Martin Estate v Alberta, 2011 ABQB 634

Court of Queen ’ s Bench of Alberta Citation: Martin Estate v Alberta, 2011 ABQB 634 Date: 20111017 Docket: 1103 08609 Registry: Edmonton Between: Estate of Samantha Martin and Velvet Martin Applicants - and - Her Majesty the Queen In Right of Alberta Respondent _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice John J. Gill _______________________________________________________ I.

Introduction [ 1 ] The application raises the issue of a superior court’s authority to order public interest funding in respect of proceedings taking place before an inferior tribunal. [ 2 ] The Applicants apply for an Order requiring the Respondent, Her Majesty the Queen in Right of Alberta (Alberta), to pay the legal fees of Velvet Martin or the legal fees of her daughter Samantha Martin’s estate to assist the Applicants in participating in a fatality inquiry before a judge of the Provincial Court.

II. The Factual Background [ 3 ] Much of the factual background was set out in the brief filed by Alberta. The relevant facts are as follows. [ 4 ] A fatality inquiry (the Fatality Inquiry) was directed in respect of the death of Samantha Martin pursuant to the Fatality Inquiries Act , R.S.A. 2000, c. F-9 (the Act ). The Fatality Inquiry is being conducted by a judge of the Provincial Court of Alberta.

The Minister of Justice and Attorney General appointed external counsel, David Syme, as inquiry counsel for the Fatality Inquiry. [ 5 ] The Applicant, Velvet Martin, was granted status as an interested party at the Fatality Inquiry as the mother of Samantha Martin. The foster parents of Samantha Martin were also granted status as interested parties at the Fatality Inquiry. The foster parents retained legal counsel to represent them, as did the department of Children, Youth and Family Services. [ 6 ] The Fatality Inquiry commenced on January 17, 2011 and continued through January 21, 2011.

It was adjourned on January 21, 2011 to January 27, 2011. On January 27, 2011, counsel for the foster parents sought an adjournment of the inquiry to February 7, 2011 which was granted. The Fatality Inquiry continued on February 7, 2011 through February 11, 2011. [ 7 ] The Applicant, Velvet Martin, has appeared at the Fatality Inquiry every day since it commenced. She has participated by raising objections, objecting to adjournment requests, and communicating with inquiry counsel about evidence. [ 8 ] On February 11, 2011, Velvet Martin appeared at the Fatality Inquiry accompanied by legal counsel.

Legal counsel applied for an adjournment for the purpose of bringing an application before the inquiry judge to appoint counsel for the estate of Samantha Martin and to pay fees of that counsel. The inquiry judge granted the adjournment to March 18, 2011, at which time that application could be heard.

Velvet Martin acknowledges that her counsel has also been able to provide her pro bono advice previously during the course of the Fatality Inquiry. [ 9 ] On March 18, 2011, counsel for Velvet Martin advised the Fatality Inquiry judge that he was now bringing the application for funding of legal counsel for the Applicants for the remainder of the fatality inquiry to the Court of Queen’s Bench.

The Fatality Inquiry was adjourned to November 2-4, 2011. [ 10 ] While public funding of the Applicants’ legal fees was at times discussed during the Fatality Inquiry, Velvet Martin did not bring an application before the Fatality Inquiry Provincial Court judge seeking a recommendation from the judge that Alberta fund legal counsel to represent her or her daughter’s estate at the Fatality Inquiry. [ 11 ] On May 27, 2011, an originating application was filed in the Court of Queen’s Bench seeking an Okanagan order that Alberta fund legal counsel for Velvet Martin, or for the estate of Samantha Martin, for the remainder of the Fatality Inquiry.

This type of order is referred to in the case law as an interim or advance costs order or an order for public interest funding. III. Issue Should Alberta be ordered to pay Velvet Martin ’s legal fees or the legal fees of her daughter Samantha Martin ’s estate to assist the Applicants in participating in the remainder of the Fatality Inquiry?

IV. The Law [12] This application is governed by the principles outlined in R v Caron, 2011 SCC 5, [2011] 1 S.C.R. 78, a case in which theSupreme Court of Canada determined that the inherent jurisdiction of the Alberta Court of Queen’s Bench can extend to ordering publicfunding in respect of proceedings in the Provincial Court. At para. 6, the Court provided an overview: As a general rule, of course, it is for Parliament and the provincial legislatures to determine if and how public monies will be used tofund litigation against the Crown, but it has sometimes fallen to the courts to make such determinations.

To promote trial fairness incriminal prosecutions, for instance, the courts have in narrow circumstances been prepared to order a stay of proceedings unless theCrown funded an accused in whole or in part: R. v. Rowbotham (1988), (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.); R. v.Rain (1998), 1998 ABCA 315 , 223 A.R. 359 (C.A.). In the civil context, British Columbia (Minister of Forests) v.

OkanaganIndian Band, 2003 SCC 71, [2003] 3 S.C.R. 371, extended the class of civil cases for which public funding on an interim basis could beordered to include "special circumstances sufficient to satisfy the court that the case is within the narrow class of cases where thisextraordinary exercise of its powers is appropriate" (para. 36). Okanagan was based on the strong public interest in obtaining a ruling ona legal issue of exceptional importance that not only transcended the interest of the parties but also would, in the absence of publicfunding, have failed to proceed to a resolution, creating an injustice.

In Little Sisters Book and Art Emporium v. Canada (Commissionerof Customs and Revenue), 2007 SCC 2, [2007] 1 S.C.R. 38 ("Little Sisters (No. 2)"), the majority affirmed that the injustice that would arise if the application is not granted must relate both to the individual applicant and to the public at large.

Thismeans that a litigant whose case, however compelling it may be, is of interest only to the litigant will be denied an advance costs award.It does not mean, however, that every case of interest to the public will satisfy the test. [para. 39] Neither Okanagan nor Little Sisters (No. 2) concerned an interim funding order made in respect of matters proceeding in a lower court.Nevertheless, the Alberta courts were faced here with a constitutional challenge of great importance. And at para. 30: Of course the very plenitude of this inherent jurisdiction requires that it be exercised sparingly and with caution.

In the case of inferiortribunals, the superior court may render "assistance" (not meddle), but only in circumstances where the inferior tribunals are powerless toact and it is essential to avoid an injustice that action be taken.

This requirement is consistent with the "sufficiently special"circumstances required for interim costs orders by Little Sisters (No. 2), at para. 37, as will be discussed. [Emphasis added] [13] The Supreme Court of Canada went on to consider the concern of avoiding an injustice, at paras. 38 and 39: Clearly, this case is not Okanagan where the Court viewed the funding issue from the perspective of a proposed civil trial not yetcommenced. We are presented with the issue of public interest funding in a different context.

Nevertheless, Okanagan/Little Sisters (No.2) provide important guidance to the general paradigm of public interest funding. In those cases, as earlier emphasized in the discussionof inherent jurisdiction, the fundamental purpose (and limit) on judicial intervention is to do only what is essential to avoid an injustice. The Okanagan criteria governing the discretionary award of interim (or "advanced") costs are three in number, as formulated by LeBelJ., at para. 40: 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 resolved in previous cases. Even where these criteria are met there is no "right" to a funding order .

As stated by Bastarache and LeBel JJ. for the majority in Little Sisters (No. 2) : In analysing these requirements, the court must decide, with a view to all the circumstances, whether the case is sufficiently special that it would be contrary to the interests of justice to deny the advance costs application, or whether it should consider other methods to facilitate the hearing of the case. The discretion enjoyed by the court affords it an opportunity to consider all relevant factors that arise on the facts.

While these criteria were formulated in the very different circumstances of Okanagan and Little Sisters (No. 2) , in my opinion they apply as well to help determine whether the costs intervention of the Court of Queen's Bench was essential to enable the provincial court to "administer justice fully and effectively", and may therefore be said to fall within the superior court's inherent jurisdiction. [Emphasis added] [ 14 ] In

summary, while the Court of Queen’s Bench has authority to order the public funding sought in this case, this authority is to be exercised sparingly and with caution. Specifically, this Court can render such assistance “only in circumstances where the inferior tribunals are powerless to act and it is essential to avoid an injustice that action be taken”: Caron at para. 30 . V. Analysis [ 15 ] It is commendable how involved the Applicant Ms. Martin has been in the Fatality Inquiry. Apparently she has been present at the inquiry everyday and has taken an active role in the proceedings.

It is also understandable why she would want to have her own legal counsel to assist her. [ 16 ] To determine the issue, this Court has to apply the test from Caron : 1) Are the circumstances in this case such that the inferior tribunal, the Fatality Inquiry judge, is powerless to act? 2) Is it essential to avoid an injustice that this Court take action? 1) Is the Fatality Inquiry judge powerless to act? [ 17 ] The Alberta Court of Appeal, in Alberta (Minister of Justice) v Bjorgan , 2005 ABCA 309 , 417 A.R. 245, reviewed the power of a judge at a fatality inquiry to order the payment of an interested party’s legal fees.

At para. 11: “We therefore conclude that the duty of procedural fairness cannot provide a fatality inquiry judge with the authority to mandate that funded legal counsel be provided to a target of the inquiry. While it may be desirable to provide this authority to public inquiry commissioners in light of social policy considerations, such authority would have to be specifically provided for in the governing legislation.

As it currently stands, a fatality inquiry judge has the authority only to: (1) recommend that an individual obtain legal counsel; (2) recommend that an individual apply for legal aid if unable to afford counsel; (3) recommend that the Crown pay an individual’s legal costs in those circumstances where it is considered necessary.”

[ 18 ] The Applicants submit that the Fatality Inquiry judge is powerless to act because all she can do is recommend that the Crown pay an individual’s legal costs in those circumstances where it is considered necessary. [ 19 ] In this case, the Applicants did not request that the Fatality Inquiry judge make such a recommendation.

We do not know whether or not the Fatality Inquiry judge would have made such a recommendation if asked, nor do we know whether or not the Crown would pay the fees if the Fatality Inquiry judge were to make such a recommendation. [ 20 ] What is important at this stage of the analysis, however, is to assess whether or not the Fatality Inquiry judge is powerless to act. Clearly, that is not the case. The Fatality Inquiry judge can make a recommendation to the Crown.

Making recommendations is an essential component of a fatality inquiry judge’s statutory jurisdiction under the Act : s. 53(2) . [ 21 ] The Act also gives a fatality inquiry judge broad powers over procedural matters. For example, s. 37.1 states: 37.1(1) A judge who conducts a public fatality inquiry (

a) shall, before receiving any evidence at the inquiry, and (

b) may, at any time during the inquiry hold a conference under this section.

(2) At a conference referred to in subsection (1) the judge may give directions respecting (

a) the issues that will be or are under consideration at the public fatality inquiry, (

b) procedural matters and matters of fairness related to the public fatality inquiry, and (

c) any other issues that the judge considers have arisen or will arise in connection with the public fatality inquiry. [ 22 ] The Provincial Court judge conducting a fatality inquiry is in the best position to determine the scope of the inquiry and whether or not a participant requires the assistance of legal counsel. In light of this fact and a fatality inquiry judge’s broad powers over procedural matters, it is reasonable to assume that a fatality inquiry judge would recommend that the Crown pay an individual’s legal costs if that judge thought it was necessary in the circumstances.

Additionally, it is reasonable to assume that any such recommendation would carry some weight and be considered seriously by the Crown given the judge’s unique position. If the Crown accepted the recommendation, funding would be provided. [ 23 ] I conclude, therefore, that the Fatality Inquiry judge is not powerless to act and can assist participants who seek publicly funded legal counsel by making recommendations to the Crown where it is considered necessary. The power to make a recommendation is of significance.

A participant who requires the assistance of legal counsel should formally request assistance from the fatality inquiry judge. The Applicants failed to do so in this case. 2) Is it essential to avoid an injustice that this Court take action? [ 24 ] This case presents the issue of public interest funding in the context of a public fatality inquiry.

This is a different context from both the Okanagan case, where the Court viewed the funding issue from the perspective of a proposed civil trial not yet commenced, and the Caron case, where an accused was defending a regulatory prosecution in the provincial court and significant

constitutional issues had been raised. [ 25 ] The nature and purpose of a public fatality inquiry is as a fact-finding process as opposed to an adversarial litigation process resulting in findings of legal liability.

It is, therefore, difficult to strictly apply the three criteria from Okanagan / Little Sisters (No.2) , which were formulated in a context of public interest funding for litigation. [ 26 ] Of significance is that, in Caron , the Supreme Court of Canada reiterated that the discretionary exercise of the superior court’s inherent jurisdiction permits the Court to consider any relevant factors that arise on the facts, and to decline to make a public interest funding order even where all three criteria are satisfied: at para. 39.

Above all, the test is whether or not the superior court is required to take action to avoid an injustice in derogation of the public interest. The satisfaction of all three criteria is, therefore, necessary but not sufficient for the making of a discretionary order for public interest funding: Okanagan at para. 41. [ 27 ] Nevertheless, in Caron at paras. 38-39 , the Supreme Court of Canada suggested that Okanagan and Little Sister No. 2 provide guidance to the general paradigm of public interest funding, and the three criteria are useful in deciding whether public funding should be ordered in a particular case.

Those criteria are: 1. The party seeking interim costs genuinely cannot afford to pay for the litigation, and no other realistic option exists for bringing the 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 the interests 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 resolved in previous cases. [ 28 ] I am not satisfied that the Applicants have met any of these criteria and that an order that Alberta fund the Applicants’ legal fees is necessary to avoid an injustice. [ 29 ] With respect to the first Okanagan criterion, impecuniosity, I agree with the Respondent that the Applicants’ evidence in relation to financial inability is ambiguous and inconclusive.

It appears to relate to attempts to retain counsel to pursue civil litigation against the Crown not the Fatality Inquiry. [ 30 ] In Little Sisters (No. 2) , the Court stated that the question is “whether the applicant has made the effort that is required to satisfy a court that all other funding options have been exhausted”: at para. 68.

Although Velvet Martin provides evidence of a broad network of support, there is little if any evidence to show attempts at fundraising or obtaining financing to hire counsel. [ 31 ] Moreover, this criterion requires that no other realistic option exists for bringing the issues to trial such that the litigation would be unable to proceed without the order sought. In the circumstances of the Fatality Inquiry, it is not clear that counsel is necessary to avoid an injustice.

The Fatality Inquiry will continue whether or not the order sought by the Applicants is granted. [ 32 ] While it is understandable why the Applicants would want to have the assistance of legal counsel, she has actively participated in the Fatality Inquiry on a daily basis to date. Inquiry counsel has been appointed, and he has broad powers over the presentation of evidence, arguments, and submissions: Act , s. 35.

There appears to be no restriction on the ability of inquiry counsel to assist or advise the Applicant, Velvet Martin, or other participants in bringing issues to the Fatality Inquiry. [ 33 ] With respect to the second Okanagan criterion, a meritorious claim, the Applicants cannot be said to be asserting or defending a “claim” in the context of a fatality inquiry. Rather, the Applicant, Velvet Martin, has chosen to participate in a fact-finding inquiry

which shall not contain findings of legal responsibility or conclusions of law. [ 34 ] The Applicants’ position is that publicly-funded counsel is necessary at the Fatality Inquiry to protect and represent the interests of the deceased and of all children in the care of the government of Alberta in order to achieve the objective of the Fatality Inquiry. Yet, the fundamental and statutorily-mandated purpose of the Fatality Inquiry is to provide a written report in relation to the death of Samantha Martin. [ 35 ]

Section 53 of the Act sets out the result of the inquiry: 53(1) At the conclusion of the public fatality inquiry, the judge shall make a written report to the Minister that shall contain findings as to the following: (

a) the identity of the deceased; (

b) the date, time and place of death; (

c) the circumstances under which the death occurred; (

d) the cause of death; (

e) the manner of death.

(2) A report under subsection (1) may contain recommendations as to the prevention of similar deaths.

(3) The findings of the judge shall not contain any findings of legal responsibility or any conclusion of law. [ 36 ] The focus of the Fatality Inquiry is on making factual findings on the identity of the deceased, the date, time and place of death, and the circumstances, cause and manner of death. The focus may also be on making recommendations as to the prevention of similar deaths if such recommendations are appropriate in the particular case.

Although, the decision as to whether or not to make such recommendations in this particular case will be determined by the Fatality Inquiry judge, it is clear that the Fatality Inquiry process already recognizes the interests sought to be protected by the Applicants through publicly-funded legal counsel. [ 37 ] With respect to the third Okanagan criterion, the Fatality Inquiry is clearly of public importance.

However, the Applicants have not demonstrated “special circumstances sufficient to satisfy the court that this case fall within the narrow class of cases where this extraordinary exercise of its powers is appropriate”: Okanagan at para. 36; Caron at para. 6 . The Fatality Inquiry will continue and conclude with the report of the inquiry judge, even without the order sought. The Applicant, Velvet Martin, will able to continue to participate as an interested party.

I am not satisfied that a failure to grant the order sought will deny the Applicants the opportunity of having issues of public interest resolved by the fatality inquiry process. [ 38 ] As the Applicants have not satisfied any of the Okanagan criteria, this is not an appropriate case in which this Court should exercise its narrow discretion to make an order for publicly-funded legal counsel for the Applicants.

It is not essential to avoid an injustice in derogation of the public interest that this Court grant the order sought by the Applicants. [ 39 ] Finally, in the context of a fatality inquiry, it is relevant to the issue of injustice that Applicants are not at risk of any incrimination by participating in the inquiry.

The Act prevents the use of evidence given at the inquiry against the witness in any trial while the proceeding (other than for perjury) and obligates the inquiry judge to inform a witness that is about to give incriminating evidence of his or her rights under s. 5 of the Canada Evidence Act : Act , ss. 48, 50 . This further supports my conclusion that no injustice will be suffered if the Applicants are not granted an order for publicly-funded legal counsel.

VI. Conclusion [ 40 ] In conclusion, I am not satisfied that the Applicants have demonstrated either that the tribunal is powerless to act or that it is essential to avoid an injustice that action be taken. [ 41 ] The application for an Order requiring Alberta be ordered to pay the legal fees of Velvet Martin or the legal fees of her daughter Samantha Martin’s estate to assist Velvet Martin in participating in the Fatality Inquiry is, therefore, dismissed. Heard on the 21 st day of September, 2011. Dated at the City of Edmonton, Alberta this 17 th day of October, 2011. John J. Gill J.C.Q.B.A.

Appearances: Robert P. Lee Robert P. Lee Professional Corp. for the Applicants Doreen Mueller Alberta Justice for the Respondent