P.L. v. Alberta, 2011 ABQB 215

Court of Queen ’ s Bench of Alberta Citation: P.L. v. Alberta, 2011 ABQB 215 Date: 20110331 Docket: 1003 09557 Registry: Edmonton Between: P.L. Plaintiff - and - Her Majesty the Queen In Right of Alberta, Thomas Svekla, Mona, the Public Trustee of Alberta and Others Defendants Corrected judgment: A corrigendum was issued on April 15, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. Corrected judgment: A corrigendum was issued on April 6, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. Restriction on Publication Identification Ban – See the Child Welfare Act ,

section 25 (as in force immediately before November 1, 2004). Except with the consent of the Court, no one may publish any report of a proceeding regarding a child under this Act that discloses the name or identifying information of the child or the child’s guardian. NOTE: This judgment is intended to comply with the restriction so that it may be published.

Restriction on Publication Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2. 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 . NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice R.A. Graesser _______________________________________________________ I.

Nature of Application [ 1 ] P.L. issued a statement of claim against Her Majesty the Queen in Right of Alberta, “Mona”, Thomas Svekla, The Public Trustee of Alberta and John Doe on June 8, 2010. It was served on the Defendants on November 18, 2010.

Plaintiff’s counsel refused to agree to an extension in time for the Government Defendants to file a Statement of Defence. [ 2 ] Because of the complex nature of the claim, and its similarity in some respects to actions against the Government which I am already case managing, I was appointed to case manage this action as a result of an application to the Associate Chief Justice for the appointment of a case manager. [ 3 ] At the first case management meeting, the Government Defendants sought an order relieving them from having to file a statement of defence to the claim, on the basis that the claim duplicates an existing class action which has been certified against the Public Trustee ( LaBonte v.

Alberta , Action No. 0403 12898), and a series of claims arising out of the Director’s failure to file care plans for children subject to temporary guardianship orders, with respect to which there is a pending class certification motion ( L.C. v. Alberta , Action No. 0703 10836, T.W. v. Alberta, C.H.S. v. Alberta ). [ 4 ] Paragraph 86 of the Statement of Claim states: The Plaintiff consents to staying her claims pursuant to paragraphs 71 - 74 (the claim against the Public Trustee) until the conclusion of the Class Proceedings in Labonte v. HMTQ .

II. Background [ 5 ] The claim arises out of an allegation that while P.L. was a foster child of Mona, she was sexually, physically and emotionally abused by Mona and Mr. Svekla, who was Mona’s commonlaw spouse at the time. [ 6 ] P.L. sues the Province for, amongst other things, failing to provide P.L. with adequate care and services. [ 7 ] The Statement of Claim includes allegations relating to the Province’s alleged failure to prepare, implement and file service plans with a view to reuniting children with their families.

John Doe is the Provincial employee responsible for P.L. while she was in Government care. [ 8 ] The Statement of Claim also includes a claim against the Public Trustee for failing to make a timely claim for P.L. under the Criminal Injuries Compensation Act, RSA 1980, C-33 , or the Victims of Crime Act, RSA 2000, c. V-3 . [ 9 ] The Government Defendants argue that the Plaintiff is likely to amend the Statement of Claim, including amendments to the style of cause; that there are issues which overlap L.C. v. Alberta and LaBonte v. Alberta . [ 10 ] In a letter to Mr.

Lee dated December 6, 2010, the Defendants describe three “problematic categories of pleadings”: 1. Pleadings which have already been struck out in other actions a disclosing no cause of action; 2. Pleadings which set out claims which are bing pursued in the certified LaBonte class proceedings 3. Pleadings which set out claims which are being pursued in a proposed class proceeding in T.W. and L.C. [ 11 ] The Government Defendants cite Boehringer Ingelheim (Canada) Ltd. v.

Englund , 2007 SKCA 62 , in support of their application. [ 12 ] In Boehringer , the defendants in an intended class proceeding sought a stay of the action on the basis that there were parallel proceedings involving the same parties and the same subject matter in Ontario. [ 13 ] The stay was sought on the basis that the commencement of identical proceedings in two jurisdictions was an abuse of process. [ 14 ] The Saskatchewan Court of Appeal held that the case law involving multiple proceedings in the same jurisdiction should apply to multiple proceedings in two or more jurisdictions (at para. 36). [ 15 ] Mr.

Lee’s argument, on behalf of P.L. is that P.L. has already agreed to stay the portions of her claim which are being dealt with in the LaBonte class proceeding, but she wishes to proceed with her own action against the Defendants for the harm suffered while in the care of Mona and Mr. Svekla. At this stage, P.L. does not want to be put to an election as to whether she will be part of the L.C. class proceeding, if it gets certified. As a result, she is entitled to require that the Defendants file a statement of defence and provide an affidavit of records. III. Analysis

[ 16 ] The only recognized basis for the Court to stay an action or grant an indefinite extension of time in which to file a defence is on the basis of the claim being brought within

Part 3 Division 5 of the New Rules of Court. The bases for such an order are set out in Rule 3.68(2) as follows:

(2) The conditions for the order are one or more of the following: (

a) the Court has no jurisdiction; (

b) a commencement document or pleading discloses no reasonable claim or defence to a claim; (

c) a commencement document or pleading is frivolous, irrelevant or improper; (

d) a commencement document or pleading constitutes an abuse of process; (

e) an irregularity in a commencement document or pleading is so prejudicial to the claim that it is sufficient to defeat the claim. [ 17 ] The only applicable provisions to P.L.’s claims are (

b) and (d), namely that the Statement of Claim does not disclose a reasonable claim (b), or that the claim constitutes an abuse of process (d). [ 18 ] The Government Defendants have the opportunity to apply to strike the Statement of Claim, or portions of it. They also have the ability to demand particulars under R. 3.61, although R. 3.61(4) is clear that a demand for particulars does not suspend the obligation to file a defence. [ 19 ] As to the overlap with the LaBonte class action, as conceded by the Plaintiff, the Government need not defend the claims described in paragraphs 71-74 of the Statement of Claim.

Additionally, the Government need not defend the allegations in paragraphs 35- 41, as those relate to the alleged failure to claim compensation on P.L.’s behalf. The failure to claim portions of the action are stayed. [ 20 ] As to allegations of abuse of process in relating to the overlap with the L.C. action, Boehringer is instructive. There, the Saskatchewan Court of Appeal held at paragraph 40: We would not suggest that it is always or necessarily an abuse of process for a plaintiff to launch claims against the same defendant, and arising out of the same subject matter, in more than one jurisdiction.

There will sometimes be entirely valid reasons for such an approach. See: Castel and Walker, Canadian Conflict of Laws , Vol. 1, 6 th ed. looseleaf (Markham, Ont.: LexisNexis Canada Inc, 2005) at para. 13.6. But where, as here, there is no suggestion that multiple claims serve any legitimate interest of the plaintiffs, the complexion of things changes. In such circumstances, the courts are being used in a manner which serves no proper purpose or which is vexatious or oppressive. [ 21 ] At para. 41, the Court of Appeal approved the test for abuse of process articulated by I.H.

Jacob in The Inherent Jurisdiction of the Court (1970), 23 Current Legal Problems 23: It is not easy to classify the manifold and diverse circumstances of abuse of process which may be dealt with by the

summary powers of the court under its inherent jurisdiction. Without attempting to be exhaustive, one may perhaps tentatively suggest that such abuses may fall within one or more of the following categories of proceedings: (

a) proceedings which involve a deception on the court, or are fictitious or constitute a mere sham; (

b) proceedings where the process of the court is not being fairly or honesty used but is employed for some ulterior or improper purpose or in an improper way; (

c) proceedings which are manifestly groundless or without foundation or which serve no useful purpose; (

d) multiple or successive proceedings which cause or are likely to cause improper vexation or oppression.

[ 22 ] On their analysis that the two actions were virtually identical, the Court of Appeal stayed the Saskatchewan action. [ 23 ] This is not a case where because of the complexity of the matter, or other circumstances, the Defendants seek more time to prepare a proper statement of defence, instead of simply filing a pro forma defence or general denial and amending it later.

The Defendants presumably seek a stay of any of the claims which overlap the L.C. intended class action until the certification application has been dealt with, and P.L. has decided whether to opt in or out, if the L.C. action is eventually certified. [ 24 ] On the Boehringer analysis, the Government Defendants have not made out a claim for an abuse of process. P.L. has not commenced any other claim. She has offered to stay the portions of her claim that overlap with the LaBonte class action, which she may become part of. There is no class action relating to her other complaints about Government conduct.

She should not be required to commit to opting in or out of a proposed class action. That is entirely speculative at this stage, as no one knows if there will be a class action, or what form it will take and what claims may be included.

In any event, the Government is vigorously resisting any class action involving the failure to prepare or file proper service plans in relation to children apprehended by the Director of Child Services. [ 25 ] In my view, the Government cannot resist a class proceeding and still maintain that all claims which might fall within a class proceeding that gets certified despite its objections and resistence, should be stayed.

The Government’s position in resisting class proceedings is presumable that all such claims should proceed on their own merits, and as individual actions because of the differences in treatment and damages. That is what P.L. wants to do. [ 26 ] Accordingly, there is no basis before me to stay her claim, or give the Government a lengthy extension in time in which to prepare and file its statement of defence. [ 27 ] A demand for particulars does not automatically result in a suspension in time to file a statement of defence.

An application to strike all or portions of the pleadings on the basis that they disclose no cause of action does not automatically result in a suspension in time to file a statement of defence. [ 28 ] Indeed, one often sees in a statement of defence an allegation that “the statement of claim discloses no cause of action against the defendant”. Applications to strike have been described in Stevenson & Cote as wasteful, or an exercise in improving your opponent’s pleadings. [1] [ 29 ] The Government’s suggestion that P.L. proceed only with her allegations of sexual assault by a known perpetrator.

In my view, that takes too narrow a view of P.L.’s claims. [ 30 ] As a result, the Government is obliged to file a statement of defence to the entire action, apart from the claim against the Public Trustee (paragraphs 71 - 74, and 35 - 41). [ 31 ] The Government is certainly entitled to move to strike portions of the Statement of Claim, if it chooses. It is entitled to serve a demand for particulars if it chooses.

But neither step entitles them to hold off filing a statement of defence. [ 32 ] While the court undoubtedly has a jurisdiction to extend the time for filing a statement of defence, the Government Defendants have not satisfied me that there are appropriate circumstances here to warrant that interference with the ordinary process of litigation. The New Rules stress fairness, justice, speed and economy. The former are frequently at odds with the latter. But unnecessary delay is generally the anathema to all of those good objectives.

There is no good reason here to delay the filing of a statement of defence, and the commencement of disclosure. [ 33 ] To the extent that the Statement of Claim is likely to be amended including the style of cause, if that relates to substituting a name for “John Doe” and adding “Mona’s” surname, those are likely to happen only after P.L. has some form of disclosure under

Part 5 of the Rules.

[ 34 ] I recognize that this is a complex matter. It would be more helpful in identifying the real issues to be determined if the Government Defendants are able to file a meaningful defence, rather than one which merely contains general denials. As a result, I consider it appropriate in the circumstances to require them to file and serve their defence by the close of business on April 29, 2011, which gives them more than four weeks from the date of this decision. [ 35 ] The claim makes broad allegations. It may be that the scope of disclosure of relevant and material records will take some time. It would be appropriate to deal with a

schedule for disclosure of records in the case management process. If the Government Defendants anticipate that they will need longer than the normal three months from service of their statement of defence, the matter should be addressed at a case management conference, with the Government Defendants providing a proposed

schedule for disclosure. IV. Costs [ 36 ] P.L. has been successful on this application. She is entitled to costs in the amount of $1500, being the

Schedule C amount for the size of this claim. Heard on the 08 th day of December, 2010. Dated at the City of Edmonton, Alberta this 31 st day of March, 2011. R.A. Graesser J.C.Q.B.A. Appearances: Robert P. Lee Strathcona Law for the Plaintiff Ward Branch, G. Alan Meikle, Q.C., Peter Barber Alberta Justice for the Defendants

_______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice R.A. Graesser _______________________________________________________ The original corrigendum has been corrected to “The name of the Plaintiff...” instead of “The name of the Defendant...”. _______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Mr. Justice R.A.

Graesser _______________________________________________________ The name of the Plaintiff has been replaced by initials in paragraph 1, due to the publication restrictions. [1] Stevenson & Cote, Alberta Civil Procedure Handbook , Edmonton, Alberta: Juriliber, 2010, 3-100-101