GH v. Alcock, 2012 ABQB 166

Court of Queen ’ s Bench of Alberta Citation: GH v. Alcock, 2012 ABQB 166 Date: 20120308 Docket: 0903 17941 Registry: Edmonton Between: GH Plaintiff/Respondent - and - Laura Alcock , Richard Ouellet, Abdelmoniem Abdelrahim, Her Majesty the Queen in Right of Alberta, as represented by the Director of Child Welfare, Edmonton and Area Child & Family Services Authority, Region 6, Rick Semel and Gord Johnston CEOs Region 6, Dr.

J.R. (Dick) Frey, Joseph (Archie) Arcand and Brian Hjilesvold, Heather Forsythe, Minister of Children ’ s Service, Maria David Evans, ________, Shelene Hlus, Boys ’ Club of Edmonton (now called The Boys ’ and Girls ’ Club of Edmonton), Boyle Street Community Services, The Public Trustee, James R.

Weir, Rod Wasylyshyn, Lara Levesque, Ogilvie LLP, Perlita Torres, David Billingsley and John Doe Defendants/Applicants 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.

Corrected judgment: A corrigendum was issued on March 9, 2011; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment Re the

Summary Judgment Application of the Ogilvie Defendants of the Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ I. Introduction and Procedural History..................................................................... Page: 3 II. Background Facts.................................................................................................. Page: 4 III. The Law................................................................................................................... Page: 5 IV.

Issues...................................................................................................................... Page: 7 V. Analysis................................................................................................................... Page: 7 1. Have the Ogilvie Defendants met their evidentiary burden to establish a prima facie case for

summary dismissal of the Action as against them?............................... Page: 7 (

a) The Wasylyshyn Affidavit and questioning on that Affidavit....... Page: 7 (

b) The Weir Affidavit and questioning on that Affidavit................... Page: 8 2. Is there any admissible evidence upon which GH may rely to resist the application by the Ogilvie Defendants? ................................................................................. Page: 9 (

a) Can GH question Lara Levesque?.............................................. Page: 9 (

b) The DeAngelis Report................................................................. Page: 11 (

c) The GH Affidavit........................................................................... Page: 12 3. Has GH demonstrated that there is arguable merit to her claims against the Ogilvie Defendants which raise a genuine issue for trial?.................................................... Page: 13 VI. Conclusion............................................................................................................ Page: 15 I. Introduction and Procedural History

[ 1 ] This claim arises out of a sexual assault which is alleged to have occurred in April 2006, when the Plaintiff GH was sixteen years old and subject to a Permanent Guardianship Order (“PGO”). The Plaintiff alleges that she was sexually assaulted by an employee of the Boys’ and Girls’ Clubs of Edmonton. The incident was brought to the attention of Alberta Children’s Services, which in turn passed on information about the alleged assault to the Public Trustee.

The Public Trustee retained the Edmonton law firm of Ogilvie LLP to provide a legal opinion (the “Ogilvie Opinion”) as to whether the Public Trustee ought to commence legal proceedings on GH’s behalf.

Based on the Ogilvie Opinion, and on the fact that GH had turned 18 years old in the meantime, the Public Trustee declined to commence a lawsuit. [ 2 ] GH then started Action No. 0903 17941 (the “Action”) against a number of individuals, government agencies, and other organizations, including Alberta Children’s Services, the Public Trustee Rod Wasylyshyn, Lara Levesque and Ogilvie LLP (I will refer to the latter as the “Ogilvie Defendants”). The Action involves a number of different claims including negligence and breach of fiduciary duty.

Some aspects of the Action can be characterised as a “failure to sue”, similar to the claims advanced in the class proceeding which I have certified in T.L. v.

Alberta (Child, Youth and Family Enhancement Act, Director) , 2008 ABQB 114 , aff’d 2009 ABCA 182 . [ 3 ] On February 1, 2010, the Action was taken into case management under my direction and the matter was stayed by order (the “February 2010 CMO”). [ 4 ] At the next case management meeting held on March 31, 2011, which was attended by counsel for most of the parties, the lawyers for the Ogilvie Defendants, James Weir and the Public Trustee requested that I consider lifting the stay imposed by the February 2010 CMO to allow them to apply for

summary dismissal of GH’s claims against all of these Defendants. [ 5 ] At the conclusion of the March 31, 2011, case management meeting I granted an order (the “March 2011 CMO”) giving the Ogilvie Defendants, James Weir and the Public Trustee leave to apply “to lift the stay [in the February 2010 CMO] for the purposes of bringing

summary judgment applications and to make application for

summary judgment”. The March 2011 CMO also set out deadlines for the steps to be taken in the lead-up to three days of hearings on the

summary dismissal motions in the Fall of 2011. It was not possible to set dates at the time the March 2011 CMO was made because the Court’s Fall sitting

schedule had not yet been released. [ 6 ] The March 2011 CMO also granted leave to the Plaintiff to apply to lift the stay “for the purposes of bringing advanced funding, questioning, designation of the case as complex and adjournment applications”. No specific

schedule was directed for the taking of steps necessary to prepare such applications for hearing nor were they specifically set to be heard in the Fall of 2011. [ 7 ] On June 23, 2011, GH filed an application which sought a variety of relief but did not seek to lift the stay imposed in the February 2010 CMO. GH’s application did not deal with the request to have the case dealt with as complex nor were any adjournments sought at that time.

In a rather odd request, the June 23 rd application of GH sought a stay of the March 2011 CMO which, if granted, would have eliminated the authority to bring the June 23 rd motion in the first place. [ 8 ] On August 17, 2011, the Ogilvie Defendants filed their application seeking to lift the stay for the purposes of bringing a

summary judgment application, which by then had been scheduled to be heard from October 19 to 21, 2011. I am satisfied that the Ogilvie Defendants complied with the timelines set out in the March 2011 CMO. [ 9 ] On September 15, 2011, GH filed an additional application to request that one of the Ogilvie Defendants, Ms. Lara Levesque, attend for questioning, and to require Mr. James Weir of the Office of the Public Trustee to provide answers to questions which had been objected to at his August 2011 questioning session.

Again, no request to lift the stay was included in this application. [ 10 ] This decision deals with the applications brought by the Ogilvie Defendants to lift the stay ordered in the February 2010 CMO and to apply for

summary judgment under Rule 7.3 of the Alberta Rules of Court (the “Rules”). I also deal with the September 15, 2011 motion by GH to have Ms. Levesque attend for questioning.

II. Background Facts [ 11 ] The Plaintiff GH was made subject to a PGO in April 2006. That PGO terminated in November 2007 on the date of her 18 th birthday. [ 12 ] On December 28, 2006, the Public Trustee received a referral from Alberta Children’s Services (the “Referral Letter”) which related specifically to an alleged sexual assault said to have occurred on or about April 28, 2006, and which had been investigated by Alberta Children’s Services.

Other allegations of previous sexual assaults unrelated to the April 2006 assault were also mentioned in the Referral Letter. [ 13 ] On March 13, 2007, the Public Trustee retained Ogilvie LLP and specifically Rod Wasylyshyn, a partner of that firm, to provide an opinion (which ultimately became known as the Ogilvie Opinion) as to the merits of bringing an application under the Victims of Crime Act, RSA 2000, c V-3 (the “ VCA ”) as well as a potential tort claim arising from the alleged sexual assault on GH. The Public Trustee also asked Mr.

Wasylyshyn to consider whether bringing any action on GH’s behalf would be in her best interests. [ 14 ] On November 27, 2007, and shortly after GH’s 18 th birthday, the Public Trustee received the Ogilvie Opinion. In the Ogilvie Opinion, Mr. Wasylyshyn recommended that the Public Trustee seek permission from GH to submit an application for compensation under the VCA before a limitation period expired on April 28, 2008, which was two years after the date of the alleged assault. The Ogilvie Opinion did not recommend commencing a civil claim on behalf of GH because it was Mr.

Wasylyshyn’s view that such action would not be in her best interest. The Ogilvie Opinion has been produced in this application. [ 15 ] Once GH turned 18 years of age, the Public Trustee lost jurisdiction to act on her behalf.

Nevertheless, the Public Trustee instructed the Ogilvie Defendants to prepare an application for compensation under the VCA while continuing their attempts to contact GH to advise her of the results of the investigation, the substance of the Ogilvie Opinion and the relevant limitation periods for commencing her own claim. [ 16 ] Despite numerous attempts to meet GH, who did not attend several scheduled meetings, the Public Trustee initiated an application on GH’s behalf under the VCA because of concerns about the approaching limitation period.

The Ogilvie Defendants prepared the application for signature by the Public Trustee, which was submitted on April 2, 2008. [ 17 ] In a letter dated May 14, 2008, the Public Trustee advised GH that it had filed an application on her behalf. This letter also advised that while the Public Trustee had not started a lawsuit on GH’s behalf, she could do so herself before the limitation period expired on her 20 th birthday. [ 18 ] In August 2008, GH contacted the Public Trustee’s Office and requested a copy of her file. On September 12, 2008, the Public Trustee authorized Mr.

Wasylyshyn to release the file to GH and on October 13, 2008, that file was provided to Mr. Lee, counsel for GH. [ 19 ] GH commenced her own application under the VCA and did not pursue the application filed by the Public Trustee. [ 20 ] GH commenced this Action on November 13, 2009, fourteen months after she had been provided with a copy of the Ogilvie Opinion and related file and shortly before she turned 20 years of age, the date upon which the limitation period would have expired. [ 21 ] GH claims that the Ogilvie Defendants owed her a fiduciary duty to provide a legal opinion that was in her best interest.

She further claims that the Ogilvie Defendants breached their fiduciary duty to her by failing to consider a number of factors, to obtain certain information and to speak directly with her, before recommending to the Public Trustee that commencing a lawsuit was not in her best interest. She also claims that the Ogilvie Defendants breached a general duty of care that they owed to her in preparing the Ogilvie Opinion.

III. The Law [ 22 ] This application for

summary judgment is brought under Rule 7.3: 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; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded. [ 23 ] The application must be supported by an affidavit swearing positively that one or more of the above grounds have been met, or by other evidence to the effect that the grounds have been met: Rule 7.3(2). [ 24 ] The law applicable to this Application is well-established. The relevant principles are set out in paragraph 17 of Murphy Oil Company Ltd. v. Predator Corporation Ltd., 2004 ABQB 688 , aff’d 2006 ABCA 69 : 1. A party bringing a motion for

summary judgment bears the legal onus of showing that there is no genuine issue for trial. 2. There is no onus on the responding party to prove a genuine issue for trial. 3. If the applicant for

summary judgment discharges his/her onus on the material filed, a respondent who does not resist the application through admissible evidence risks judgment against him/her. That is an evidentiary burden. 4. There is no obligation on the respondent to file material. He/she can accept the risk described above. If the applicant fails to discharge his/her legal onus, the application will fail. 5. More commonly a respondent will provide admissible evidence opposing the motion.

In that event, the court will consider all the evidence to determine whether the applicant has shown that there is no genuine issue for trial. [ 25 ] See also Canada (Attorney General) v. Lameman , 2008 SCC 14 at para 11 . [ 26 ] When considering an application for

summary judgment, the Court has an obligation to conduct a careful review to determine whether there are undisputed facts sufficient to resolve the matter, even when the action is complex: Encana Corporation v ARC Resources Ltd , 2011 ABQB 431 at para 9 , referring to De Shazo v Nations Energy Co , 2005 ABCA 241 at para 18 , 367 AR 267.

Where there is no factual dispute, there is no purpose to a trial as the parties can advance their legal arguments as effectively in a special chambers application as they could at the conclusion of a trial: Manufacturers Life Insurance Co v Executive Centre at Manulife Place Inc , 2011 ABQB 189 (“ Manulife ”) at para 11. [ 27 ] Rule 7.3 operates in the same manner and follows the same legal principles as its precursor Rule 159: Kwan v. Superfly Inc. , 2011 ABQB 343 at para 20 , Manulife at para 11; BA Capital Inc v Stream Oil & Gas Ltd, 2011 ABQB 91 (Master) at paras 3-4 .

[ 28 ] As Applicants, the Ogilvie Defendants bear the legal burden of demonstrating that there is no merit to the claims made against them in the Action. If the Ogilvie Defendants discharge their evidentiary burden, then GH must either refute or counter the Defendants’ evidence or risk having her Action dismissed as against the Ogilvie Defendants. IV. Issues [ 29 ] The following issues arise for decision:

(1) Have the Ogilvie Defendants met their evidentiary burden to establish a prima facie case for

summary dismissal of the Action as against them?

(2) Is there any admissible evidence upon which GH may rely to resist the application by the Ogilvie Defendants?

(3) Has GH demonstrated that there is arguable merit to her claims against the Ogilvie Defendants which raises a genuine issue for trial? V. Analysis 1. Have the Ogilvie Defendants met their evidentiary burden to establish a prima facie case for

summary dismissal of the Action as against them? [ 30 ] While GH has made a number of allegations against the Ogilvie Defendants, the claims may be grouped into two main categories: negligent conduct and breach of fiduciary duty causing damage. A number of sources of evidence need to be analyzed before coming to a conclusion on whether the Ogilvie Defendants have met their evidentiary burden to warrant

summary dismissal of the claims against them. (

a) The Wasylyshyn Affidavit and questioning on that Affidavit [ 31 ] Pursuant to the directives contained in the March 2011 CMO, Mr. Wasylyshyn swore an affidavit on May 11, 2011 (the “Wasylyshyn Affidavit”) in support of the

summary dismissal application. The Wasylyshyn Affidavit was made on behalf of all of the Ogilvie Defendants. [ 32 ] In the Wasylyshyn Affidavit, the deponent stated that he had been contacted by Mr. Weir of the Public Trustee on March 13, 2007, for the purpose of retaining Ogilvie LLP to conduct an independent review of the merits of bringing an application under the VCA as well as any tort claims or other actions on GH’s behalf. After conducting his review, Mr. Wasylyshyn provided Mr. Weir with the Ogilvie Opinion on November 21, 2007. In the Ogilvie Opinion, Mr.

Wasylyshyn recommended that the Public Trustee seek permission from GH and her guardian to submit a claim under the VCA . Mr. Wasylyshyn then prepared an application under the VCA , which was submitted by the Public Trustee on behalf of GH to ensure that her claim was filed before the expiry of the limitation period. Mr. Wasylyshyn had no further dealings with GH until August 17, 2008, when she contacted his office to request a copy of the legal file.

[ 33 ] I have examined the Wasylyshyn Affidavit and it contains no admissions upon which GH might rely to establish any elements of negligence or breach of fiduciary duty as against the Ogilvie Defendants. Indeed, Mr. Wasylyshyn swears positively that he knows of no facts that would substantiate GH’s claims against the Ogilvie Defendants. [ 34 ] On August 9, 2011, and pursuant to the provisions of the March 2011 CMO, Mr. Wasylyshyn was questioned on the Wasylyshyn Affidavit by Mr. Lee. The transcript of that questioning is 147 pages in length. I observe that Mr. Wasylyshyn was never asked by Mr.

Lee to confirm that he had, in fact, sworn the Wasylyshyn Affidavit but I have proceeded on the basis that he did. Most of the undertakings requested by counsel for GH were either refused, objected to, or taken under advisement. On September 15, 2011, Mr. Lee filed a further set of applications in the matter but did not in those applications seek to compel Mr. Wasylyshyn to respond to the questions in respect to which objections had been lodged by his counsel at the August 2011 questioning nor did Mr.

Lee pursue any responses to any outstanding undertakings arising from that questioning session. [ 35 ] Based on my review of the Wasylyshyn Affidavit and the lengthy transcript of questioning from the August 2011 session, I am not able to see any responses by Mr. Wasylyshyn which could be considered admissions on the part of any of the Ogilvie Defendants. None of the counsel involved could point me to any clear admissions which relate to whether the Ogilvie Defendants either owed a duty to GH or had breached that duty.

Accordingly, I conclude that there is no evidence in these materials which demonstrates to my satisfaction that there exists a genuine issue to be tried as against any of the Ogilvie Defendants. (

b) The Weir Affidavit and questioning on that Affidavit [ 36 ] Pursuant to the March 2011 CMO, James R. Weir of the Office of the Public Trustee also swore an affidavit on May 11, 2011 (the “Weir Affidavit”). Although the Weir Affidavit was filed in support of the Public Trustee’s application to lift the stay and for

summary judgment (both of which I will decide in a separate decision), the Ogilvie Defendants agreed through their counsel that the Court could refer to both the Weir Affidavit and the questioning of Mr. Weir on his Affidavit to determine whether there is any evidence of a genuine issue for trial as against the Ogilvie Defendants. [ 37 ] I have scoured the Weir Affidavit and cannot find any admissions which would relate to or establish any genuine issue for trial in relation to the Ogilvie Defendants. [ 38 ] Further, I have also examined the transcript of the questioning of Mr. Weir on August 23, 2011.

That transcript is 105 pages in length. Counsel for Mr. Weir objected to many of the questions asked by Mr. Lee. The status of those objections was argued before me on Friday, October 21, 2011. I ruled that all of the objections were sustained and that Mr. Weir did not have to answer any of Mr. Lee’s questions. [ 39 ] I conclude that the Weir Affidavit and the questioning upon that affidavit do not disclose any evidence of a genuine issue for trial as this material may relate to the Ogilvie Defendants. [ 40 ] In

summary, I conclude that the Ogilvie Defendants have met their evidentiary onus in showing that there is no genuine issue for trial. 2. Is there any admissible evidence upon which GH may rely to resist the application by the Ogilvie Defendants? [ 41 ] Since I have concluded that the Ogilvie Defendants have met their evidentiary burden in respect to establishing that there is no genuine issue, I must now examine any admissible evidence generated or referred to by GH to establish her claims as being ones with a real chance for success. As stated by the Alberta Court of Appeal in Poliquin v Devon Canada Corp , 2009 ABCA 216 at para 12 , 454 AR 61:

To meet the evidentiary burden and either refute or counter the defendant’s evidence, a plaintiff must “establish his claim as being onewith a real chance of success”: Guarantee Co. of North America v. Gordon Capital Corp., (SCC), [1999] 3 S.C.R. 423 at para. 27, 178 D.L.R. (4th) 1; and Hercules Managements Ltd. v. Ernst & Young, (SCC), [1997] 2 S.C.R. 165 at para. 15, 146 D.L.R. (4th) 577. [42] A number of preliminary issues arose while hearing the various applications on October 19 through 21, 2011, one of which Iwill deal with in the course of reviewing whether there is any additional evidence that may refute the evidence of the OgilvieDefendants. (

a) Can GH question Lara Levesque? [43] Lara Levesque is an associate at Ogilvie LLP. She assisted Mr. Wasylyshyn in preparing the Ogilvie Opinion. [44] On September 15, 2011, counsel for GH filed an application for an order that Ms. Levesque attend for questioning on thegrounds that she “refuses to attend for questioning even though she is the only person capable of answering certain questions that arenecessary for the

summary judgment application”. This motion did not include a request to lift the stay imposed by the February 2010CMO, nor was any material filed in support of the application such as specific references to the extensive questioning of Mr. Wasylyshynon August 9, 2011. [45] On October 4, 2011, I directed all counsel in correspondence dealing with the sequence for hearing the various motions onOctober 19 to 21 that I would hear both of the Defendants’ applications for

summary judgment before any of Plaintiff’s applications,including the rather late-breaking motion by GH to have Ms. Levesque attend for questioning. [46] I did consider Mr. Lee’s application to question Ms. Levesque as a preliminary matter on October 19, and more fully onOctober 21, 2011. On both occasions, Mr. Lee took the position that he was unable to properly resist the Ogilvie Defendants’

summaryjudgment application without first having had the opportunity to question Ms. Levesque. [47] As stated above, Mr. Lee’s motion was more fully argued on October 21, 2011. At that time, Mr. Lee took the position thatthe Wasylyshyn Affidavit was deficient because it relied on hearsay statements from Ms. Levesque and therefore, constituted noevidence at all. He further argued that he is entitled to examine Ms. Levesque in any event. [48] Mr. Cranston, counsel for the Ogilvie Defendants, resisted the application to produce Ms. Levesque for questioning on thegrounds that Ms. Levesque did not swear an affidavit in support of the

summary judgment application. Mr. Cranston stated that theOgilvie Defendants were prepared to stand on the evidence which had been provided in support of their application and that they werenot prepared to submit Ms. Levesque to questioning. Mr. Cranston pointed out that Mr. Wasylyshyn was authorized to provide evidenceon his own behalf as well as on behalf of his law firm Ogilvie LLP and his associate, Ms. Levesque. Mr. Cranston argued that theevidence contained in the Wasylyshyn Affidavit is sufficient to meet the applicable test on a

summary dismissal application and that Ms.Levesque should not be required to submit to questioning at this stage of the litigation. [49] I agree with Mr. Cranston that the Ogilvie Defendants’ application must stand or fall on the evidence which they have broughtforward. I have concluded already that there is sufficient evidence in the Wasylyshyn Affidavit to meet their evidentiary burden forsummary dismissal. I will not direct Ms. Levesque to attend for questioning on either an affidavit to which she did not swear, or directlyas a party to the Action for the purposes of this

summary judgment application. There is nothing before me to suggest that Mr. Leeserved Ms. Levesque with a Form 29 Notice of Appointment for Questioning pursuant to Rule 5.21(1), or that she refused to attend. [50] As a further reason for rejecting the September 15 motion of GH to question Ms. Levesque, I observe that the WasylyshynAffidavit had been filed on May 13, 2011 and was made available to Mr. Lee shortly thereafter. Therefore, counsel for GH had ample time to identify areas of questioning for Ms. Levesque and could have quite easily included that request in the June 23rd motion. Instead,

he brought his application well past the August 31 deadline for filing materials set out in the March 2011 CMO. In short, given thetimelines imposed in the March 2011 CMO, Mr. Lee did not act in a timely way to raise the issue and pursue it effectively. [51] Even if I am wrong in refusing to order Ms. Levesque to attend for questioning, producing her would not change the result ofthis

summary judgment application. Given the current structure of the pleadings in this Action, the only evidence which Ms. Levesquemay have to give would relate to the questions of whether a legal duty exists and whether there has been a breach of any such duty. As Iconclude elsewhere in this decision, GH’s claim against the Ogilvie Defendants ultimately fails because GH cannot show that anydamage flows from either the negligence claim or the breach of fiduciary duty claim. Questioning Ms. Levesque would not save GH’sclaims from this fatal flaw. [52] Accordingly, I dismiss GH’s application to produce Ms. Levesque for questioning before the

summary judgment applicationis determined. [53] I now move on to consider a number of sources of evidence put forward by GH to respond to the case made by the OgilvieDefendants. (

b) The DeAngelis Report [54] GH asserts that there is evidence before the Court which raises a genuine issue for trial. In that regard, Mr. Lee, counsel forGH, seeks to put before the Court a report prepared by Frank DeAngelis, Barrister & Solicitor, filed on September 15, 2011 (the“DeAngelis Report”). Mr. Lee submits that the DeAngelis Report contains the opinion of a qualified expert relevant to the issue ofwhether a duty of care exists and if so, whether it has been breached in this case. [55] There is a serious dispute about the admissibility of the DeAngelis Report.

First, I must determine whether I am prepared toaccept Mr. DeAngelis as a qualified expert. The Ogilvie Defendants have not had an opportunity to cross-examine Mr. DeAngelis eitheron his qualifications, or on the substance of his opinions, because the DeAngelis Report was not provided by Mr. Lee to counsel for theOgilvie Defendants until on or after September 15, 2011. The March 2011 CMO required that any responding affidavits on the

summarydismissal motion be filed by July 15, 2011. As I have noted above in respect to the application to question Ms. Levesque, the March2011 CMO also required that questioning on all affidavits was to be completed and all materials in relation to the

summary judgmentapplication were to be filed by August 31, 2011. That requirement applied to all parties. In this case I note the filing of the DeAngelisReport is well outside that time limit. [56] In R v Mohan, (SCC), [1994] 2 SCR 9, 114 DLR (4th) 419 (“Mohan”) at para 17, the Supreme Court ofCanada held that the admission of expert evidence depends on the following criteria: (

a) relevance; (

b) necessity in assisting the trier of fact; (

c) the absence of any exclusionary rule; and (

d) a properly qualified expert. [57] The expert witness must be shown to have acquired special or peculiar knowledge through study or experience in respect ofthe matters on which he or she undertakes to testify: Mohan at para 27. [58] The DeAngelis Report is in the form of a letter from the author to Mr. Lee. There is no accompanying sworn affidavitdeposing to the qualifications of Mr. DeAngelis. The law requires that facts related to the qualifications of an expert must be proven byproperly admissible evidence. In this case, all that was put before the Court was the unsworn resumé of Mr. DeAngelis, which wasattached as a

schedule to the DeAngelis Report.

[ 59 ] A review of that unsworn resumé reveals that Mr. DeAngelis has been practicing law since 1993. He has a general legal education. He does not have a graduate degree in law or in any other area of study. He has not authored articles in any peer-reviewed legal journals or publications. Mr. Lee could not confirm whether Mr. DeAngelis attended any specialized courses on the subject of personal injury claims conducted by the Legal Education Society of Alberta or by any Canadian post-secondary educational institution. Further, it does not appear that Mr.

DeAngelis has been called upon to lecture on the topic of personal injury claims or any other areas involving the law of negligence or breach of fiduciary duty. He has never been qualified by this Court or any other court at any level in Canada as an expert in personal injury claims, or in any other area of practice of law for that matter. Based on his unsworn resumé, it appears that Mr. DeAngelis is a general practitioner of law who has gone to some of the general continuing legal education courses available in Alberta.

It is expected that any diligent legal practitioner in this Province would attend such courses. [ 60 ] In

summary, Mr. DeAngelis has not participated in any of the traditional activities which may provide him with specialized knowledge or skill to assist the Court. I am not convinced that he should be qualified as an expert witness capable of giving opinion evidence of the standard of care expected of a lawyer in Mr. Wasylyshyn’s position. In the absence of a satisfactory admissible evidentiary base regarding Mr. DeAngelis’ qualifications, I decline to qualify him as an expert witness. Since he is not qualified as an expert, the opinions contained in the DeAngelis Report will not be admitted into evidence and cannot be relied upon by GH to resist the Ogilvie Defendants’

summary judgment application. (

c) The GH Affidavit [ 61 ] Pursuant to the March 2011 CMO, GH swore an affidavit on June 3, 2011 (the “GH Affidavit”) in support of the various applications filed on June 23, 2011. Although the March 2011 COM had granted GH the opportunity to file an affidavit in response to the

summary judgment applications brought by the Ogilvie Defendants and the Public Trustee, she did not do so. Notwithstanding this failure to file any specific affidavit evidence to counter the Wasylyshyn Affidavit relied upon by the Ogilvie Defendants, Mr. Cranston agreed that the Court could consider any evidence contained in the GH Affidavit on this

summary judgment motion. [ 62 ] A review of the GH Affidavit reveals that it does not contain any pertinent evidence which might support a conclusion that there is a genuine issue for trial as it relates to the Ogilvie Defendants. The GH Affidavit is replete with attachments of third party correspondence, which are hearsay, and recounts many instances of advice from her legal counsel. This is not admissible or appropriate evidence in response to a

summary judgment application. The GH Affidavit contains no evidence which has any bearing on any of the issues in this Application. In particular, there is no evidence in the GH Affidavit on the issue of whether the alleged negligence or breach of duty by the Ogilvie Defendants caused GH any damage, as will be discussed further below. 3. Has GH demonstrated that there is arguable merit to her claims against the Ogilvie Defendants which raise a genuine issue for trial? [ 63 ] In her Amended Statement of Claim, GH made many allegations of negligence and improper conduct on the part of the Ogilvie Defendants, namely that: (

a) the Ogilvie Defendants were hired as a reward for working in support of Alberta Children’s Services and for not taking positions adverse to Alberta Children’s Services; (

b) the Ogilvie Defendants were negligent in drafting a letter to GH’s treating therapists; (

c) the Ogilvie Defendants negligently provided an opinion recommending that GH not file a lawsuit at the relevant time; (

d) the Ogilvie Defendants negligently made an application for GH under the Victims of Crime Financial Benefits Program; and

(

e) the Ogilvie Defendants failed to assist GH with an application for AISH (Assured Income for the Severely Handicapped) program. [ 64 ] These allegations were repeated again in the briefs filed by Mr. Lee on GH’s behalf. Of course, allegations in a pleading are not evidence and repetition of scurrilous allegations in a legal brief do not magically convert them into evidence. I conclude that GH has put no evidence before the Court which supports these allegations.

A respondent cannot rely solely on the pleadings to meet the challenge raised by applicants who have discharged their evidentiary onus of showing that there is no genuine issue for trial. As noted in Murphy Oil , while there is no obligation on GH to file material, a respondent who does not resist the application through admissible evidence risks judgment against him or her. [ 65 ] There was no direct relationship between GH and the Ogilvie Defendants by way of a retainer.

The Ogilvie Defendants were retained by the Public Trustee to provide a legal opinion to the Public Trustee as to whether the Public Trustee should commence certain legal proceedings on behalf of GH. While GH was the subject of the Ogilvie Opinion, she was never their client and there was no contractual relationship between GH and the Ogilvie Defendants. [ 66 ] Further, there is no fiduciary relationship established between GH and the Ogilvie Defendants.

The Ogilvie Defendants were not GH’s solicitors or agents; their only fiduciary relationship was with their client, the Public Trustee. [ 67 ] Putting aside the question of whether GH could establish a duty of care and breach thereof on the part of any of the Ogilvie Defendants, it appears to me that any damages which might flow from such a breach would be too remote. [ 68 ] Causation is a necessary element of negligence. There is no evidence before me that GH has suffered any damage due to the conduct of the Ogilvie Defendants.

This is true in respect to both the allegations of negligence and breach of fiduciary duty. [ 69 ] Damages are necessary to complete a cause of action in negligence. Even if I was convinced that the Ogilvie Defendants breached a duty of care owed to GH, she has not suffered any damages as a result. She was able to commence a lawsuit claim before her 20 th birthday, when the limitation period would have otherwise expired. I note that the original tortfeasor who allegedly committed the sexual assault against her is also named as a Defendant in this Action.

Neither the activities of the Ogilvie Defendants nor the contents of the Ogilvie Opinion resulted in the loss of GH’s ability to directly sue the original tortfeasor and other parties related to the April 2008 sexual assault. If the claims against those other Defendants are proven, GH will be entitled to recover damages and as a result, she would not have suffered any loss attributable to the Ogilvie Defendants.

In a similar vein, GH is presumably entitled to receive an award based on her own application under the VCA and as such, no damages could flow from the actions of the Ogilvie Defendants. [ 70 ] GH argues that she has suffered losses due to the actions of the Ogilvie Defendants. While she took steps to mitigate her loss by commencing her own lawsuit, GH submits that the actions of the Ogilvie Defendants nevertheless caused her to suffer a delay in prosecuting her claims. More specifically, she argues that she has lost interest and the opportunity to have her legal fees and disbursements paid by the Public Trustee.

She concedes that it is too early to know if the delay will hurt her ability to prove her claims due to the loss of evidence or witnesses. [ 71 ] I observe again that this Action had originally been stayed in my February 2010 CMO, which also took the entire Action into case management. The March 2011 CMO gave GH “leave to apply concurrently to lift the stay for the purpose of bringing advanced funding, questioning, designation of the case as complex, and adjournment applications”.

Neither of the applications filed by the Plaintiff on June 23 or September 15, 2011 ever asked that the original stay be lifted, although permission had been given to make such an application. Furthermore, Mr. Lee did not bring an application to have the Action designated as a complex case, even though he had indicated at the March 31, 2011, case management meeting that he would take steps to do so. Instead, Mr. Lee chose to seek an order staying the March 2011 CMO, rather than appealing it.

While GH may have valid reasons for moving slowly, her conduct suggests that there can be no damages from any delay attributable to the Ogilvie Defendants. [ 72 ] Without the missing element of damages, the cause of action is not complete and there can be no actionable claim.

[ 73 ] The Ogilvie Defendants have brought evidence to respond to the extreme, intemperate and unfounded allegations made against them. I find that they have discharged their legal onus of showing no genuine issue for trial. VI. Conclusion [ 74 ] Before moving to the ultimate disposition on the Ogilvie Defendants’ application for

summary dismissal, I will deal with whether it is appropriate to lift the stay to permit that application. [ 75 ] Based on the materials put before the Court, the Ogilvie Defendants have convinced me that the Action should be dismissed as against them. They have complied with the timelines set out in the March 2011 CMO. Reducing the scope of claims also plays into the efficient use of scarce court resources. In the result, I exercise my discretion to lift the stay for the specific purpose of deciding the

summary dismissal application by the Ogilvie Defendants. [ 76 ] In terms of the merits of the application for

summary dismissal, I have found an absence of evidence before this Court to support GH’s allegations against the Ogilvie Defendants. I conclude that there is no genuine issue for trial in this case as against the Ogilvie Defendants. This is a classic case of an instance where the unsupported claims of a plaintiff should be weeded out early in the process. [ 77 ] Accordingly, the Ogilvie Defendants’ applications to lift the stay imposed in the February 2010 CMO and to direct

summary dismissal is granted. The claims of GH as against the Ogilvie Defendants are dismissed. [ 78 ] The Plaintiff’s application to require that Ms. Levesque attend for questioning is also dismissed. [ 79 ] I direct that a form of order implementing this decision be provided to me by counsel for the Ogilvie Defendants within 7 days of the filing of this decision. Further, as a matter of case management, counsel for GH shall file an Amended Amended Statement of Claim deleting all allegations and references to the Ogilvie Defendants within 14 days of the filing of the dismissal order referred to above. [ 80 ] The Ogilvie Defendants are entitled to costs against GH on their

summary dismissal application and also on the Plaintiff’s unsuccessful application to question Ms. Levesque. [ 81 ] The Ogilvie Defendants have asked for solicitor/client costs on their

summary dismissal motion. If they intend to pursue that claim, they shall do so within 30 days of the date of this decision being issued by filing a written brief indicating the scope and basis for claiming solicitor/client costs. Counsel for GH shall then have 14 days to respond in writing. I may then require an oral hearing, depending on the scope of the claim for solicitor/client costs and the nature of the response by GH. Heard on the 19 th - 21 st days of October, 2011. Dated at the City of Edmonton, Alberta this 8 th day of March, 2012.

D.R.G. Thomas J.C.Q.B.A. Appearances: Mr. Robert P Lee (Old Strathcona Law Offices) for the Plaintiff Mr. D. Cranston, Q.C. Mr. M. Sestito (Bennett Jones LLP) for Levesque, Wasylyshyn and Ogilvie Mr. G. Alan Meikle Q.C. (Department of Justice Legal Services Division Civil Law Branch) for Her Majesty the Queen Mr. David N. Jardine (Shores Jardine LLP) for the Public Trustee and James Weir Ms. K. B. Nychka and Ms. S. Hart (Bryan & Company) for Boyle Street Community Services Ms. F. Armfield Chomicki Baril Mah LLP for the Boys and Girls Club of Edmonton _______________________________________________________

_______________________________________________________ Corrigendum of the Reasons for Judgment Re the

Summary Judgment Application of the Ogilvie Defendants of the Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ The index has been regenerated to show paragraph 1.(

b) on pg. 8 of this judgment.