P.L. v. Alberta, 2011 ABQB 772

Court of Queen ’ s Bench of Alberta Citation: P.L. v. Alberta, 2011 ABQB 772 Date: 20111207 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 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 on the Crown ’ s Application To Amend Its Statement of Defence of the Honourable Mr. Justice R.A. Graesser _______________________________________________________ I. Introduction [ 1 ] P.L. has sued the Alberta Government, Thomas Svekla, Mona and John Doe claiming that while under a Temporary Guardianship Order in favour of the Government, she was sexually assaulted by Mr. Svekla. Mr. Svekla was the boyfriend of Mona, the foster parent with whom P.L. and her brother had been placed. [ 2 ] The sexual assaults allegedly took place between March, 1995 when Mona began dating Mr.

Svekla and December 27, 1995 when P.L. was removed from Mona’s home and placed with different foster parents. P.L. was 5 years old at the time. [ 3 ] In this application, the Crown has applied for an order permitting it to amend its statement of defence to include defences under the Limitation of Actions Act, R.S.A. 1980, Ch. L-15, the Limitations Act , S.A. 1996, Ch. L-15.2 and the Limitations Act , R.S.A. 2000, Ch. L-12. P.L. opposes the Crown’s application. II. Chronology of Events [ 4 ] This chronology is taken from the affidavit of Connie Zacharias, filed on behalf of the Government in this matter.

I do not think there is any disagreement over the following events. [ 5 ] P.L. was apprehended by Child Welfare on May 30, 1995. On being apprehended, she was placed with Mona. [ 6 ] A Temporary Guardianship Order (TGO) was granted with respect to P.L. on July 18, 1995, for a period of six months. [ 7 ] There is no evidence to suggest that a care plan as required under s. 29(3) of the Child Welfare Act , S.A. 1984, Ch. C-8.1, was filed within 30 days from the order, or at all. [ 8 ] On December 12, 1995, the responsible Child Welfare supervisor began to search for a new foster home for P.L.

P.L. was moved to a new foster home on December 27, 2005. [ 9 ] On March 19, 1996, the TGO was extended for a further 6 months, although an application by P.L.’s maternal grandmother, G.G., for guardianship had been made a few days earlier. [ 10 ] P.L. was placed with G.G. on August 31, 1996. On September 4, 1996 the supervisor received a report that P.L. had been sexually abused by Thomas Svekla while she was living in Mona’s home.

[ 11 ] On September 17, 1996 G.G. was granted a private guardianship order. [ 12 ] P.L. turned eighteen in June, 2008. This action was commenced on June 8, 2010, within 2 years from P.L.’s eighteenth birthday. [ 13 ] The Government filed its statement of defence on April 28, 2011, following a case management ruling on March 31, 2011. [ 14 ] In the summer of 2011, the Government gave notice to P.L.’s solicitor of its intention to apply to amend its statement of defence to plead the Limitations Act , R.S.A. 2000, Ch. L-12 and the Limitation of Actions Act , R.S.A. 1980, Ch.

L-15. [ 15 ] This application was heard in case management on October 17, 2011, and adjourned for argument to November 8, 2011. On November 10, 2011, I advised the parties that I was permitting the Crown’s application to amend, with reasons to follow. III. Basis for Application [ 16 ] The Government argues that it may have a limitations defence under the provisions of the Limitation of Actions Act , R.S.A. 1980, Ch. L-15. Under that Act, limitation periods ran against a minor who was in the custody of his or her guardian.

According to the affidavit evidence of Connie Zacharias filed in support of this application, G.G. became P.L.’s guardian on September 17, 1996. G.G. was aware of the allegations of sexual abuse by Thomas Svekla by September 4, 1996. Alternatively, the Government argues that P.L.’s claim expired two years after the coming into force of the Limitations Act , S.A. 1996, Ch.

L-15.1. [ 17 ] The Government’s argument is that the limitation period for commencing action against the Government expired long before the limitation period for minor’s claims was changed by the Limitations Act of 2000. [ 18 ] The point is discussed by Slatter J. (as he then was) in C.H.S. v. Alberta (Director of Child Welfare) , 2006 ABQB 528 , aff’d 2006 ABCA 355 at paras. 36-37 : 36 When the T.G.O. was obtained with respect to the Plaintiffs on November 20, 2001, limitations ran against a minor under the new Limitations Act , unless the minor was "not under the actual custody of a parent or guardian".

At that time, pursuant to s. 31(2) of the Child Welfare Act , the Director of Child Welfare was the joint guardian of the named Plaintiffs. The named Plaintiffs had been apprehended by the Defendant, and accordingly the Plaintiffs were "in the actual custody" of their guardian. As such, limitation periods would have generally run against the named Plaintiffs. Thus, the limitation period on any claim that was discoverable in November of 2001 would have commenced to run, and the limitation would prima facie have expired in November of 2003.

However, as of June 1, 2003, the Limitations Act was amended so that any limitation periods were "suspended during the period of time that the claimant is a minor". Exactly how this

section applies to the limitation period on claims that were discoverable prior to June 1, 2003 is a matter of some debate. It is possible that the limitation period would toll up until the amendments to the Act were in force on June 1, 2003. The limitation would then arguably be "suspended" until the minor turned 18, at which time the limitation period would start running again until the balance of the two-year limitation period expired. 37 There is an extra layer of complexity.

Under s. 5(2) of the Limitations Act , the limitation would not run when the claim is against the parent or guardian of the minor, even if the minor was in the actual custody of the guardian. When the T.G.O.s were declared to be void, the Defendant presumably ceased to be a guardian, but once the Amending Act validated the T.G.O.s, the status of guardianship was presumably restored. The exact mechanism is sufficiently uncertain that it should not be decided on a

summary basis. The entitlement of the Defendants to rely on the Limitations Act raises triable issues. The amendments should not be disallowed simply because they might be statute barred. Rather, the amendments should be allowed, on the condition that the amendments only take force

as of the filing date of the original Notice of Motion seeking the amendments, and any limitation defence is preserved. [19] The Government argues that amendments to pleadings should generally be allowed, unless there is prejudice the other party,citing Balm v. 3512061 Canada Ltd., 2003 ABCA 98 and Milfive Inv. v. Sefel, (1998), 1998 ABCA 161 , 216 A.R. 196 (C.A.). [20] The exceptions to that general principle are set out at para. 10 in Foda v. Capital Health Region, 2007 ABCA 207: 1. Prejudice to the other party that cannot be compensated by costs; 2. The proposed amendment raises a hopeless defence; 3.

A new party or cause of action is being proposed after the expiry of the applicable limitation period; and 4. The party seeking the amendment is acting in bad faith. [21] The legal test for amendments has not been materially altered by the new rules: 869120 Alberta Ltd. v. B & G Energy Ltd.,2011 ABQB 209. IV. Basis for Opposition [22] P.L. opposes the application. She acknowledges the basic principles and also that there is no prejudice to her that cannot becompensated by costs.

It is common ground that the proposed amendment does not add a party or cause of action outside the applicablelimitation period. [23] P.L. argues, however, that the application cannot succeed as the Government has filed no evidence in support of theapplication. Further, she argues that the proposed limitations defence is hopeless, and that the Government is acting in bad faith. [24] With respect to the absence of evidence, P.L. cites Gouin v. Gouin, 2005 ABQB 899 and Landrex Developers Inc. v. Olsen,2008 ABQB 92. [25] In Gouin, Burrows J. referred to the Court of Appeal’s decision in Crown Life Assurance Co. v.

A.E. LePage (Ontario),[1989] A.J. No. 900 (C.A.) where Laycraft, C.J.A. quoted a chambers decision on the point which succinctly stated “no evidence - noorder”. At para. 5, however, Laycraft C.J.A. stated “We accept, however, that there are circumstances in which an application to amendcould be granted upon a perusal of the proposed amendment.” [26] Burrows J. quoted Balm, where the Court of Appeal held that evidence was not required for amendments which are “trivial”or where the new cause of action is based on allegations of fact which are not new.

Additionally, the Court noted at para. 24 that “manyof the amendments could have been made without evidence”. [27] The Government refers to Master Hanbury’s decision in Doulas v. Pointe of View Condominiums, 2009 ABQB 289, whereshe held at para. 18 that amendments which are essentially legal argument based on already-admitted facts do not need to be supportedby evidence. [28] P.L. argues that there is no evidence before the court that P.L. was in G.G.’s actual custody, and in the absence of suchevidence the proposed amendment should be disallowed.

[ 29 ] As to the hopelessness of the Government’s proposed limitation defence, P.L. argues that her cause of action for trespass or unlawful confinement (based on the Government’s failure to file a care plan in accordance with the Child Welfare Act ) was not discovered by her until recently (after the statement of claim was filed on her behalf, according to her affidavit evidence in opposition to the application). Alternatively, the cause of action was not discoverable until after the decision in T.S. v.

Alberta (Director of Child Welfare) , 2002 ABCA 46 on which the trespass-unlawful confinement cause of action is based. [ 30 ] That decision was after the Limitations Act , R.S.A. 2000, Ch. L-12 came into effect, giving P.L. until 2 years after coming of age to make the claim. P.L. claims that discoverability runs from that date. [ 31 ] With respect to her allegation that the Government is acting in bad faith by making the amendment application, P.L. refers to an Edmonton Journal

article on April 2 nd , 2004 in which then Minister of Child Welfare Iris Evans is quoted as stating that the Government waived limitation periods for claims by children who were in Provincial custody at the time of the alleged wrong. P.L. acknowledges, however, that she did not rely on that article. V. Analysis [ 32 ] It is in my view the Government’s argument concerning the applicability of the limitation period to P.L is arguable and certainly not hopeless. The alleged assaults by Mona and Mr. Svekla were known to P.L. and her grandmother.

If P.L.’s grandmother had actual custody of P.L. (as opposed to guardianship only) for at least two years after September 4, 1996, limitation periods may have run against P.L. on causes of action that were then discoverable. [ 33 ] Mr. Lee argues that the Government has put forward no evidence to support the argument that P.L. was actually in her grandmother’s custody. He is not correct in that submission. Ms.

Zacharias’s affidavit includes references to P.L. being in her grandmother’s custody, and the service plan prepared after the grandmother was granted private guardianship of P.L. refers to the grandmother having custody of P.L. There is no evidence that P.L. was in her grandmother’s custody for any specific length of time after the private guardianship, but the representation to the court at that time was that P.L. would be in her grandmother’s care. There is no evidence that P.L. left her grandmother’s care before her adulthood. [ 34 ] Mr.

Lee argues that the Government’s limitation argument does not apply to the cause of action based on the Director’s failure to file a service plan and arising out of T.S. That case was not finally decided until 2002, by which time the Limitations Act had been changed to provide that limitations did not run against minors. Mr. Lee submits that this cause of action was not discoverable against the Government until 2002, thus P.L. had until 2 years after turning 18 to commence action on that cause of action (which she did). [ 35 ] That may be the case, but discoverability will turn on the facts.

While both P.L. and her grandmother have sworn affidavits that they were not aware of the trespass and unlawful confinement causes of action until after the statement of claim was filed in 2010, their subjective state of mind is only one of the factors that must be considered with respect to discoverability.

There is an objective test to be met, such that if the grandmother ought to have known about the cause of action (or that she was aware of sufficient facts such that she ought to have commenced proceedings), discoverability may be imputed as at an earlier date. [ 36 ] The facts giving rise to the trespass/unlawful confinement claims arose in 1995, and the grandmother was aware of the complaints of abuse by September 1996.

It is not beyond doubt that the cause of action was not discoverable until the Court of Appeal spoke on the subject. [ 37 ] In any event, the discoverability argument appears to apply only to the trespass/unlawful confinement claims, and not all of the other claims. [ 38 ] I do not think that the “no evidence - no amendment” principle is still applicable to amendments. Douglas , Gouin and Balm , cited above, limited that principle to non-trivial amendments

[ 39 ] Balm suggests that there may be other circumstances where no evidence is necessary to support an application for amendments. Having regard to the foundational rules, it should no longer be necessary to require the filing of an affidavit in support of a motion to amend, where the contents of the affidavit relate to questions of statutes and legal claims or defences, as opposed to claims or defences that are fact driven.

Why require a party to swear and file an affidavit that says “I am advised by my counsel and believe that I may have a valid defence to this action based on the Limitation of Actions Act of 1980”? That is not cost-effective, or even useful. [ 40 ] Each application will have to be determined on the merits. Some applications to amend will require some evidence so that there is an air of reality to the amendment. Others may need no evidence at all, because they are statute or law based. Here, the limitations arguments rely mainly on the

interpretation of limitations legislation. [ 41 ] In any event, there is sufficient evidence put forward on the motion to support arguments that P.L. was in G.G.’s custody such that limitation periods against P.L. may have begun to run in 1996. [ 42 ] Opposition to the proposed amendment on this ground fails. [ 43 ] As to bad faith, I do not see that P.L. can argue bad faith with respect to matters that were not relied on by her, or on representations made to or conduct towards her.

There is no suggestion by P.L. or her grandmother that they held off suing because of any statements attributed to the Minister of Children’s Services in 2004. VI. Result [ 44 ] The Government’s application to amend its statement of defence to add a limitations defence based on its

interpretations of the Limitation of Actions Act , R.S.A. 1980, Ch. L-15, the Limitations Act , S.A. 1996, Ch. L-15.1 and the Limitations Act , R.S.A. 2000, Ch. L-12, is allowed. [ 45 ] It was not unreasonable for P.L. to oppose the application and no costs should be awarded against her for unsuccessfully resisting the Government’s application. Heard on the 8 th day of November, 2011. Dated at the City of Edmonton, Alberta this 7 th day of December, 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