P.L. v. Alberta, 2011 ABQB 821

Court of Queen ’ s Bench of Alberta Citation: P.L. v. Alberta, 2011 ABQB 821 Date: 20111229 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 Plaintiff ’ s Application for

Summary Judgment on her Claims for Trespass and Unlawful Confinement of the Honourable Mr. Justice R.A. Graesser _______________________________________________________ I. Introduction [ 1 ] P.L. has sued the Crown, Thomas Svekla, Mona and John Doe claiming that while under a Temporary Guardianship Order (TGO) in favour of the Director of Child Welfare, 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 after they were apprehended from their mother. [ 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 ] The Crown has defended the claims. P.L. seeks

summary judgment of her claim against the Crown as it relates to trespass and unlawful confinement, relying on the expiry of the TGO because of the Director’s failure to file a service plan in accordance with s. 29(3) of the Child Welfare Act , S.A. 1984, c. C-8.1 [ 4 ] P.L. relies on the Court of Appeal decision in T.S. v. Alberta (Director of Child Welfare , 2002 ABCA 46 , which held that a TGO becomes void if the Director has not filed a care plan with the court within the 30 days following the granting of the TGO. [ 5 ] In P.L. v. Alberta , 2011 ABQB 771 , I dismissed the Crown’s application to declare P.L.’s

summary judgment application to be a nullity, and directed the

summary judgment application to proceed. [ 6 ] In P.L. v. Alberta , 2011 ABQB 772 , I allowed the Crown’s application to amend its Statement of Defence to include a limitation of actions 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.

[ 7 ] The

summary judgment application was heard on November 14, and I reserved decision. II. Chronology of Events [ 8 ] For convenience, I will repeat the chronology of events recited in P.L. v. Alberta , 2011 ABQB 771 at paras. 10 -25 , as they are the facts relevant to the

summary judgment application. [ 9 ] Those facts were taken largely from the affidavit of Connie Zacharias, then a supervisor with Child Welfare who had responsibilities for P.L. [ 10 ] Mona and her husband had been approved as foster parents in April, 1993. Children were placed with them beginning in April 1994. They separated in November, 1994, and Mona continued to foster children as a single parent. [ 11 ] In March, 1995, Mona advised her support worker that she had met Mr. Svekla and was dating him. [ 12 ] P.L. and her brother were apprehended by Child Welfare on May 30, 1995.

On being apprehended, they were placed with Mona. [ 13 ] In late June, 1995, Mona advised the support worker that her new boyfriend, Mr. Svekla, was now staying over at her home several days a week. [ 14 ] A Temporary Guardianship Order was granted with respect to P.L. on July 18, 1995, for a period of six months. [ 15 ] There is no evidence to suggest that a care plan as required under s. 29(3) of the Child Welfare Act was filed with the court within 30 days from the order, or at all. [ 16 ] On December 11, 1995, the support worker’s supervisor learned that Mr. Svekla was actually living with Mona.

He had not been approved as a foster parent and it does not appear that he had applied to do so. The supervisor had concerns about Mr. Svekla’s parenting skills and was also concerned about a recent impaired driving charge. [ 17 ] On December 12, 1995, the 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. [ 18 ] On January 16, 1996, the July 18, 1995 TGO was reviewed.

At that time, the TGO was extended to February 16, 1996 and the review application was adjourned to that date. [ 19 ] On February 16, 1996, the TGO was further extended to March 19, 1996 and the review application was further adjourned to that date. [ 20 ] 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. No care plan was filed in court within 30 days from the granting of this TGO.

[ 21 ] P.L. was placed with her grandmother, G.G., on August 30, 1996. On September 4, 1996 the supervisor received a report from G.G. that P.L. had been sexually abused by Mr. Svekla while she was living in Mona’s home. [ 22 ] On September 17, 1996 G.G. was granted a private guardianship order. Statement of Claim [ 23 ] P.L. turned 18 in early June, 2008. On June 8 , 2010, within 2 years from her 18 th birthday, she filed a Statement of Claim alleging a number of causes of action against the Crown, including: (

a) breach of fiduciary duty to P.L. by placing her with Mona and Mr. Svekla; (

b) negligence in assessing Mona’s and Mr. Svekla’s qualifications to be foster parents; (

c) negligence in failing to train Mona and Mr. Svekla; (

d) negligence in monitoring and supporting Mona and Mr. Svekla; (

e) negligence in not placing P.L. with other family members; (

f) negligence in failing to file service plans for P.L.; (

g) negligence in failing to sue on behalf of P.L.; (

h) misrepresentation to the court as to the Crown’s ability to keep P.L. safe; (

i) misfeasance in public office; (

j) trespass to P.L. by Mona and Mr. Svekla, for which the Crown is vicariously liable; (

k) trespass to P.L. by the Crown because there was no valid and legal court order regarding her; (

l) breach of P.L.’s s. 7 Charter rights; and (

m) breach of P.L.’s rights under the United Nations Convention on the Rights of the Child and the United Nations Universal Declaration of Human Rights. [ 24 ] P.L. seeks general damages of $400,000.00, aggravated, exemplary, punitive and/or symbolic damages of $100,000.00, special damages of $2,000,000.00, various declarations, interest and costs. Statement of Defence [ 25 ] The Crown has defended the action. Mr. Svekla has been noted in default, and Mona has not been required to file a statement of defence as yet.

The Crown’s statement of defence denies that it owed P.L. fiduciary duties, and in any event denies that the Crown breached any duties as alleged, or that it was negligent. It alleges that it at all times acted in P.L.’s best interests. It denies vicarious liability for the actions of Mona and Mr. Svekla.

It denies misrepresenting its abilities to the court and denies that the expiry of the TGOs resulted in an unlawful confinement of or trespass to P.L. [ 26 ] The Crown also argues that P.L.’s claims have been barred by amendments to the Child Welfare Act (following T.S. ), S.A. 2002, Ch. 10, s. 31.1 , which amendments purport to validate all TGOs granted before the amending act, regardless of whether care plans had been filed in a timely way or at all.

[ 27 ] The Crown seeks contribution and indemnity from Mona and Mr. Svekla, which will require a determination of proportionate fault. [ 28 ] As a result of my decision in P.L. v. Alberta , 2011 ABQB 772 , the Crown argues that P.L.’s claims are barred by reason of the provisions of the various limitations of actions statutes in force at the relevant times. [ 29 ] Essentially, the limitations defence is based on the Limitation of Actions Act , R.S.A. 1980, Ch. L-15. Under that Act, limitations ran against minors for discoverable claims so long as they were in the custody of a parent or guardian.

The Crown argues that P.L. was in the custody of her grandmother, G.G., who knew of the sexual assault allegations against Mr. Svekla while P.L. was in the custody of Mona. Test for

Summary Judgment [ 30 ] The parties are agreed on the appropriate test for

summary judgment. For the purposes of this application, the Plaintiff relies on Rule 7.3(1): A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it. [ 31 ] Encana Corporation v. ARC Resources Ltd. , 2011 ABQB 431 is relied on by the Plaintiff both as to the test for

summary judgment and for rules on statutory

interpretation. [ 32 ] In Encana , Kent J. cited with approval Manufacturers Life Insurance Co. v. Executive Centre at Manulife Place Inc. , 2011 ABQB 189 , for the principle that the test for

summary judgment under the new rules is the same as under the old rules. [ 33 ] Kent J. referred to one of the most recent Court of Appeal decisions on

summary judgment, being Tottrup et al v. Clearwater No. 99 (Municipal District) , 2006 ABCA 380 . The moving party must establish on a balance of probabilities that there is no genuine issue for trial. The burden then shifts to the responding party to show that there really is a genuine issue for trial. The test has been stated in many ways, but Tottrup at para. 10 states that “it must be beyond doubt that no genuine issue for trial exists”. Other cases use “plain and obvious”, “clear” and “beyond real doubt” to express the same basic concept. [ 34 ] Canada (Attorney General) v.

Lameman , 2008 SCC 14 states that: It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial. [ 35 ] The Crown cites Encana for the principles that (citing from its argument): (

a) the Plaintiff must show that it is beyond doubt that no genuine issue for trial exists; (

b) if the judge must assess the quality and weight of the evidence to arrive at

summary judgment, the “beyond doubt” standard is not met;

(

c) summary judgment is inappropriate to decide a significant question of law involving the definitive

interpretation of a legislativeprovision; and (

d) summary judgment should be denied where a determination of the issue requires a careful analysis of a complex legal test. Plaintiff’s Argument [36] Mr. Lee argues on behalf of P.L. that there is no issue that the Director failed to file a care plan for P.L. within the timerequired by s. 29(3) of the Child Welfare Act, S.A. 1984, Ch. C-8.1, or at all, following the granting of a Temporary Guardianship Orderto the Director of Child Welfare. Following the Court of Appeal’s decision in T.S. v. Alberta (Director of Child Welfare), 2002 ABCA46, the Crown’s TGO became void. [37] Mr.

Lee argues that as a consequence, the continued keeping of P.L. in the child welfare system and specifically without avalid court order, constituted trespass to and unlawful confinement of P.L. Because these are essentially strict liability torts, P.L. doesnot have to prove negligence, breach of fiduciary duty or other fault on the part of the Crown. All that remains is an assessment of P.L.’sdamages. [38] Because the

summary judgment rules 7.2 - 7.4 permit applications “in respect of all or part of a claim” and because theessential elements of trespass and unlawful confinement are made out in P.L.’s affidavit and through admissions of the Crown, Mr. Leesubmits that P.L. is entitled to judgment to the effect that the Crown committed trespass on her and unlawfully confined her. [39] P.L. refers to F. (B.) v. Saskatchewan Rivers School Division No. 119, 2000 SKCA 117, with respect to the elements of thetort of assault and battery or trespass. In that case, the Saskatchewan Court of Appeal cited M.(K.) V.

M. (H.), [1992] S.C.R. 3 and Cookv. Lewis, (SCC), [1951] S.C.R. 830, quoting at para. 16: ...where a plaintiff is injured by force applied directly to him by the defendant his case is made by proving this fact and the onus fallsupon the defendant to prove “that such trespass was utterly without his fault”. In my opinion Stanley v. Powell rightly decides that thedefendant in such an action is entitled to judgment if he satisfies the onus of establishing the absence of both intention and negligence onhis part.” [40] In Stanley v.

Powell, 91891) 1 Q.B.D. 86 (H.L.), Lord Denman stated at pp. 92-3: ...if the act that does an injury is

an act of direct force vi et armis, trespass is the proper remedy (if there is any remedy), where the act iswrongful either as being wilful or as being the result of negligence.

Where the act is not wrongful for either of these reasons, no actionis maintainable, although trespass would be the proper form of action if it were wrongful.” [41] After reviewing these decisions, the Saskatchewan Court of Appeal concluded at para. 18 that: ...it is clear that the necessary elements of an action for trespass include the direct application of force by the defendant to the person ofthe plaintiff and intention on the part of the defendant with respect to the consequences of his wrongful act.

The distinction between anaction for trespass to the person and other torts, including an action for negligence, remains alive and well in Canada. Crown’s argument [42] The Crown argues that

summary judgment should be denied here on the bases that:

(

a) the Plaintiff’s pleading still requires amendment; (

b) there are serious triable issues as to whether the causation requirement is met - whether any fault on the Crown’s

part is theeffective legal cause of any damage to P.L.; (

c) any failure to file a care plan is the most remote factor that could have caused harm to P.L.; (

d) other factors referred to in the Statement of Claim include A. Mr. Svekla’s abuse; B. Mona’s concealment of her relationship with Mr. Svekla and her failure to respond to his abuse; C. The Province’s decision to place P.L. in Mona’s house; D. The Province’s failure to monitor conditions at the house; and E. The Province’s failure to pursue legal remedies after disclosure of the abuse; and these factors need to be considered in thecontext of any causation analysis which all need to be resolved. (

e) the limitation defence requires a factual matrix beyond the affidavits which have been filed; (

f) there needs to be a fault allocation among the various defendants; (

g) the Child Welfare Amendment Act, 2002 (No. 2), S.A. 2002, c. 10, negates any wrong creating the foundation for P.L.’s trespassor false imprisonment claims; and (

h) there are other issues requiring trial, including whether retaining custody of a child on a void TGO can be “translated” to be atrespass or unlawful confinement. [43] The Crown argues that P.L. was abandoned by her parents, so the Crown has used no force in taking charge of the child. Inthese circumstances, the Crown argues that the parens patriae jurisdiction of the Crown may shield them from liability for essentially“taking charge” as opposed to having removed the child from parental care.

The Crown cites Winnipeg Child and Family Services v.K.L.W., 2000 SCC 48 , [2000] 2 S.C.R. 519. [44] In that regard, the Crown points to the affidavit evidence of Connie Zacharias that P.L. was brought to Child Welfare by G.G.,in whose care P.L. had been left by her mother, when G.G. determined that she was not able to care for P.L. There is no evidence of anyefforts by the mother to regain care and custody of P.L. There is no evidence of any efforts on the part of G.G. to get guardianship andcustody of P.L. until after she had been removed from Mona’s home. Plaintiff’s Response [45] Mr.

Lee responded to the Crown’s arguments, submitting that the “failure to file” care plans constituted the torts of trespassand false imprisonment. Causation is not relevant to the finding of the torts and instead is something that can be dealt with at the damageassessment portion of the matter. [46] He further argues that no pleading amendments are necessary, because the pleadings in relation to trespass and falseimprisonment are complete and any required amendments relate to other causes of action which may or may not be pursued.

I agree withthat position. [47] The determination of the other causes of action in P.L.’s Statement of Claim, and the Crown’s wish to have liabilityapportioned among the defendants, should not bar or delay the Plaintiff’s ability to obtain a timely remedy against the Crown.

[ 48 ] As to the limitation defences raised by the Crown, Mr. Lee states that the “failure to file” cause of action could only have been determined or been discoverable following the Court of Appeal’s decision in T.S. in 2002. By that time, the limitation legislation had been amended to provide that limitation periods did not run against minors, and P.L. sued within two years from attaining adulthood.

As such, the limitation arguments apply (if at all) to the other causes of action and not the consequences of the Director’s failure to file care plans. [ 49 ] As for the Crown’s argument that the amendments to the Child Welfare Act in 2002, following T.S. , negate any wrong arising out of the failure to file, Mr. Lee refers to a number of Hansard excerpts from various Government members to the effect that the amendments are a “temporary fix to allow those situations to be regularized so that the children in care can continue to be dealt with in an appropriate and legal manner”.

Analysis [ 50 ] On the evidence on this application, the Plaintiff has proven on a balance of probabilities that no care plan was filed with respect to the TGO which resulted in P.L. being placed with Mona. That order became void. That left P.L. in Government care without any valid court order in effect. [ 51 ] The TGO became void on August 18, 1995. That was a time fairly early in the relationship between Mona and Mr. Svekla. The evidence on this application is to the effect that P.L. was abused by Mr. Svekla in the same month that she was removed form Mona’s home (cross-examination transcript).

That would have been December, 1995, a time after the TGO had become void. [ 52 ] Certainly, for the purposes of this application, the evidence satisfies me on a balance of probabilities that P.L. was abused by Mr. Svekla after the TGO had become void. [ 53 ] It is no stretch of logic to conclude that had P.L. not been placed with Mona after she went into government care, she would not have been abused by Mr. Svekla. [ 54 ] There is no direct connection, however, between the failure to file a care plan and P.L. continuing to be in Mona’s home after August 18, 1995.

A care plan might well have contemplated that circumstance. [ 55 ] There is also no direct connection between the failure to file and the abuse suffered by P.L. and the consequences of that abuse. [ 56 ] The Plaintiff’s argument is a technical one, based on the submission that the Crown’s continued custody of P.L. in the face of a void TGO constitutes trespass to her, and/or the tort of false imprisonment. [ 57 ] There is no Canadian authority to the effect that placement in government care without statutory authority is false imprisonment. In Trevorrow v.

South Australia No. 5 , [2007] SASC 285, the court found that Trevorrow had been imprisoned by being controlled in his freedom of movement arising from his foster placement and not being returned to his parents, even though the plaintiff there lacked the maturity or ability to discover that he was entitled to be returned to his parents.

Significant damages were awarded against the State. [ 58 ] There are certainly some similarities between the case at bar and Trevorrow , and the logic in that case, on the facts of that case, is compelling. [ 59 ] However, that is an Australian case at the trial level only, and it is of no authority in Alberta. It is interesting to note that the Federal Court of Australia considered it relevant in dismissing a similar claim, that the plaintiff’s removal may have been with his

mother’s consent: Cubillo v. Commonwealth of Australia, [2000] FCA 1084. [60] Illingworth Estate v. Humber Memorial Hospital, 1999 CarswellOnt 166 (Divisional Court) and Cochlin v. Alberta, 1983CarswellAlta 464 (Q.B.) do not support the Plaintiff’s claim, but are potentially distinguishable on their facts and the relevant legislativeprovisions. [61] More importantly for the purposes of this application is the basis for claims of trespass. As noted in F.(B.) referred to above,trespass involves the direct application of force.

In the early development of tort law, claims in trespass for damages for the directconsequences of the application of force were distinguished from claims in “case” which provided remedies for assault (which did notrequire the application of force) and false imprisonment so long as the plaintiff could prove that the defendant’s conduct was wrongful. [62] F.(B.) stated that the distinction between trespass and case is now obsolete (at para. 20).

Klar, in Tort Law, 4th Ed. (Toronto:Carswell, 2008) states at p. 28 that “the historical differences between trespass and case have survived in Canadian tort law”, and that itis still necessary to distinguish between injuries which are caused directly and indirectly, and those which have been caused intentionallyor negligently. [63] There is no evidence in this case that there was any intentional application of force to P.L. by the Crown after the TGObecame void on August 19, 1995.

While the intentional application of force may not be necessary to establish a claim for falseimprisonment, it may still be necessary to establish a claim for trespass. [64] Claims for false imprisonment require that the plaintiff first prove that: (

a) the plaintiff was totally deprived of his or her liberty; (

b) the deprivation was against his or her will; and (

c) the deprivation was directly caused by the defendant: S.(C.H.) v. Alberta (Director of Child Welfare), 2008 ABQB 513 at para53. [65] So far so good for the Plaintiff. But false imprisonment does not end there. If the plaintiff has met the burden of establishingthe three above elements, the defendant still has an opportunity to avoid liability if it can prove justification: Klar at p. 58; H.(V.A.) v.Lynch, 2008 ABQB 448. [66] While Muir v.

Alberta, (1996), (AB KB), 179 A.R. 321 (Q.B.) may support the plaintiff’s falseimprisonment claim, Veit J. based liability there on the bases that the plaintiff’s admission and continued confinement violated thestatute authorizing such detentions, and that the government was negligent and in breach of its fiduciary obligations to the plaintiff.

False imprisonment was not found simply because the statute had been violated. [67] While as with trespass, damages are presumed with cases of false imprisonment or unlawful confinement (Klar at p. 58), thereis no evidence of any direct application of force, so proving trespass is uncertain, and the Crown’s statement of defence essentiallyalleges justification and the absence of any negligence or breach of fiduciary duty towards P.L.

Those are factual matters and it cannotbe said that the defence is hopeless, at least at this stage of the proceedings, as there has been no meaningful questioning as yet. [68] A further complication is the issue as to whether P.L.’s mother and grandmother G.G. consented (or might be deemed to haveconsented) to P.L. being in government care.

The present facts suggest that the mother had no ability to care for P.L. and G.G. took P.L.to Child Welfare as she considered herself unable at the time to continue to care for her. [69] Even applying Trevorrow leaves unresolved the issue of consent and potential justification. These are factual issues. Indeed,the evidence so far suggests that there may have been consent of some sort, and a practical inability to return P.L. to a parent or

guardian. These issues require a stronger evidentiary foundation for a court to be able to make a proper determination as to consent or the absence of consent. [ 70 ] I am thus led to the conclusion that

summary judgment is not available to the Plaintiff here, at this stage of the lawsuit. In my view, it is arguable that there was no trespass to P.L., as there is no evidence of the direct application of force. [ 71 ] It is and remains arguable that P.L.’s continued detention in government care after the TGO became void was an unlawful confinement or false imprisonment.

However, even if Trevorrow and Muir could be interpreted as leading to that consequence, the Crown may still have an opportunity to establish justification, and perhaps the absence of negligence or breach of fiduciary duty. [ 72 ] With these issues, it cannot be said that the Plaintiff has proven on a balance of probabilities that the Crown has no defence to the trespass or false imprisonment claims.

The Crown may not succeed, but it has defences which are, at this stage of the proceedings, at least arguable, and it cannot be said that it has no chance of success on such defences. [ 73 ] That being the case, it is not strictly necessary for me to rule on the Crown’s other objections to

summary judgment. [ 74 ] My decision in P.L. v. Alberta , 2011 ABQB 772 , analyzes the Crown’s limitation defences, and it cannot be said that the Crown’s position is hopeless. It is certainly arguable. Discoverability is a question of fact, and there are both objective and subjective elements to it. Evidence from G.G. is not determinative on the point, and at a minimum, there would likely have to be some analysis of when the Alberta Provincial Court began to make findings similar to the ultimate ruling in T.S.

That analysis is not present in the materials before me, so it cannot be determined with any degree of proof, when a plaintiff ought to have known that the failure to file a care plan was actionable against the Director. [ 75 ] As for the effects of the amendments to the Child Welfare Act , the wording of the Act supports the Crown’s argument that there can be no civil consequences to a TGO that became void only because a care plan was not filed in time. Hansard discussions certainly suggest the contrary, but pre-legislation debate is only one of a number of factors used in the

interpretation of legislation. As noted in Encana at para. 27, “courts must take care not to give undue weight to such extrinsic materials considering the political nature of legislative debate and the fact that individual statements may not reflect the intent of the legislature as a whole”. [ 76 ] The Hansard statements are strong, and come from key ministers (Justice and Children’s Services) but by themselves, it cannot be said that the Crown’s suggested

interpretation is bound to fail, or is not arguable. Result [ 77 ] For these reasons, the Plaintiff’s application for

summary judgment on the trespass and false imprisonment claims must fail. The Crown is entitled to its costs of the application. Heard on the 8 th day of November, 2011. Dated at the City of Edmonton, Alberta this 29 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 and Kate Bridgett Alberta Justice for the Defendants