an invalid consent order/agreement, sibling of a child that was under care under an invalid consent order/agreement.) 7.

If multiple representative plaintiffs are needed, is the Government prepared to pay the fees for litigation representatives for each subclass? 8. Do the Defendants agree that there are many plaintiffs that have the same common legal issue? 9. If there are subclasses, such as children who did not have a service plan filed, children who did not have an adequate service plan filed and children who were in care under an invalid Order or agreement, does the Government believe that one class action would be the best way to deal with the issues or would 3 separate class actions be preferable? Why? 10.

Do the Defendants take the position that they do not have to work co-operatively with the Plaintiffs to identify the real issues in dispute and that the Defendants can just sit back and respond to motions brought by the Plaintiff? SUBSTANTIVE ISSUES 11. In the claim for children that did not have a service plan filed, are the only issues whether or not those children are entitled to

compensation and the amount of the compensation? Does the Defendant take the position that it is not an unlawful confinement and it is not a charter breach? 12. Do the Defendants agree that the issue of whether children who did not have an adequate service plan filed have a possible cause of action or do they believe that this claim ought to be struck. 13. Do the Defendants take the position that a child does have a possible claim when a TGO, TGA, PGO or PGA was obtained by obtaining consent from the parents that was not informed consent? Do the Defendants take the position that this claim should be struck? 14.

Are there any common issues that the Defendants are willing to certify in a class action? If you want the Plaintiffs to clarify anything, please let me know and when I have a client capable of giving me instructions to clarify those issues, I will let you know their reply. If the Defendant does not wish to work collaboratively towards clearing up the issues, then I will seek instructions to make an application under Rule 1.2 (3). [ 71 ] Mr. Barber, on behalf of the Crown, responded: At this stage of the proceeding it is not possible to address the questions you pose. In particular: 1.

You have admitted that the Statement of Claim needs to be amended, but we do not have your amended claim; 2. You have admitted that the Plaintiffs need to be changed, but we do not know yet who the Plaintiffs will be; and 3. We do not have your motion for certification in this action, so we do not know the proposed scope of, or evidence in support of, class certification. It is not possible to discuss the issues in dispute until the Plaintiffs settle on the matters the Plaintiffs will put in issue. This will not occur until these three steps are complete.

Further, we do not agree that New Rule 1.2(3) implies that the Plaintiff can bring an application at the outset of the litigation to compel answers to the types of questions you pose, particularly in the absence of the documentation outlined above. [ 72 ] In essence, Mr. Lee appears to be seeking agreement from the Crown that: (

a) There be a single class action; (

b) Ms. Lightning be appointed as the representative plaintiff; (

c) Ms. Lightning should be paid for serving as the representative plaintiff; (

d) There has been unlawful confinement of the children, charter breaches affecting the children, their parents, guardians and siblings; and (

e) The only remaining issue is compensation for the class members.

[ 73 ] It is fair to characterize the Crown’s response as non-responsive. B. Can an Application be Made Under Rule 1.2? [ 74 ] The threshold issue is whether a stand-alone application can be made under Rule 1.2(3). Rule 1.2 states the following: Purpose and intention of these rules 1.2

(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost-effective way.

(2) In particular, these rules are intended to be used (

a) to identify the real issues in dispute, (

b) to facilitate the quickest means of resolving a claim at the least expense, (

c) to encourage the parties to resolve the claim themselves, by agreement, with or without assistance, as early in the process as practicable, (

d) to oblige the parties to communicate honestly, openly and in a timely way, and (

e) to provide an effective, efficient and credible system of remedies and sanctions to enforce these rules and orders and judgments.

(3) To achieve the purpose and intention of these rules the parties must, jointly and individually during an action, (

a) identify or make an application to identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense, (

b) periodically evaluate dispute resolution process alternatives to a full trial, with or without assistance from the Court, (

c) refrain from filing applications or taking proceedings that do not further the purpose and intention of these rules, and (

d) when using publicly funded Court resources, use them effectively.

(4) The intention of these rules is that the Court, when exercising a discretion to grant a remedy or impose a sanction, will grant or impose a remedy or sanction proportional to the reason for granting or imposing it.

[ 75 ] Rule 1.2 is clearly intended to guide the

interpretation of the New Rules and might be described as the New Rules’ guiding principles. Any application for relief under a Rule may bring Rule 1.2 into play, which will influence any

interpretation issues. Rule 1.2 may be described as the lens through which all Rules must be interpreted. I expect that where there are competing

interpretations, the

interpretation closest to the intentions expressed in Rule 1 will prevail. However, there are competing interests identified in Rule 1.2: a fair and just result does not automatically equate with a timely and cost-effective one. Our system has long entitled a defendant to know the case it has to meet, which often requires extensive discovery that is both time-consuming and expensive. However, limiting discovery in the interests of timeliness and cost-effectiveness may be viewed as impairing a party’s entitlement to a fair and just result. [ 76 ] Litigation remains an adversarial process.

The New Rules still contain requirements with respect to pleadings and allows a defendant the opportunity to apply to dismiss an action based on deficient pleadings: Rule 3.68. A defendant is not required to assist the plaintiff in making its case against the defendant.

While the New Rules contemplate greater cooperation among counsel in moving an action along towards dispute resolution and then to trial if necessary, the New Rules do not contemplate that the parties must agree to short-circuit or jump over processes to achieve a timely and cost-effective result. [ 77 ] The clear wording of the Rule itself contemplates an application being made to “identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense”. There is no timeframe set out in Rule 1.2.

Rule 1.2(3) would appear to make the existence of an action the only pre-condition to making an application, although in my view, it would be premature for an application to be made if the parties have not first made an effort among themselves to identify the issues in dispute and to determine the quickest way of resolving the dispute at the least expense. [ 78 ] Rule 1.2(3) contemplates that both substantive and procedural matters be addressed: the issues to be resolved presumably relate to the elements of the plaintiff’s claims and the defendant’s defences.

I would suggest that the days when the defendant could file a defence in the old form, namely that “the Defendant denies all allegations in the Statement of Claim and puts the Plaintiff to the strict proof thereof”, are over. Defendants will be required to disclose their position and state their defences sooner rather than later. But defendants are still entitled to defend actions against them vigorously and to maintain any and all defences that are not unreasonable or frivolous and can withstand a

summary judgment application. They are also entitled to insist that the plaintiff follow proper procedures and comply with the Rules of Court. [ 79 ] Mr. Lee has written to the Crown seeking their response to a number of procedural and substantive matters, specifically referencing Rule 1.2; the Crown’s response was essentially non-responsive. Thus, I conclude that there is no procedural bar to Mr. Lee’s application that prevents me from taking jurisdiction to consider his application. C. Grounds for Rule 1.2 Application [ 80 ] Mr. Lee’s Notice of Motion filed October 28, 2010, states the following grounds: 1.

The Defendants’ actions in this proposed class action have been inconsistent with the purpose and intent of the New Rules of Court; 2. The Defendants’ actions have related to procedural technicalities that have no bearing on the real issues in dispute; 3. The Defendants’ actions have the opposite effect of facilitating the quickest means of resolving the claim at the least expense; 4. The Defendants are not communicating honestly and openly. [ 81 ] The Crown disputes these grounds and takes particular exception to the fourth ground, namely that it have not been communicating honestly and openly.

1. Obligation to Communicate Honestly and Openly [ 82 ] At the application, Mr. Lee advised that the basis for the fourth ground is Mr. Barber’s October 28, 2010, response to Mr. Lee’s letter of October 22, 2010. Mr. Lee characterized Mr. Barber’s letter as disingenuous, particularly in the context of the pleadings fights both in this action that resulted in the L.C. Appeal , and in the C.H.S . litigation. Mr. Lee also points to the application to appoint a next friend for L.C. and E.M.P. as further evidence to support the fourth ground. In my view, Mr. Lee has overstepped the mark.

The phrase “honestly and openly” comes right out of Rule 1.2 and I accept that Mr. Lee did not intend to suggest that the Crown was acting or had acted dishonestly. “Disingenuous” connotes dishonesty at worst, and most charitably game playing. The New Rules were not needed to compel counsel to act honestly, and it is curious that the drafter considered it necessary to emphasize that long-standing ethical obligation in Rule 1.2. [ 83 ] In any event, there has been nothing in the Crown’s conduct in the related actions before me, and particularly in the T.W. Action, that could be remotely characterized as dishonest.

To describe Mr. Barber’s response as disingenuous and rely on that characterization in an application grounded in a lack of honesty is an exaggerated approach. The only basis for an allegation that the Crown has not dealt openly with the Plaintiffs might be that the Crown has not volunteered to provide the Plaintiffs with the identities of people affected by T.S. #1 . However, the Crown cites privacy concerns and has been successful in resisting an application to produce that information in the C.H.S. litigation. A failure to respond to his letter of October 22 nd in a manner satisfactory to Mr.

Lee is not a lack of openness. These grounds are not made out, and frankly should not have been raised. 2. Obligation to Act [ 84 ] The first ground is answered by reason that the Crown had no obligation to act in accordance with the purpose and intent of the New Rules until November 1, 2010. It is clear that the Crown has not cooperated with Mr. Lee to identify issues and find a quick and inexpensive way of resolving the matter. Over the last number of years, the Crown has taken steps to strike out portions of the various Statements of Claim in the L.C. Action, the T.W.

Action and in the C.H.S. litigation, all of which have been extensively case managed. These applications to strike were made on recognized grounds, namely that the Statements of Claim did not disclose a cause of action, or that there were defects in the pleadings. By making these applications, the Crown has successfully limited the claims which might proceed. The Crown has also successfully resisted producing the names of potential class action members to Mr.

Lee, resisted consenting to class action proceedings, and more recently resisted next friend applications for L.C. and E.M.P., as well as resisting payment of advanced costs. None of these Crown responses has been frivolous. More importantly, each of the steps taken by the Crown could have been taken if the New Rules had been in effect when the steps were actually taken. I do not see that the first ground has been made out. 3. Procedural Technicalities [ 85 ] With respect to the second ground, Mr.

Lee takes the position that the Crown’s actions have related to “procedural technicalities” that have no bearing on the real issues in dispute. He is correct that little over the last number of years has related to the substantive issues of the Plaintiffs’ claims or the Crown’s defences to them. However, technical and procedural issues are unavoidable in class proceedings. [ 86 ] In any event, the “procedural technicalities” Mr. Lee refers to relate to who the plaintiffs are and what claims they are actually advancing, particularly having regard to the recent Court of Appeal decisions. It is Mr.

Lee that keeps changing the plaintiffs and the claims, not the Crown. The C.H.S . litigation started as the flagship case for the intended class action, with a representative plaintiff acting for herself and as next friend for her three children. The facts as alleged fit within circumstances set out in T.S. #1 : children were apprehended, TGOs were granted during the identified time period, no case plans were filed and the children were not returned to their families. The Crown succeeded in striking portions of the Statement of Claim in the C.H.S. litigation. Mr.

Lee was partly successful on appeal but still had to remove some portions of the Statement of Claim and revise other portions relating to constitutional claims and misfeasance of public office. These amendments have not been yet been completed. However, after January, 2010, the C.H.S. litigation seemed unlikely to proceed, so the T.W. Action was identified as the intended class proceeding. The Statement of Claim in the T.W.

Action, which had yet to be amended and were similar to the claims made in the C.H.S. litigation, was also facing an application by the Crown to strike the pleadings. [ 87 ] As noted above, it is clear that there is disagreement between Mr. Lee and the Crown as to what claims were permitted by the Court of Appeal to proceed. This issue will be determined once Mr. Lee revises the pleadings and will depend on whether the Crown takes issue with the revised Statement of Claim.

[ 88 ] But additionally, Mr. Lee sought to add new claims after January, 2010: those relating to inadequate care plans (following Ouellette J.’s decision in M.B. ); and those relating to consent PGOs or custody agreements where the validity of the consent is in question (following the allegations made by B.M.). Then the T.W. Action fell by the wayside, partly because T.W.’s children became subject to PGOs, and partly because of T.W.’s lack of cooperation with Mr. Lee. By this stage, Mr.

Lee became focused on obtaining an Okanagan order for advance costs, so that he could be compensated for his past and ongoing work in the litigation. Ms. Kellett then entered the picture as a potential next friend for T.W., and the search for new child plaintiffs began. Through this search, E.M.P. was identified as a suitable child plaintiff, but her mother, L.C., declined to cooperate or participate in the recent proceedings, leaving E.M.P. without an effective next friend and L.C.’s personal claim in doubt. Then Ms. Kellett stepped aside and Ms.

Lightning came forward to act as next friend for both E.M.P. and L.C. [ 89 ] There may be plaintiffs out there who have valid claims against the Crown arising out of T.S. #1 , but no one wants to step forward and be plaintiff in an intended class action. Ms. Lighting is prepared to act as next friend for the appropriate plaintiffs and as representative plaintiff for the class, so long as she has no liability for costs and receives financial compensation for her trouble. Mr. Lee is prepared to continue to act on behalf of the class or classes, taking instructions from Ms.

Lightning, as long as he gets advance costs to pursue certification of the class proceeding. [ 90 ] As noted above, I can understand Mr. Lee’s frustration. Many of the occurrences that have interfered with the progress of the proposed class action have been outside his control: for example, C.H.S.’s apparent change of heart, PGOs for some of the children, and the recent inability to get instructions from L.C. or T.W.

Nevertheless, none of this can be attributed to the Crown. [ 91 ] However, the Rules of Court do not trump specific provisions in legislation such as s. 2.1 of the Class Proceedings Act , which requires: 2(1) One member of a class of persons may commence a proceeding in the Court on behalf of the members of that class. and further, in s. 5: 5(1) In order for a proceeding to be certified as a class proceeding on an application made under

section 2 or 3, the Court must be satisfied as to each of the following: (

a) the pleadings disclose a cause of action... [ 92 ] So far, there is neither a plaintiff nor pleadings that correctly disclose the permitted causes of action. These are not mere “procedural technicalities”. In my view, the Crown is entitled to know who the plaintiff is and what the plaintiff’s claims are. [ 93 ] There are specific requirements to be met before an application for certification can be made. Rule 1.2 cannot be interpreted in a manner that allows the court to ignore or jump over specific provisions in provincial legislation.

The Class Proceedings Act requires that there be a plaintiff who is part of the class and that there be a Statement of Claim that discloses a cause of action against the Defendant. The Crown’s steps to date have been aimed at ensuring that these requirements have been met before it faces a certification application. There has been nothing untoward or inappropriate in its actions to date. The second ground is not made out. 4. Obligation to Facilitate [ 94 ] The third ground suggests that the Crown has a duty to facilitate the quickest means of resolving the claims at the least expense.

The New Rules still contemplate that there will be trials; so long as there are reasonable causes of action or reasonable defenses, the parties are still entitled to their day in court. They are also entitled to reasonable questioning and to the benefit of other aspects of the Rules such as disclosure of expert reports and independent medical examinations. Any process or procedure involves cost and takes time. But Rule 1.2 imposes on top of all of this a duty to “identify the real issues in dispute and facilitate the quickest means of resolving the claim at the least expense on the parties”.

If they do not agree, an application can, and probably should, be made to the court for directions and advice.

[ 95 ] Mr. Lee was entitled to write to the Crown to see if there were things they could agree upon in order to facilitate resolving certain issues. He was certainly entitled to enquire as to whether the Crown might agree to a class action with a single representative plaintiff with advance costs for the representative plaintiff and himself as counsel. In light of the obligations on the parties to manage their own litigation and to comply with the principles in Rule 1.2, he was entitled to a meaningful response.

A meaningful response does not mean total agreement, but it does mean addressing each of the matters raised in an open and forthright way. D. Specific Questions [ 96 ] With respect to the specific questions raised by Mr. Lee in his letter, and having regard to the state of the pleadings, the uncertainty with respect to the Plaintiffs and unresolved issues regarding the nature of the claims to be advanced, it is premature to address questions 1-3.

Those should be addressed once an appropriate plaintiff has been identified and the Statement of Claim has been revised to properly advance the causes of action in an intended class proceeding. [ 97 ] With respect to question 4, I do not consider that it is appropriate for the Plaintiffs’ counsel to require the Defendant to give advice as to who the Plaintiff might be, or who an appropriate next friend might be. It is up to Mr.

Lee to find and propose an appropriate Plaintiff. [ 98 ] If the purpose of question 5 is to determine whether the Crown is prepared to respond to a Statement of Claim where the plaintiff is not herself a member of any of the proposed classes, then this question should be answered. While the question raises issues under s. 2 and 5 of the Class Proceedings Act , Mr. Lee is entitled to ask and to receive a meaningful response. [ 99 ] Similarly, with respect to questions 6 and 9, a “no” answer may prevent a search for nine or 12 plaintiffs and a similar number of representative plaintiffs.

Depending on the answer, there may either be a search for more plaintiffs or a court application to determine the scope of a single plaintiff’s claims on behalf of prospective class members who have significant differences in their claims from the plaintiff. Mr. Lee is entitled to a meaningful response to these questions. [ 100 ] For question 7, a meaningful response is required.

Having regard to the Crown’s position on L.C.’s and E.M.P.’s application for advance costs, the answer is not likely in doubt, but it is always open to a party to enquire of the other as to whether it is prepared to change its position. [ 101 ] Question 8 would be a fair question if there was clarity as to the “legal issue” mentioned. The information necessary to respond is to some extent in the Crown’s hands, but the Crown does not have to identify legal issues or claims against it that it believes may be shared by a number of people.

To some extent, this has been answered in a general way by the Crown’s acknowlegement that there appear to be at least 600 children for whom TGO’s were granted and no timely care plans were filed. This being said, it is always open to a party to serve a notice to admit facts on the other party: Rule 6.37. Seeking admissions on legal issues is a different matter and question 8 involves issues of both fact and law. The question need not be answered as presently framed. [ 102 ] Question 10 has two parts.

The first part relating to identifying issues is answered by my decision that the Crown must provide meaningful responses to appropriate requests. As to the second part, a party need not disclose its litigation strategy to the other side. There is nothing in the new Rules to suggest that a defendant may not adopt a responsive position, so long as a defendant adheres to litigation plans and case management directives, complies with the Rules, and does not unduly delay an action. The word “facilitate” in Rule 1.2(3)(

a) should be given its ordinary meaning, namely “to render easier; to promote, help forward; to lessen the labour of, assist (a person)”: Shorter Oxford Dictionary, Oxford, 3 rd Edition. Apart from Rule 1.2(3)(

a) as an interpretative guideline, this provision must be read in the context of

Part 4: Managing Litigation and in particular Rule 4.1, which states that: 4.1 The parties are responsible for managing their dispute and for planning its resolution in a timely and cost effective way. [ 103 ] Scheduling and moving the matter along is no longer primarily the obligation of the plaintiff. The New Rules recognize that litigation is not just the plaintiff’s problem, but a joint problem that needs to be fairly and justly resolved in a timely and cost-effective

way: Rule 1.2(1). Defendants must now shoulder some of the responsibility for meeting those objectives, and a totally responsive mode is no longer appropriate. However, that does not mean that a defendant has to forego or limit any of the steps or processes it is entitled to take under the Rules. As noted above, the parties are still entitled to their day in court if there are reasonable issues to be tried. [ 104 ] Here, the Crown has been compliant with case management orders and directives.

While it has brought a number of motions, those motions have met with some success in defining the issues; most recently, it was successful in limiting the use of affidavits from other actions in support of the mini- Okanagan application, and in obtaining an order that L.C. be subject to an independent medical exam and that her medical records be produced. [ 105 ] Accordingly, there is no basis in the history of these matters to date to require any response to question 10. [ 106 ] As to questions 11-13, these might be seen as enquiries as to what the Crown might plead by way of its Statement of Defence.

In some actions, it may be premature to require a response to inquiries like this before a defence has been filed. However, the Crown has not filed a defence in regard to the matters raised in questions 11-13 and may not be required to do so until after a decision on certification has been made in the future. I do not think it is improper or unreasonable for Mr. Lee to seek information before the certification application as to which matters the Crown intends to contest. A meaningful response here may well assist Mr. Lee as to the necessity of certain applications or other steps.

The Crown should provide meaningful responses to these questions. [ 107 ] With respect to question 14, I think there should be more description of the “common issues” unless the Crown has certain issues that it wishes to pursue by way of class proceedings. Defendants can seek class proceedings as well as plaintiffs. As to the Plaintiffs’ issues, there needs to be better definition before the Crown is required to provide a response. V.

Result [ 108 ] Recognizing that Rule 12.4(3) requires that intended class proceedings be in case management unless the Chief Justice decides otherwise, the question becomes what to do with the responses. The objective of case management is to assist the parties with the management of their litigation. Meaningful answers by the Crown to the questions I have directed to be answered will inform me as case manager and the parties as to what steps are likely necessary in closing pleadings and moving the matter to a certification application. I think that is the intent of Rule 1.2(3).

The parties should exchange information that will assist in the design of a process that will address the real issues in a fair way. [ 109 ] In my view, a stand-alone application under Rule 1.2(3) is intended to facilitate creating an appropriate task list and moving the timeline towards resolution.

It is not intended to be a punitive measure and is aimed at getting litigation moving when it is bogged down. [ 110 ] At this stage, the litigation is to some extent in abeyance, as the parties are waiting for my decision regarding E.M.P.’s next friend and advance costs, for L.C. to comply with the directions given regarding medical records, and ultimately for L.C.’s next friend status to be resolved. That does not mean that the Crown should not begin work on its reply to Mr. Lee’s October 22 nd letter. Absent extenuating circumstances, I would expect the Crown to provide its response by January 28, 2011.

This will allow tasks and timelines to be effectively addressed at the next case management conference, following issuance of my decisions on the outstanding matters. [ 111 ] Costs of this application should be addressed at the next case management meeting. Heard on the 09 th day of November, 2010. Dated at the City of Edmonton, Alberta this 6th day of January, 2011.

R.A. Graesser J.C.Q.B.A. Appearances: Robert P. Lee Old Strathcona Law Office for the Plaintiff Peter Barber and G. Allan Meikle, Q.C., Alberta Justice Civil Litigation, and Ward K. Branch, Branch McMaster for the Defendants Denise Lightning Proposed Next Friend for the Third Party