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 236

Court of Queen ’ s Bench of Alberta Citation: L.C. v. Alberta (Metis Settlements Child & Family Services, Region 10), 2011 ABQB 236 Date: 20110407 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 _______________________________________________________ Nature of Application [ 1 ] In my decision L.C. v. Alberta (Metis Settlements Child & Family Services, Region 10) , 2011 ABQB 42 , I directed the Public Trustee to retain and pay for a litigation representative for E.M.P. I followed what I considered to be the process described in Thomlinson v. Alberta (Child Services) , 2003 ABQB 308 and in V.B. v. Alberta (Minister of Children ’s Services) , 2004 ABQB 788 . [ 2 ] I also directed that the Public Trustee and Mr.

Lee on behalf of E.M.P. attempt to agree on a litigation representative, failing which I would appoint one. [ 3 ] Mr. Weir, on behalf of the Public Trustee, has applied under s. 6 of the Public Trustee Act , R.S.A. 2004, c. P-44.1 to rescind or vary those portions of my decision relating to the Public Trustee. Background [ 4 ] E.M.P. is a plaintiff in this action, presently represented by her mother, L.C. For various reasons, L.C. is unwilling or unable to continue to act as E.M.P.’s litigation representative. Mr.

Lee applied on her behalf to have Denise Lightning appointed as a compensated litigation representative, without liability for costs should there be any cost orders against E.M.P. [ 5 ] I concluded that E.M.P. required a litigation representative, but found that Ms. Lightning was in a potential conflict of interest.

The Public Trustee had been appointed as next friend for an infant plaintiff in Thomlinson and in V.B. , and I was told that the Public Trustee had appointed (and paid and indemnified) independent litigation representatives for several children subject to Permanent Guardianship Orders who have claims against the Alberta Government similar to E.M.P.’s claims.

I concluded that E.M.P. should be in no worse situation than children under PGO’s in regard to their claims against the Alberta Government, and thus made various orders involving the Public Trustee. [ 6 ] The Public Trustee was not represented on the previous application as no relief was sought against it in the various motions before me in October, 2010. [ 7 ] The matter came back to me partly because Mr.

Lee and the Public Trustee’s office have been unable to agree on a litigation representative for E.M.P., but also because the Public Trustee was concerned that a precedent had been set whereby the Court could order the Public Trustee to act as litigation representative for a child or person under a disability, including requiring the Public Trustee to retain, pay for and indemnify an independent litigation representative for a child or person under a disability where such person has a claim against the Alberta Government and the Public Trustee may be perceived to be in a conflict of interest. [ 8 ] Mr.

Weir referred me to s. 6 of the Public Trustee Act. It provides:

(1) The Public Trustee is under no duty to act in a capacity, perform a task or function or accept an appointment by reason only of being

empowered or authorized to do so.

(2) Subject to subsection (3), a court may appoint the Public Trustee to act in a capacity or to perform a task or function only if the Public Trustee consents to the appointment and to the terms of the appointment.

(3) If

an Act expressly authorizes a court to direct the Public Trustee to act in a particular capacity or to perform a particular function, the court may appoint the Public Trustee to act in the capacity or to perform the task or function only if the Public Trustee has been given a reasonable opportunity to make representations regarding the proposed appointment.

(4) The Public Trustee may apply to have the court rescind or vary the terms of an appointment made contrary to subsection (2) or (3), and on the application the court may either rescind the appointment or vary its terms in a manner to which the Public Trustee consents. [ 9 ] Mr.

Weir’s position on the present application was that while the Public Trustee is prepared to consent to playing a role in assisting with the selection of an appropriate litigation representative for E.M.P., it is not willing to pay for the services of the litigation representative or have the representative monitored by or report to it. [ 10 ] Essentially, the Public Trustee argues that I had no authority to direct the Public Trustee to act and I had no authority to order the Public Trustee to pay for the litigation representative’s services or to pay any advance costs under an Okanagan -type order for legal services provided to the litigation representative. [ 11 ] Mr.

Lee, on behalf of E.M.P. took no position on my jurisdiction in relation to the Public Trustee, but wanted to make sure that a litigation representative was still going to be appointed and paid for pursuant to my January decision. He also expressed concerns about the Public Trustee’s involvement in the selection process for a litigation representative, because of the appearance of conflict on the Public Trustee’s part. Analysis [ 12 ] Having reviewed s. 6 of the Public Trustee Act , which I did not consider in relation to my January decision, I find myself in agreement with Mr.

Weir’s submissions on the orders I made affecting the Public Trustee. [ 13 ] There is no Act authorizing the court to direct the Public Trustee to act in the fashion I did, so s. 6(3) is of no application.

Even if it were, no order should have been made without affording the Public Trustee the opportunity to make submissions regarding any such appointment. [ 14 ] In a situation like this where the Public Trustee is authorized to act, but not obliged to do so, the proper course would have been to have notified the Public Trustee of the application to allow him to appear and make representations, or to make any order affecting the Public Trustee subject to the Public Trustee consenting, or making submissions to the court as to any requested terms or conditions. [ 15 ] I am satisfied that no order affecting the Public Trustee in this matter should have been made that was not subject to the Public Trustee’s consent. [ 16 ] Further, I am satisfied that in situations where the Public Trustee is not a defendant, there is no jurisdiction to order that it pay for the services of an independent litigation representative, or for advance costs in favour of the plaintiff.

The Public Trustee may consent to either or both situations in appropriate circumstances, but there is no basis for either of these to be ordered over the Public Trustee’s objection. [ 17 ] The

summary in my January decision indicated that the litigation representative’s services and the advance costs were to be paid for by the Crown. However, the body of the decision suggests that it is the Public Trustee who should be paying for the litigation representative and the advance costs for counsel.

[ 18 ] The

summary accurately states what was in my jurisdiction to order, and to the extent the body of the decision indicates that it is the Public Trustee who is to pay, I am satisfied that was in error. [ 19 ] I hasten to add that the error was of my doing. The application before me was for Ms. Lightning’s appointment, and I directed the Public Trustee’s involvement on my own initiative.

There was no reason for counsel to consider involving the Public Trustee on the application, or bringing s. 6 to my attention. [ 20 ] When I determined that the Public Trustee’s involvement was appropriate, I should have re-convened the application on notice to the Public Trustee, or made any order subject to the Public Trustee’s consent and right to make submissions as to terms and conditions. [ 21 ] Despite Mr. Lee’s concerns about the appearance of conflict if the Public Trustee is involved in any way in the selection of the litigation representative, I do not share his concerns.

The role I directed for the Public Trustee was to be involved in the process, not to appoint the litigation representative himself. Under my earlier order, no litigation representative could be appointed without Mr. Lee’s agreement, or failing agreement, his ability to make representations to the Court as to a suitable litigation representative. Any concerns over conflicts on the part of the Public Trustee were balanced by Mr. Lee’s role in the process and the ultimate determination being made by the Court in the event of disagreement between Mr. Lee and the Public Trustee.

The Public Trustee has significant experience in the representation of children and familiarity with persons with skills in advising children and making decisions in the best interests of the child. [ 22 ] I am also of the view that in a situation such as this, it would be inappropriate to leave the appointment of a litigation representative to counsel for the child. Counsel is not a guardian and should not have sole power of appointment. The involvement of an independent person is necessary to ensure the representative will act in the best interests of the child, and not the best interests of appointing counsel.

Conclusion [ 23 ] The Public Trustee’s application under s. 6(4) of the Public Trustee Act is granted. The Public Trustee is not obliged to pay for a litigation representative for E.M.P., nor is it obliged to pay any advance costs for E.M.P.’s counsel. [ 24 ] My order is varied to request but not direct the Public Trustee’s involvement in the selection process for a litigation representative for E.M.P. [ 25 ] Mr. Weir has indicated that the Public Trustee has consented to assist in the selection process, so no further order is necessary. [ 26 ] There will be no costs for any party on this application.

Heard on the 30 th day of March, 2011 Dated at the City of Edmonton, Alberta this 6 th day of April, 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