L.C., E.M.P. by Her Next Friend L.C., D.C. by His Next Friend L.C. v. C.C. by Her Next, 2011 ABQB 42

Court of Queen ’ s Bench of Alberta Citation: L.C. v. Alberta (Metis Settlements Child & Family Services, Region 10), 2011 ABQB 42 Date: 20110125 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 ] This decision follows a case management conference from October 19 - 22, 2010 which dealt with a number of applications in this proposed class action. The relevant background to this application has been set out in L.C. v. Alberta (Metis Settlements Child & Family Services, Region 10) , 2011 ABQB 12 . [ 2 ] This decision will deal with the following: 1. Appointment of a next friend (litigation representative) for E.M.P. (L.C.’s daughter); 2.

Appointment of a next friend (litigation representative) for L.C.; 3. Payment for next friend’s services as next friend/litigation representative; 4. Relieving next friend from liability for costs; and 5. Payment of counsel for services relating to regularizing pleadings (mini- Okanagan application). Background [ 3 ] L.C. commenced this lawsuit on her behalf and as next friend for her children E.M.P., D.C. and C.C. E.M.P. remains a minor, and is in her mother’s care. D.C. attained adulthood after this lawsuit was started, and died shortly thereafter.

The status of his estate’s continuing involvement in this lawsuit is uncertain. C.C. attained adulthood after this lawsuit was started. The status of her continuing involvement is unclear. [ 4 ] E.M.P. was apprehended by the Director of Child & Family Services under a Temporary Guardianship Order (“TGO”). It is alleged that the Director failed to file a service plan within the 30 days following the date of the TGO, rendering the TGO a nullity and her continued apprehension unlawful.

L.C. claimed damages on her own behalf, as well as on behalf of E.M.P. and her other two children. [ 5 ] Through a series of events chronicled in my decision in this matter, 2011 ABQB 12 , Mr. Lee advised that this action is now the intended action to be a proposed class action for a number of classes or subclasses of persons affected by invalid TGO’s. Until shortly before the application in October, 2010, this action had been stayed as another lawsuit was being put forward as the proposed class action.

When that other lawsuit fell away as the proposed class action, this action appeared to be the most appropriate, at least for the children who had been kept in government custody after their TGO’s had become a nullity, and for the parents or guardians of such children. [ 6 ] The application in October, 2010, proceeded under the old Rules of Court; hence the use of the old “next friend” terminology.

[7] This action has several impediments to proceeding: 1. L.C., for health or other reasons, is unwilling or unable to continue to act as next friend for her daughter E.M.P.; 2. L.C., for health or other reasons, is unwilling or unable to continue to instruct counsel and actively participate in the action; 3. No one has stepped forward to act as next friend for E.M.P. other than Denise Lightning, a lawyer, who is not related to E.M.P.and is essentially a stranger to her; 4.

Denise Lightning will only act as next friend for E.M.P. if she is compensated at her regular hourly rate for providing services forE.M.P. and so long as she is granted immunity from liability for costs in the action; 5. L.C.’s need for a next friend is unclear, and the application as it related to her was adjourned pending resolution of medicalissues; 6. Mr. Lee, as counsel, advises that he is unwilling to continue to act as counsel in this action unless he is provided with advancecosts, following the principles in British Columbia (Minister of Forests) v.

Okanagan Indian Band, 2003 SCC 71 and Little SistersBook and Art Emporium v.Canada (Commissioner of Customs and Revenue), 2007 SCC 2 , [2007] 1 S.C.R. 38. [8] Mr. Lee advised in December, 2010 that Denise Lightning was no longer seeking to be appointed next friend for L.C. as L.C.had granted Ms. Lightning a power of attorney to deal with this action for her. The position taken by Mr. Lee on the application was thatL.C. was unable to deal with the stresses of the litigation either for herself or for her daughter E.M.P., so a next friend was necessary forboth of them. Mr.

Lee’s position on the application was that there was a different standard of incapacity for the appointment of a nextfriend from the standard for the appointment of a guardian or trustee under the Adult Guardianship and Trusteeship Act, S.A. 2008 c. A-4.2. [9] I permitted a psychologist, Les Block, to testify over the objections of the Crown, but I adjourned the cross-examination andMs. Lightning’s application for appointment as next friend for L.C. so that Mr. Block could produce his file and L.C. could producerelevant medical records.

L.C. failed to do either of those things within the time ordered, and I was advised at a case managementconference on December 8, 2010 that the application for the appointment of a next friend for L.C. was being abandoned because of Ms.Lightning being granted a power of attorney for L.C. [10] The Crown has asked to see the power of attorney and the details of the arrangements for Ms. Lightning, but those have yet tobe produced. [11] Mr.

Lee’s position at this stage is that L.C. lacks the capacity to instruct counsel and be directly involved in the litigationeither for herself or for E.M.P., but that she has the necessary mental capacity to appoint an attorney. Present Positions of Parties E.M.P. [12] L.C. still wishes to proceed with the appointment of Ms. Lightning as next friend for E.M.P., an order requiring the Crown topay Ms. Lightning for those services, an order exempting Ms. Lightning from liability for costs for E.M.P., and advance costs so that Mr.Lee can amend the pleadings in this action and ready it for a class certification action.

Crown [13] The Crown seeks dismissal of all outstanding applications.

[ 14 ] As to the appointment of Ms. Lightning as next friend for E.M.P., the Crown argues that if L.C. is competent to grant a power of attorney, she is competent to continue to act as next friend for E.M.P. A lack of competence cannot be presumed, because there is no evidence from her as to her incapacity or unwillingness to act.

The Crown cites C.H.S. v Alberta (Director of Child Welfare) , 2008 ABQB 620 , where Thomas J. refused to appoint a stranger as next friend for C.H.S.’s children because there was no evidence from C.H.S. that C.H.S. was unable or unwilling to act as next friend. [ 15 ] At para. 22 of that decision, Thomas J. stated: A more important factor in this case is that the Plaintiff children already have a next friend, namely their mother C.H.S.

It is of significance to me that no affidavit has been sworn by C.H.S. to indicate either that she is no longer willing to act as the next friend of her children, or that she consents to Ms. Venne being substituted as the next friend for her children. This is troubling, particularly given the statements by the counsel for the Plaintiffs over the course of various case management meetings indicating his difficulties in communicating with and receiving instructions from C.H.S. who seems reluctant to continue to pursue the claims in this Action.

It may be that C.H.S. no longer wishes to act as the next friend for her children, but would rather prefer someone else to represent their interests in this lawsuit. However, there is very little, if any, evidence before me to indicate that this is the case. In any event, I decline to make such a finding. In the absence of a proper evidentiary basis to explain why C.H.S. can no longer act as the next friend for her children, I am not able to conclude in these circumstances that it would be appropriate to appoint Ms.

Venne as the replacement next friend of the children of C.H.S. [ 16 ] The Crown submits that there are great similarities between C.H.S.’s circumstances and L.C.’s circumstances.

As such, the Crown submits that L.C. should continue to be E.M.P.’s next friend. [ 17 ] The Crown argues that L.C.’s refusal with my orders to produce Les Block’s files and her relevant medical records should disentitle her to any presumption that she lacks the ability to act as next friend for E.M.P. [ 18 ] The Crown maintains its position that neither L.C. nor E.M.P. has established proper circumstances for any advance costs order under the Okanagan principles. Analysis 1. Next friend for E.M.P. [ 19 ] Similar to the situation in C.H.S. , Mr.

Lee has taken the position in this action since the early fall of 2010 that L.C. was not able to provide him with instructions in this action, either on her behalf or on E.M.P.’s behalf. That inability has been described as an emotional problem dealing with the lawsuit, and an ongoing fear of the government, especially in relation to her continued custody of E.M.P. She has not provided any affidavit evidence as to her inability or unwillingness to act as next friend for E.M.P.

No documentation resigning as next friend or seeking a replacement has been filed by her. [ 20 ] Those matters have been dealt with in representations by her counsel, Mr. Lee, as well as in the affidavit of Denise Lightning filed with respect to her application to be appointed as next friend. The Crown cross-examined Ms. Lightning on her affidavit before the October, 2010 applications were heard. The Court also heard evidence from Les Block on the point of Ms.

Lightning’s difficulties in dealing with the litigation, although that evidence was not tested by cross-examination, nor were his or other medical records of L.C. produced to the Crown. [ 21 ] There is no requirement under old Rule 58 or new Rules 2.11(

a) or 2.14(1) that the next friend be a parent or guardian of child. New Rule 2.14(1) dealing with litigation representatives speaks of an “interested person”, although that term is not defined in the Rules of Court. It is a defined term in the new Adult Guardianship and Trustee Act (not necessarily a relative or friend) but I am not aware of any definition of an interested person as it relates to an infant. I see no reason, however, to interpret the words differently for the purposes of the Rules of Court than under the Adult Guardianship and Trustee Act.

There was nothing in the old Rules of Court dealing with the resignation or replacement of an existing next friend or litigation representative.

[22] It is unclear as to the status of the defendant in an action to object to someone’s appointment or replacement as a next friend orlitigation representative. Because the next friend/litigation representative is generally responsible for the costs of the action, a defendantmight in appropriate circumstances seek security for costs. A defendant might object to the appointment of a next friend/litigationrepresentative who has been declared to be a vexatious litigator under the Judicature Act, R.S.A. 2000, c.

J-2, or where the nextfriend/litigation representative might be in a conflict of interest vis-a-vis the defendant. But otherwise, it is not clear to me that it is any ofthe defendant’s business who the next friend is. [23] Where the next friend is not the parent or guardian of the child, the parent or guardian certainly has the status to object.

Inappropriate cases, the Public Trustee could step in (or be appointed by the Court), and as noted by Thomas J. in C.H.S. (supra) at para.29, the Court’s parens patriae power allows the Court to protect the interests of those who cannot protect themselves. [24] I do not read C.H.S. as requiring that there be a formal resignation signed by the existing next friend, or that the parent orguardian or existing next friend, before a new next friend can be appointed. There may be circumstances where the replacement of anexisting next friend is sought, over the objections of the existing next friend.

Or the existing next friend may have become disabled, ordisappeared, or otherwise unable to carry on. That is the situation argued here. [25] What Thomas J. says in C.H.S. is that there needs to be a proper evidentiary foundation to make an order. This is aninterlocutory order in the action, so hearsay is permissible. There does not appear to have been any evidence at all in C.H.S. as to hercapacity or status. [26] I am satisfied that the representations of Mr. Lee are fully supported by the affidavit evidence of Ms.

Lightning: that E.M.P. isin need of a next friend for the purposes of this litigation, and that L.C., for whatever reason, is unable and unwilling to act. Ms.Lightning does not need L.C.’s consent to act as next friend/litigation representative for E.M.P. In the absence of an objection from L.C.,Ms. Lightning as an “interested person” can step forward. I did not consider the incomplete testimony of Mr. Block on this issue as it wasnot necessary to have medical evidence for the purpose of the application as it relates to E.M.P. [27] Of course, Ms.

Lightning has not opted to self-appoint under old Rule 58 or new Rule 2.14, as she wants to be paid and shewants to be exempted from liability for costs. The only way those things can happen is if they are ordered by the Court. [28] In R. v. W.A., (ABQB), Ritter J. (as he then was) dealt with the background of the appointment of nextfriends. In that case, he concluded that the plaintiff needed a next friend, but determined that the proposed next friend was notappropriate.

He ruled that either the Public Trustee could appoint an independent next friend, or he would select one from namesprovided to him. [29] Ritter J. subsequently ordered that the next friend appointed by him be relieved from liability of costs and that the nextfriend’s fees be paid by the Defendant Government. [30] A similar order was made by Macklin J. in T.W. v. Her Majesty the Queen, Alberta Queen’s Bench Action Number 020319700. [31] In Thomlinson v. Alberta (Child Services), 2003 ABQB 308, Brooker J. held that the old rules permitted a stranger to beappointed as next friend for a child.

After reviewing the history of the appointment of next friends, Brooker J. held at paras. 107 and 108that where the parent or guardian does not consent to act as next friend, it is open for the court to appoint the Public Trustee. But wherethe Public Trustee declines to act (such as because of a conflict of interest), a willing stranger could be appointed.

He stated at para. 109that such an appointment would be appropriate in situations in which “an infant’s interests might not otherwise be represented.” [32] Thomlinson is also some authority that the Court has the power to relieve a next friend other than the Public Trustee fromliability for costs (at para. 119) although Brooker J. declined to do so in that case.

[ 33 ] In V.B. v. Alberta (Minister of Children’s Services) , 2004 ABQB 788 , Slatter J. (as he then was) considered applications for the appointment of next friends for three child plaintiffs who were under PGOs. Slatter J. agreed that the children’s mother could not commence the action as the Public Trustee is the children’s sole trustee because of the PGOs. [ 34 ] In such circumstances, he held at para. 29: “In

summary, the procedure to be followed in the case of a child in care who potentially has a cause of action against someone should be roughly as follows: (

a) A person who discovers information suggesting that a child in care has a cause of action has a moral obligation, and in some cases a legal obligation, to bring that information to the attention of the Public Trustee and a director of Child Welfare. (

b) If the information has an air of reality to it, the Public Trustee has an obligation under the Act to: (

i) investigate the claim to see if it has sufficient merit, and is of sufficient value, to justify proceedings on behalf of the child, and (ii) ascertain whether the prosecution of the claim would be in the best interests of the child. This inquiry could be made in consultation with the director, and might be done by the Public Trustee's office or outside counsel, as the circumstance require. (

c) If the action is found to be of merit, and its prosecution in the best interests of the child, then the Public Trustee has a duty to see that it is prosecuted in a reasonable way: (

i) in most cases the Public Trustee would commence proceedings himself, as the trustee of the child. (ii) it is unclear whether in some cases the Public Trustee might seek and nominate a third party to sue as next friend of the child, for example where the Public Trustee thought that the action presented a conflict of interest that could not be handled adequately by internal controls. In such cases the Public Trustee would in any event continue to play a role in monitoring the litigation and the next friend. (

d) The Public Trustee as trustee, or the next friend, would then be required to retain and instruct counsel to prosecute the action. (

e) At any stage of the proceedings the Public Trustee or the next friend could consult with the child and other family members, but the conduct of the litigation is not under the control of the child or the family. (

f) The Court retains a supervisory jurisdiction over the whole process. The Public Trustee or the next friend could apply for advice and directions where appropriate. Any interested person could apply to the Court for a review of decisions made during the conduct of the litigation, to ensure that the best interests of the child are paramount.” [ 35 ] Here, there is no PGO and there is no trustee for E.M.P. Her mother, L.C. is her sole guardian. In this case, it is not necessary to involve the Public Trustee if someone else who is suitable is willing to act.

That is especially important here as the Government (for whom the Public Trustee works) is the main defendant (similar to the situation in W.A. )

[36] I need not deal with the situation under the Rules of Court where an existing next friend wishes to withdraw and be replacedand there is another willing next friend ready to step up. That might well be done under the new Rules of Court without Court order, evenas to the amendment of pleadings, so long as pleadings have not closed. Here, Ms. Lightning seeks her appointment by way of Courtorder, and on terms. When the application was made in October, such an appointment could have been made by Court order, followingThomlinson.

Starting November 1, 2010, under Rule 2.15, the Court clearly has the power to appoint a litigation representative incircumstances where there a party requiring a litigation representative does not have one. [37] In the result, the Court had the power to appoint a stranger as next friend for E.M.P. before November 1, 2010, and certainlyhas the power to do so thereafter. 2. Is Ms. Lightning a Suitable Next Friend for E.M.P.? [38] The Crown cited a number of cases in support of its arguments that Ms. Lighting should not be appointed next friend. [39] In Gronnerud (Litigation Guardian of) v.

Gronnerud Estate, 2002 SCC 38 , [2002] 2 S.C.R. 417, the SupremeCourt considered the Saskatchewan Rules of Court regarding the removal and replacement of the litigation representative of a defendantadult. The Saskatchewan Rules are different from the Alberta Rules (both old and new). The old Alberta Rules made no provision for theremoval and replacement of a next friend; the new Rules do in R. 2.21. Regardless of the differences, I am satisfied that under the oldRules, the Crown had the jurisdiction (at least under parens patriae) to remove and replace an infant’s next friend.

The test forreplacement is set out in Gronnerud at para 18-20: the best interests of the child. At paragraph 2 the Court held: The Szwydky[1] criteria provided guidance in defining the “best interests” test set out in Rule 49. The third criterion, that of “indifference”to the result of the legal proceedings, essentially means that the litigation guardian cannot possess a conflict of interest vis-à-vis theinterests of the disabled person.

Indifference by a litigation guardian requires that the guardian be capable of providing a neutral,unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course ofaction. In essence the requirement of indifference on the part of a litigation guardian is a prerequisite for ensuring the protection of thebest interests of the dependant adult.

A litigation guardian who does not have a personal interest in the outcome of the litigation will beable to keep the best interests of the dependant adult front and centre, while making decisions on his or her behalf. Given the primacy ofprotecting the best interests of disabled person, it is appropriate to require such disinterest on the part of a litigation guardian. [40] Bowes v. Gauvin, 2001 ABCA 206, dealt with custody and guardianship.

There, the Court of Appeal held at paragraph 9: Therefore the respondents’ claim for guardianship and custody fell squarely within the test enunciated by this court in D. (W.) v.

P. (G.)(1984), (AB CA), 54 A.R. 161 (Alta C.A.) at para. 14 [hereinafter D. (W.)], leave to appeal to S.C.C. refused [1984]6 W.W.R. lxiii (S.C.C.)]: While there is some confusion on the point in the authorities, I understand the rule to be that a stranger to a child - including agovernmental agent - cannot wrest custody from the lawful guardian of the child without first demonstrating that the lawful guardian haseither abandoned or neglected the child, or without offering other commanding reasons. But, in a contest between two recognizedguardians, the person who can offer superior parenting will prevail.

The first is the “fitness” rule; the second is the “best interests” rule. The court concluded that in the case of a competition between a legal stranger and a legal guardian, the appropriate test is not the bestinterests of the child, but rather, the fitness test. [41] While the case is of limited relevance here, I note there is evidence (albeit hearsay) and representations from counsel thatL.C. is unwilling to give instructions to counsel, effectively leaving E.M.P. with counsel but no way of instructing him. That cannot bein her best interests.

[42] I do not read W.A. as holding that a next friend can only be a stranger where no family member is capable of being nextfriend. In any event, that is in my view only relevant where there is a conflict between competing candidates seeking to be appointednext friend. That is not the case here. [43] If Ms. Lightning had self-appointed under the old Rules of Court (if that could have been done without Court order in the faceof an existing next friend), the Crown might only have been able to argue as to conflict of interest issues.

But she did not self-appoint.Instead, she seeks payment as next friend/litigation representative and exemption from liability for costs. The Crown certainly has thestatus to respond to those issues, as it is the Crown from whom Ms. Lightning seeks payment, and it is the Crown that might be deprivedof a cost remedy if the lawsuit is eventually unsuccessful against it. 3. Terms and Conditions on Appointment [44] The Crown also argue that there is no precedent for a next friend to be compensated by the opposing party, citing Crothers v.Simpson Sears Ltd. (1988), 1988 ABCA 155 , 59, Alta. L.

R. (2d) 1 (C.A.) and Salamon v. Alberta (Minister of Education)1991 CarswellAlta 199. [45] This argument is contradicted by the orders of Ritter J. In W.A. and Macklin J. in T.W. referenced above. [46] Here, the Crown does not argue that Ms. Lightning is not a suitable person to be next friend. L.C. has raised no objections toMs. Lightning acting in this capacity and of course has appointed Ms. Lightning to be her attorney under a power of attorney. But sinceMs.

Lightning has sought appointment by the Court (and seeks favourable terms from the Court), the Court must be satisfied that herappointment would be in E.M.P.’s best interests. [47] Ms. Lightning has no experience with class actions, although she does have experience with Child Welfare matters. Herexperience with civil litigation and Charter litigation (which this action might best be described as) is unclear. [48] It appears clear that she is attorney for L.C. and as such owes a duty of loyalty to L.C. She is undoubtedly in a fiduciaryrelationship to L.C.

L.C.’s interests and E.M.P.’s interests in the action and in the intended class action are not identical. E.M.P. is nowbeing put forward as the potential representative plaintiff for the “failure to file” child plaintiffs.

It is not clear to me that it is in E.M.P.’sbest interests to head up a class action, or be involved in an action with her mother and potentially her siblings’ claims, as opposed tohaving her own, stand-alone damage action, or being in a child-only class action. [49] There are potential conflict issues between E.M.P. and her mother which make it important that E.M.P. have an independentnext friend or litigation representative. I realize that parents are often next friends for their children in actions where the parents may beplaintiffs in their own right.

But those are situations where the parents will self-appoint and not look to the Courts to make theappointment. Where the Court is required to make the appointment, different considerations apply. Appointing a next friend or litigationrepresentative who is already a parent’s attorney under a power of attorney may put the next friend or litigation representative in animpossible position if there is a conflict between the parent’s and the child’s interests. [50] As a result, while I conclude that E.M.P. requires a next friend/litigation representative, that person should not be Ms.Lightning.

This decision has nothing to do with Ms. Lightning; rather it is founded on concerns for potential conflicts between themother’s interests and the daughter’s interests. The appointee should make decisions for E.M.P. based solely on E.M.P.’s interestswithout reference to L.C.’s or anyone else’s interests. 3. Who should be E.M.P.’s next friend/litigation representative? [51] I do not see that the Crown should have a say or input into who should be appointed next friend or litigation representative for

E.M.P., subject only to any concerns over possible conflicts of interest with the Crown. Following the logic in W.A. , the next friend or litigation representative should be someone reasonably agreeable to both counsel for E.M.P., Mr. Lee, and the Public Trustee. Even though the Public Trustee is not E.M.P.’s trustee, I consider it appropriate that it be the Public Trustee’s office that is involved in the selection of a next friend.

That office has considerable expertise and experience in such matters. [ 52 ] If counsel are unable to agree on an appropriate next friend/litigation representative within 30 days from the date of this decision, each of Mr. Lee and the Public Trustee should submit the name of at least one candidate along with the information required by Rule 2.14(2)(a),(c),(

d) and (e), together with a brief statement of the candidate’s qualifications, and I will make an appointment so long as I find one of those candidates appropriate. 4.

Exemption from liability for costs [ 53 ] Where the Court is of the opinion that a next friend/litigation representative is necessary for a child and the person appointed is essentially a stranger to the child and is in the nature of a professional advisor rather than being a parent or guardian, there is a strong case to be made for protecting the person from personal liability for costs. [ 54 ] In T.W. , I was advised by counsel that an independantlawyer was appointed to act as next friend for the infant plaintiffs, and the next friend was indemnified against liability for costs by the Public Trustee.

Here, it would be inappropriate to appoint the Public Trustee as next friend or litigation representative because the defendant is the Crown and there may be at least an appearance of a conflict of interest on the part of the Public Trustee in advising for or against suing the Crown. [ 55 ] Ritter J. and Brooker J. recognized the power of the Court to exempt a next friend from liability for costs in W.A. and Thomlinson , respectively, and I consider that this is an appropriate case to grant such exemption for E.M.P.’s next friend/litigation representative.

This is a highly unusual step, as it leaves the Defendants in this action without any effective cost remedy in the event they are successful in defending against E.M.P.’s claims. [ 56 ] In this case, however, I consider the fact that the Defendants are Alberta government entities.

E.M.P. appears to have a prima facie case for liability on her existing statement of claim: she was apprehended by the Director; a TGO was granted in favour of the Director; the Director failed to file a care plan for E.M.P. within 30 days from the granting of the TGO; and E.M.P. remained in the Director’s care despite the TGO becoming a nullity under T.S. v. Alberta (Director of Child Welfare) , 2002 ABCA 46 . The nature and extent of E.M.P.’s damages (if any) are unclear. [ 57 ] The Court of Appeal ruled in C.H.S. v.

Alberta (Child, Youth and Family Enhancement Act, Director) , 2010 ABCA 15 , that there may also be Charter claims arising out of the Director’s “failure to file” for affected children and their parents or guardians.

Those claims have not yet been added to E.M.P.’s claim against the Defendants. [ 58 ] And having regard to the number of children and others affected by the Director’s failure to file care plans and the other types of claims discussed in my decision at 2011 ABQB 12 , a next friend or litigation representative will have to decide whether it is in E.M.P.’s best interests to convert her action into a proposed class action. [ 59 ] Considering these various matters, I am of the view that it is appropriate to exempt E.M.P.’s next friend/litigation representative from liability for costs in this action in relation to E.M.P.’s individual action.

This exemption would not apply to liability for costs as a representative plaintiff or proposed representative plaintiff if the action is converted to a proposed class action and the next friend/litigation representative determines that it is in E.M.P.’s best interests to have him or her be put forward as representative plaintiff. It is premature to consider whether a next friend might be granted an exemption from liability for costs as a representative plaintiff in a class action. 5.

Payment for the Next Friend/Litigation Representative [ 60 ] As determined in W.A. and Thomlinson , and as has apparently been the case for T.W.’s children and one of M.B.’s grandchildren who have recently become permanent wards of the Director, the independent next friend was entitled to be paid for his or

her services as next friend by the Public Trustee. The evidence before me satisfies me that L.C. is unable to pay for the services of an independent next friend or litigation representative for E.M.P. I consider it appropriate that the Public Trustee pay for E.M.P.’s services as next friend at rates to be approved by the Public Trustee. [ 61 ] New Rule 2.17(1) provides that the Court may require the defendant to pay the costs of a litigation representative for a child.

I do not interpret that Rule as limiting the Court’s ability to appoint someone other than the Public Trustee as a child’s litigation representative, at the Public Trustee’s cost, or to require the Public Trustee to pay the reasonable costs of a child’s litigation representative where it is not appropriate for the Public Trustee to act as litigation representative. 6. Funding for Counsel for E.M.P. [ 62 ] This is the Okanagan aspect of the applications.

It is interesting to note that new Rule 2.17(2) permits a court-appointed litigation representative to apply for advance costs. [ 63 ] The Public Trustee has retained counsel for T.W.’s children and M.B.’s grandson.

It has been represented to me that counsel will be paid for advice, but if an action is to be actively pursued on their behalves, contingency arrangements would have to be made with counsel, as the Public Trustee does not generally fund litigation costs for plaintiff children. [ 64 ] Were E.M.P. to be under the care of the Director, the Public Trustee would be paying for her next friend and for her lawyer, to the point of pursing an action.

Her claim arises out of her apprehension by the Director and his alleged failure to follow his statutory responsibilities, just like the claims of T.W.’s children and M.B.’s grandson. I do not see it as an unreasonable burden on the Crown to put E.M.P. in the same situation as other children who faced similar treatment by the Crown and who are now wards of the Crown.

The evidence before me is that L.C. has limited means and is unable to afford to pay for a lawyer for herself or for E.M.P. [ 65 ] Okanagan held that advance costs are appropriate and may be ordered in certain limited circumstances: 35 Based on the foregoing overview of the case law, the following general observations can be made.

The power to order interim costs is inherent in the nature of the equitable jurisdiction as to costs, in the exercise of which the court may determine at its discretion when and by whom costs are to be paid.... 36 There are several conditions that the case law identifies as relevant to the exercise of this power, all of which must be present for an interim costs order to be granted. The party seeking the order must be impecunious to the extent that, without such an order, that party would be deprived of the opportunity to proceed with the case.

The claimant must establish a prima facie case of sufficient merit to warrant pursuit. And there must be special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where this extraordinary exercise of its powers is appropriate.

These requirements might be modified if the legislature were to set out the conditions on which interim costs are to be granted, or where courts develop criteria applicable to a particular situation where interim costs are authorized by statute (as is the case in relation to s. 249(4) of the Ontario Business Corporations Act ; see Organ , supra , at p. 213).

But in the usual case, where the court exercises its equitable jurisdiction to make such costs orders as it concludes are in the interests of justice, the three criteria of impecuniosity, a meritorious case and special circumstances must be established on the evidence before the court. 39 One factor to be borne in mind by the court in making this determination is that in a public law case costs will not always be awarded to the successful party if, for example, that party is the government and the opposing party is an individual Charter claimant of limited means.

Indeed, as the B. (R.) case demonstrates, it is possible (although still unusual) for costs to be awarded in favour of the unsuccessful party if the court considers that this is necessary to ensure that ordinary citizens will not be deterred from bringing important constitutional arguments before the courts. Concerns about prejudging the issues are therefore attenuated in this context since costs, even if awarded at the end of the proceedings, will not necessarily reflect the outcome on the merits.

Another factor to be considered is the extent to which the issues raised are of public importance, and the public interest in bringing those issues before a court. 40 With these considerations in mind, I would identify the criteria that must be present to justify an award of interim costs in this kind of case as follows:

1. The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringingthe issues to trial — in short, the litigation would be unable to proceed if the order were not made. 2. The claim to be adjudicated is prima facie meritorious; that is, the claim is at least of sufficient merit that it is contrary to theinterests of justice for the opportunity to pursue the case to be forfeited just because the litigant lacks financial means. 3.

The issues raised transcend the individual interests of the particular litigant, are of public importance, and have not been resolvedin previous cases. 41 These are necessary conditions that must be met for an award of interim costs to be available in cases of this type. The fact that theyare met in a particular case is not necessarily sufficient to establish that such an award should be made; that determination is in thediscretion of the court. If all three conditions are established, courts have a narrow jurisdiction to order that the impecunious party’s costsbe paid prospectively.

Such orders should be carefully fashioned and reviewed over the course of the proceedings to ensure that concernsabout access to justice are balanced against the need to encourage the reasonable and efficient conduct of litigation, which is also one ofthe purposes of costs awards. When making these decisions courts must also be mindful of the position of defendants. The award ofinterim costs must not impose an unfair burden on them.

In the context of public interest litigation judges must be particularly sensitive tothe position of private litigants who may, in some ways, be caught in the crossfire of disputes which, essentially, involve the relationshipbetween the claimants and certain public authorities, or the effect of laws of general application. Within these parameters, it is a matter ofthe trial court’s discretion to determine whether the case is such that the interests of justice would be best served by making the order. [66] In Deans v.

Thachuk, (2005) 2005 ABCA 368 , 376 A.R. 326 (C.A.), the Court of Appeal reversed the chambersjudge’s refusal to order advance costs from the defendant pension fund. The Court of Appeal concluded that the three-part Okanagantest was to be applied. [67] In considering whether the case involved the “special circumstances” necessary to warrant advance funding, the Courtapproved Townsend v.

Florentis, [2004] O.T.C. 313 (S.C.J.) at paras. 56-57: “ The third test set out by LeBel J. is whether there are special circumstances sufficient to satisfy the court that the case is within thenarrow class of cases where this extraordinary exercise of the court's power is appropriate. In Okanagan itself, the special circumstanceswere that the issues were of profound importance to the people of B.C. and their determination would be a major step towards resolvingproblems in the relationship of Aboriginals and the Crown.

I do not suggest that such an extreme example is the measure to use in everycase, but, recalling that the circumstances must be special, that the class is narrow, and that the exercise of the power is extraordinary, itis clear that there must exist some factor which decisively lifts the applicant's case out of the generality of cases. The existence of issuesgoing beyond the interests of the parties alone would seem to be one possible example of the minimum required.

Concerns about access to justice and the desirability of mitigating severe inequality between litigants feature prominently in the rarecases where interim costs are awarded. However, by definition, impecuniosity alone is not enough: it is but one of the three criteria. Themere 'leveling of the playing field', although an admirable objective, would deprive the Third Test of any real meaning, and substitute aform of judicial legal aid, available in any case involving impecunious parties.

The principles developed in the administration of FamilyLaw Rule 24(12) include the leveling of the playing field, but one must remember that these rules are dealing with a very specialrelationship.” [68] Mr. Lee also referred to Lloyd v. Imperial Oil Ltd., 2001 ABQB 407, Vancouver (City) v. Ward, 2010 SCC 27 ,2010 S.C.C. 27, B.(R.) v. Children’s Aid Society of Metropolitan Toronto, (O.N.C.A.), and Alberta (Child, Youthand Enhancement, Director) v. B.M., 2009 ABCA 258.

It is not necessary for me to discuss or review those cases in these reasons. [69] The Crown argues that the “rare and exceptional” or “extraordinary” circumstances required to be shown for advance costsare not present here, citing Okanagan, Little Sisters and Reference re: Criminal Code, s. 293, 2010 BCSC 517. [70] The Crown agrees that the three part Okanagan test is the correct test to apply. [71] It cites W.A. v. St. Andrew’s College (O.N.S.C.), , where plaintiffs in a proposed class action involvingallegations of child sexual abuse sought immunity in advance from possible costs.

Such immunity was denied as being premature (at

best). [72] That case is not helpful here. The Plaintiff seeks advance costs, not immunity. [73] The Plaintiff might be required to repay any advance costs (and fees paid to the next friend) in the discretion of the eventualtrial judge. [74] Further, the Crown’s arguments that the Okanagan tests have not been satisfied are not persuasive. I am satisfied on theevidence before me as to the necessary level impecuniousity for both E.M.P. and L.C. Few individuals can afford to undertake litigationagainst the Government other than on a contingency arrangement.

There is no such arrangement here. [75] I do not require the same level of detail of impecuniosity as was required in R. v. Black Pine Enterprises Ltd., 2001 BCSC1849, R. v. Malik, 2003 BCSC 1439 , [2003] B.C.J. 2167 (S.C.), R. v. Rain, (1994) 25 Alta. L.R. (3d) (C.A.) or R. v. Chan,2000 ABQB 728, to make that finding. These are all cases seeking Rowbottom fundings, which applies different tests. [76] I also do not consider that the issues involved have been resolved by T.S. and the subsequent amendments to the applicablelegislation.

I do not see that any case has addressed an affected child’s or parent’s entitlement to damages in T.S. circumstances. Icertainly do not hear the Crown saying that entitlement is conceded and only individual assessments of damages are required. [77] Further, advance costs might be ordered at any state of the litigation, for any stage of the litigation. [78] The Crown’s concerns over appropriate checks and balances on any advance costs are answered by the limited scope of theservices for which advance costs are being sought.

As well, the next friend/litigation representative or the Crown (as payor) can alwayshave any solicitor’s account taxed. A process for review and taxation (if necessary) could be built into any order. Decision [79] I am satisfied that in this case, the three conditions for advance costs have been made out: 1. E.M.P. is unable to pay for legal fees to pursue this claim; 2. Her claim is prima facie meritorious; and 3.

The issues in her claim transcend her individual interests, they are of public importance, and they have not been resolved inprevious cases. [80] There is a public interest in understanding the Director’s actions and inactions in E.M.P.’s and similar situations. Governmentaction should be scrutinized by an informed public. E.M.P.’s claims raise a serious public interest having regard to the decision in T.S.and subsequent legislative responses or reactions to that decision.

All other litigation involving similar claims has been stayed, and therehas been no resolution of the issues raised in this action as it presently stands, or as it may be amended to accord with the Court ofAppeal’s directions in this case and in C.H.S. [81] It is difficult to think of circumstances more compelling for advance costs to assist person such as E.M.P. to obtain legaladvice.

She is still a child; she has a prima facie meritorious claim against the Crown; her claim arose while she was a temporary ward ofthe state; the Crown was at the time in a fiduciary relationship to her; her claim arose out of the alleged breach by the Director of clearduties under his home legislation; her claim arose after the Alberta Court of Appeal had issued a strong ruling on the point in issue; andthe Crown (through the Public Trustee) is paying for children in similar situations to get legal advice if they are now permanent wards of

the state. [ 82 ] E.M.P.’s next friend/litigation representative should be able to consult counsel and obtain legal advice as to the merits of E.M.P.’s claims, and various strategies as to how best to advance such claims.

The reasonable legal fees and disbursements of such counsel should be paid by the Crown through to any amendment to E.M.P.’s Statement of Claim to comply with the Court of Appeal’s decision in this action and in C.H.S. , as well as amendments to convert E.M.P.’s claim to a proposed class action (if applicable). [ 83 ] At the point of completion of these amendments, and any amendments necessary to convert E.M.P.’s claim to a proposed class action, payment for any ongoing legal fees and disbursements (including any application for certification) should be readdressed. [ 84 ] The advance cost award herein does not include any payment for past services; it is intended only to take E.M.P.’s action from where it is now to such time as the pleadings are regularized and put in order so that a certification application (if that is what is determined to be in E.M.P.’s best interests) can be brought.

Funding for Counsel for L.C. [ 85 ] The mini- Okanagan application was brought on behalf of L.C. as well. The Statement of Claim has not yet been amended to make it consistent with the Court of Appeal’s decision in this action, L.C. v. Alberta , 2010 ABCA 14 , and in C.H.S. (supra). What is required is to plead the Charter issues that the Court of Appeal held were “loosely made out”, as well as to convert the action on L.C.’s behalf to a proposed class action, if that is still her intent. [ 86 ] L.C. is now intending to carry on the action by her attorney under a power of attorney.

It is not clear to me how the mechanics of that will work and I expect there will be issues raised at case management in that regard. But at the present time, Ms. Lightning has made arrangements with L.C. so that a next friend or litigation representative is not required. [ 87 ] The evidence satisfies me that L.C. is financially unable at this stage to pursue the litigation either on her own or as the representative plaintiff for a class action. Mr. Lee has advised that he is not able to continue on as counsel without ongoing payment; no satisfactory contingency arrangement has been entered into between Mr.

Lee and L.C. There is also evidence that Mr. Lee has attempted unsuccessfully to attract co-counsel for the proposed “failure to file” class action. [ 88 ] So for the purposes of this mini- Okanagan application, the first of the three tests has been made out. [ 89 ] Is L.C.’s claim prima facie meritorious? That is a difficult question at this stage. The precise Charter argument has not been plead. From the discussion of the issue in the Court of Appeal in this action and in C.H.S. , there was no comment on the merits of such allegations.

Those proceedings arose out of an application to strike, so the merits of the claims were irrelevant to the decision. There is nothing in the claim alleging that E.M.P. was wrongly apprehended by the Director or that the TGO was improperly obtained.

L.C.’s claim is apparently that her Charter rights were violated because the Director failed to prepare a timely and adequate care plan to reunite E.M.P. with L.C. and the rest of her family, as well as by the Director failing to return E.M.P. to her when the TGO became a nullity (because of his failure to file a care plan in time). [ 90 ] At this stage, I cannot conclude that L.C.’s Charter claim is prima facie meritorious. It may well be arguable, but that does not make it meritorious.

I am not satisfied that the second part of the Okanagan test has been made out. [ 91 ] The third part of the test - do L.C.’s claims transcend her individual interests, are they of public importance, and they have been resolved in previous cases - requires analysis. As with E.M.P.’s claim, there is a public interest in understanding and scrutinizing the Director’s actions and inactions in this and similar situations. There is certainly a public interest in understanding the Director’s actions following the Court of Appeal decision in T.S. and subsequent legislative changes.

Charter rights and allegations of breaches of Charter rights are often of public concern beyond the interests of the directly affected party. These issues have not been resolved in any other litigation. [ 92 ] However, different considerations apply for L.C. than with E.M.P. L.C. was owed very different duties by the Crown. Until it

can be established that her Charter claims are prima facie meritorious (which will require some analysis of the facts in the context of the pleadings specifically putting forward the Charter claims) the public interest aspect cannot be properly analyzed. [ 93 ] I realize that there is a Catch-22 argument here: L.C. cannot afford to amend her pleadings so that a prima facie case can be argued in support of her application for advance costs to amend her pleadings. But advance costs under Okanagan are an extremely rare occurrence.

In my view, a party does not satisfy the tests under Okanagan by saying “I have a meritorious claim, the precise nature of which will be described in the statement of claim. Give me advance costs so I can commence the action.” A plaintiff may be able to come forward and allege facts and law that demonstrate a prima facie meritorious claim. But that has not happened here.

L.C.’s Charter arguments and any facts to support them are presently too vague. [ 94 ] Without a more thorough description of L.C.’s Charter claims, I cannot conclude that the public interest component of Okanagan has been satisfied either. [ 95 ] L.C.’s application for advance costs is dismissed at this stage. Amended pleadings or additional facts may satisfy the Okanagan tests for subsequent proceedings.

Summary 1. E.M.P. is in need of a next friend/litigation representative. 2. Denise Lightning is not appropriate to be a Court-appointed next friend/litigation representative because she is attorney for L.C. under a power of attorney and might be placed in conflict situations; 3. An appropriate next friend/litigation representative should be agreed between Mr. Lee and the Public Trustee; 4. The next friend/litigation representative is entitled to be paid for such service by the Crown; 5.

E.M.P. is entitled to advance costs from the Crown to obtain advice on her action against the Crown and to amend her pleadings to conform to the Court of Appeal decision in this matter and in C.H.S. as well as to convert it to a proposed class action (if determined to be appropriate by the next friend/litigation representative); 6. E.M.P. may reapply for further advance costs once the pleadings have been amended; 7. L.C. is not entitled to advance costs from the Crown at this stage of the litigation.

Costs [ 96 ] E.M.P. has been substantially successful on her application for the appointment of a next friend/litigation representative, as well as for some advance costs from the Crown. She should get one set of costs relating to the four day application in October. I would attribute half of the time and materials for that application to her claims and the other half to her mother’s. [ 97 ] L.C. abandoned her application for the appointment of a next friend after the application was over and she has been unsuccessful in her application for advance costs.

She is responsible to the Crown for one set of costs relating to her involvement in the October application.

Heard on the 19 th , 20 th , 21 st and 22 nd days of October, 2010. Dated at the City of Edmonton, Alberta this 24 th 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 [1] Szwydky v. Magiera , (1988), 21 Sask. L. R. 273 (Q.B.)