GH v Alcock, 2012 ABQB 210

Court of Queen ’ s Bench of Alberta Citation: GH v Alcock, 2012 ABQB 210 Date: 20120402 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, ____________, ______________, ____________, 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.

Editorial Notice: On behalf of the Government of Alberta identifying information has been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment Re the

Summary Judgment Application of The Public Trustee and James R. Weir of the Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ I. Introduction and Procedural History........................................................................... Page: 2 II. Background Facts....................................................................................................... Page: 3 III. The Law...................................................................................................................... Page: 4 IV.

Issues.......................................................................................................................... Page: 5 V. Analysis...................................................................................................................... Page: 6 1. Have the PT Defendants met their evidentiary burden to establish a prima facie case for

summary dismissal of the Action as against them?....... Page: 6 (

a) The Weir Affidavit.............................................................................. Page: 7 (

b) The Questioning of Mr. Weir.............................................................. Page: 8 (

c) Responses to Undertakings................................................................. Page: 9 2. Is there any admissible evidence upon which GH may rely to resist the application by the PT Defendants?.................................................................................................. Page: 12 (

a) The GH Affidavit.............................................................................. Page: 12 (

b) The Orwaard Affidavit...................................................................... Page: 12 3. Has GH demonstrated that there is arguable merit to her claims against the PT Defendants which raise a genuine issue for trial?................... Page: 13 VI. Conclusion................................................................................................................ Page: 14 I. Introduction and Procedural History

[ 1 ] The Defendants James R. Weir and The Public Trustee (collectively the “PT Defendants”) bring an application for

summary dismissal of the claims made against them by the Plaintiff (“GH”) in Action No. 0903 17941 (the “Action”). [ 2 ] This decision is the companion to my earlier judgment in GH v Alcock, 2012 ABQB 166 (“ GH #1 "), in which I dismissed claims against Rod Wasylyshyn, Lara Levesque and Ogilvie LLP (the “Ogilvie Defendants”). [ 3 ] The facts are set out in GH #1 and will not be reproduced in detail in this decision. In brief, GH alleges that she was sexually assaulted in April 2006, when she was sixteen years old and subject to a Permanent Guardianship Order (“PGO”).

Alberta Children’s Services (“ACS”) passed along information about the incident to the Public Trustee, which in turn retained the services of Ogilvie LLP and Rod Wasylyshyn to provide a legal opinion as to whether legal proceedings should be commenced to recover damages on behalf of GH (the “Ogilvie Opinion”). The Public Trustee received the Ogilvie Opinion after GH turned 18 years of age, at which point she was no longer under the authority of the Public Trustee.

The Public Trustee declined to commence legal proceedings on behalf of GH, however it did prepare and submit an application under the Victims of Crime Act, RSA 2000, c V-3 (“ VCA ”) in order to preserve the rights of GH before the expiry of a limitation period. [ 4 ] GH started this Action against a number of individuals, government agencies, and other organizations.

Some of the claims against the PT Defendants can be characterised as a “failure to sue” and are similar to the claims advanced in TL v Alberta (Child, Youth and Family Enhancement Act, Director) , 2008 ABQB 114 , 436 AR 217, aff’d 2009 ABCA 182 , 457 AR 141. [ 5 ] On February 1, 2010 I had ordered a stay of this Action when the matter was taken into case management (the “February 2010 CMO”). At a further case management meeting held on March 31, 2011, I granted leave to the Ogilvie Defendants and the PT Defendants to apply to lift the stay in the February 2010 CMO for the purpose of bringing a

summary judgment application (the “March 2011 CMO”). That CMO set out guidelines for the steps to be taken before the

summary judgment applications were to be heard in the Fall of 2011. [ 6 ] The PT Defendants have complied with the deadlines set out in the March 2011 CMO and have requested that I lift the stay imposed by the February 2010 CMO to hear their application for

summary dismissal. [ 7 ] In GH #1 , I exercised my discretion to lift the stay for the specific purpose of deciding the application for

summary dismissal by the Ogilvie Defendants. Similarly, I now exercise my discretion to lift the stay in order to allow the PT Defendants to bring their

summary dismissal application. In all the circumstances here, lifting the stay is appropriate as the application for

summary judgment will result in a reduction of the scope of the claims and allow for more efficient use of the scarce resources of this Court, thus serving the objective of judicial economy. II. Background Facts [ 8 ] The background facts of this application are more fully set out in GH #1 and can be summarized as follows: (

a) GH alleges that she was sexually assaulted in April 2006, while subject to a PGO. (

b) In December 2006, the Public Trustee received a referral from ACS relating to the April 2006 incident (the “Referral Letter”). The Referral Letter also mentioned other allegations of earlier sexual assaults unrelated to the April 2006 incident. (

c) The Public Trustee retained Rod Wasylyshyn and Ogilvie LLP to provide a legal opinion as to the merits of bringing an application for compensation under the VCA , of commencing legal proceedings on GH’s behalf, and whether taking either of these actions would be in the best interests of GH.

(

d) The Public Trustee received the Ogilvie Opinion in November 2007, just after GH’s 18th birthday. When GH turned 18 years ofage, the Public Trustee lost jurisdiction to act on her behalf. (

e) Despite losing jurisdiction to act on her behalf, the Public Trustee made numerous attempts to contact GH to advise her of theresults of the investigation into the April 2006 sexual assault, the substance of the Ogilvie Opinion, and the relevant limitation periodsfor commencing a claim. GH did not attend several scheduled meetings. (

f) Concerned about an approaching limitation period for filing a compensation claim under the VCA, the Public Trustee instructedthe Ogilvie Defendants to prepare that application, which was submitted by the Public Trustee on April 2, 2008. The Public Trusteeadvised GH that it had filed the application in a letter dated May 14, 2008. (

g) GH contacted the Public Trustee in August 2008 to request a copy of her file, which was eventually provided to her on October13, 2008. (

h) GH initiated her own claim under the VCA and did not pursue the one filed by the Public Trustee. She commenced this Action on November 13, 2009, immediately before the expiry of the limitation period on her 20th birthday. [9] GH claims that the PT Defendants owed her a fiduciary duty which was breached by failing to protect all of her legal rights.She further claims that the PT Defendants were negligent in failing to have a clear and detailed practice and policy to ensure that thelegal rights of GH would be protected. Lastly, she claims an abuse of public office by the PT Defendants. III. The Law [10] This application for

summary judgment is brought under Rule 7.3(1)(b). As in GH #1, I refer to paragraph 17 of Murphy OilCompany Ltd v Predator Corporation Ltd, 2004 ABQB 688, 365 AR 326, aff’d 2006 ABCA 69, 384 AR 251 (“Murphy Oil”), for therelevant principles applicable to

summary judgment applications: 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 theapplication 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 todischarge 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 theevidence to determine whether the applicant has shown that there is no genuine issue for trial. [11]

Summary judgment cannot be avoided on the basis that there may be better or more evidence discovered as the matterprogresses to trial: Murphy Oil at para 87, referring to Suncor Inc v Canada Wire & Cable Ltd (1993), (AB KB), 7Alta LR (3d) 182 (QB).

[ 12 ] The PT Defendants bear the legal burden of demonstrating that there is no merit to the claims made against them in the Action. If the PT Defendants discharge their evidentiary burden, then GH must either refute or counter the evidence of the Defendants, or risk having her Action dismissed as against the PT Defendants IV. Issues [ 13 ] The following issues arise for decision: 1. Have the PT 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 PT Defendants? 3. Has GH demonstrated that there is arguable merit to her claims against the PT Defendants which raise a genuine issue for trial? V. Analysis 1. Have the PT Defendants met their evidentiary burden to establish a prima facie case for

summary dismissal of the Action as against them? [ 14 ] In her Statement of Claim, GH has made many allegations of negligence, breach of fiduciary duty, and abuse of public office against the PT Defendants, including that: (

a) The PT Defendants failed to consider suing or applying for crimes compensation benefits for the 2003 and 2006 sexual assaults; (

b) The PT Defendants failed to communicate the full details of their policy, including advising her of the difference in the legal process and responsibility for paying legal fees, disbursements and court costs before and after she turned 18 years of age, so that GH could provide her input into whether it was in her best interests to commence legal proceedings immediately or to wait; (

c) The PT Defendants failed to retain competent and experienced legal counsel to review GH’s potential lawsuits and prepare a legal opinion as to whether to commence legal proceedings on GH’s behalf; (

d) The PT Defendants retained the Ogilvie Defendants as a reward for not taking positions that were adversarial to Child Welfare; and (

e) The PT Defendants failed to co-operate and assist GH with her potential lawsuit after she turned 18 years of age, including failing to provide her with an unedited copy of her Public Trustee file and failing to provide her with her entire Child Welfare file. [ 15 ] In support of their application, the PT Defendants rely on the evidence contained in the Affidavit of James R. Weir sworn on May 11, 2011 (the “Weir Affidavit”), the transcript from the questioning of Mr. Weir conducted on August 23, 2011 (the “Questioning”), and the responses to undertakings arising from the Questioning.

(

a) The Weir Affidavit [ 16 ] Mr. Weir was authorised to swear the Weir Affidavit on his own behalf and on behalf of the Public Trustee. [ 17 ] Mr. Weir has been a lawyer with the Office of the Public Trustee since January 2006. Among his duties with the Public Trustee, he handles claims for minors who are subject to a PGO and he handled the file of GH personally. [ 18 ] Mr. Weir deposed that upon receiving the Referral Letter, the Public Trustee opened a new file for GH. The file was allocated to Mr.

Weir, who in turn referred the matter to the Ogilvie Defendants to investigate and assess GH’s potential claims in relation to the alleged April 2006 sexual assault, in accordance with the practice of the Public Trustee. [ 19 ] Mr. Weir stated that he referred the file to the Ogilvie Defendants because he was impressed with the work of Mr. Wasylyshyn on a complex medical malpractice claim that resulted in a favourable settlement for a minor plaintiff. Mr.

Weir expressly denies the allegations contained in the Amended Statement of Claim that the Ogilvie Defendants were retained as a reward for working in support of Child Welfare or for not taking positions against Child Welfare. [ 20 ] In his Affidavit, Mr. Weir details the numerous attempts he made to contact GH after she turned 18 years-old through her support worker at ACS and through her grandfather. Mr. Weir scheduled at least two meetings through GH’s support worker to meet GH in person and to advise her of her legal options and the relevant limitation periods applicable to her potential claims.

GH did not attend either meeting. [ 21 ] In May 2008, Mr. Weir sent correspondence to GH through her grandfather based on his belief that such correspondence would be delivered to GH. This letter which is exhibited to the Weir Affidavit, advised GH that the Public Trustee had retained outside counsel to review her file. It provided the names of the lawyers who had conducted the review, and the results of that review. Mr.

Weir also advised that the Public Trustee had submitted an application on behalf of GH under the VCA and, in the event she wanted to commence legal proceedings, that the limitation period would expire on her 20 th birthday. [ 22 ] A few months later in August 2008, the Public Trustee received an unsigned letter from GH requesting a copy of the Public Trustee’s file. Mr. Weir wrote to GH in September 2008 requesting that she provide signed letters requesting the file, which she did when she attended Mr. Weir’s office in person. Although Mr.

Weir advised GH that he would provide her with a copy of the Public Trustee’s file, he was reminded that the file would have to be vetted pursuant to the Freedom of Information and Protection of Privacy Act , RSA 2000, c F-25 (“ FOIPPA ”) before it could be released. After reviewing the copy of the Ogilvie file sent to him by Mr. Wasylyshyn, which had already been provided to GH, Mr. Weir determined that the Ogilvie file contained the same documents as the Public Trustee file with nothing deleted under FOIPPA . Nevertheless, Mr. Weir confirmed at his Questioning that he had provided Mr.

Lee with a copy of the Public Trustee’s file after it was vetted pursuant to FOIPPA. [ 23 ] Mr. Weir further confirms in the Weir Affidavit that the authority of the Public Trustee to deal with GH’s claims ended when the PGO terminated on her 18 th birthday. [ 24 ] In reviewing the Weir Affidavit, I cannot find any admissions which would create a genuine issue for trial in relation to the PT Defendants. (

b) The Questioning of Mr. Weir [ 25 ] I have examined the 105 page transcript of the Questioning of Mr. Weir held on August 23, 2011. At that session, counsel for Mr. Weir objected to many of the questions posed by Mr. Lee, counsel for GH. As noted in GH #1 at para 38 , the status of those objections was argued before me on Friday, October 21, 2011. At that time, I ruled all of the objections were sustained and that

Mr. Weir need not answer any of the questions posed by Mr. Lee to which objection had been taken. [ 26 ] I note that the application by Mr. Lee on behalf of GH to compel answers to the objected to questions were dealt with as part of the overall application by the PT Defendants. I indicated to Mr. Lee on several occasions that the decision on the

summary dismissal motion would not be closed or decided until he had had an opportunity to deal with the objections, notwithstanding that his application to deal with the questions subject to objection was made after the August 31, 2011, deadline for all motions. That deadline had been set in my March 2011 CMO and applied to all applications by all parties made pursuant to that Order. [ 27 ] During the Questioning on August 23, 2011, Mr. Weir gave the following evidence: (

a) He denied owing a duty of loyalty to Her Majesty the Queen as alleged by GH in the Amended Statement of Claim. He stated that his duty is to the Public Trustee. (

b) It is not unusual for the Public Trustee to have clients who sue Government of Alberta entities. Where a potential conflict of this sort arises, the procedure is to appoint a litigation representative who instructs independent counsel. (

c) When the Public Trustee received the Referral Letter from ACS, it retained outside legal counsel to provide an independent review of the potential claim in accordance with its policies and procedures. (

d) The Referral Letter included references to earlier sexual assaults before the alleged April 2006 sexual assault. The Ogilvie Defendants were asked to provide their opinion on the April 2006 sexual assault only. (

e) The Public Trustee has a written policy which provides that legal opinions are reviewed by a three-person committee called the PGO Committee, which considers the opinion of the outside lawyer and decides whether to commence a lawsuit or not. The PGO Committee is typically comprised of the Public Trustee, the Director of Legal Services, and the legal officer handling the file. In this case, the Ogilvie Opinion was not referred to the PGO Committee because GH had turned 18 years of age and the Public Trustee no longer had authority to act on her behalf. (

f) The question of whether the Public Trustee should retain a litigation representative to instruct outside legal counsel to pursue a claim against the Crown on GH’s behalf never arose in this case as GH had turned 18 years of age just before the Ogilvie Opinion was received. The Public Trustee no longer had authority to act and as GH became a legal adult, she was able to make her own decisions about who to sue. (

g) The Ogilvie Opinion and files were provided to GH and her legal counsel. (

h) The Public Trustee continued to pay the Ogilvie Defendants after GH turned 18 years of age so that the latter could meet with GH to explain to her the results of their investigations and to advise her of the relevant limitation periods applicable to all potential claims. (

i) The Public Trustee would not pay GH’s legal fees on an hourly basis to prosecute her action until conclusion of trial. The Public Trustee’s practice is not to pay legal fees for minors after they have turned 18 years of age other than in cases where it continues to pay legal fees to outside counsel so that they can meet with the minor to explain the situation and advise them of the relevant limitation periods. (

j) Despite the fact that its authority over GH had expired upon her 18 th birthday, the Public Trustee took steps to file a compensation claim under the VCA to preserve GH’s limitation periods. [ 28 ] As I have indicated in GH #1 and having reviewed the transcript of the Questioning of Mr. Weir again, I cannot find any admissions by him which would create a genuine issue for trial as it relates to the PT Defendants.

(

c) Responses to Undertakings [ 29 ] Counsel for Mr. Weir provided me with copies of the three undertakings given during the Questioning session on August 23, 2011: (

a) Policies from the Office of the Public Trustee that existed at the relevant time; (

b) The ACS policy that the Public Trustee had in its possession relating to how ACS refers cases to the Public Trustee; and (

c) Public Trustee’s policy for hiring lawyers for children subject to a PGO. [ 30 ] The policies referred to were developed to reflect the decision of this Court in VB v Alberta (Minister of Children ’s Services) , 2004 ABQB 788 (“ VB ”), in which Slatter J (as he then was) described at para 29 the duty of the Public Trustee in circumstances where it becomes aware that a child under a PGO has a potential cause of action. In

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

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

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

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

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

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

(

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

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

f) The Court retains a supervisory jurisdiction over the whole process. The Public Trustee or the next friend could apply for advice and directions where appropriate. Any interested person could apply to the Court for a review of decisions made during the conduct of the litigation, to ensure that the best interests of the child are paramount. [ 31 ] I have reviewed the policies and am satisfied that they are compliant with the approach set out in VB .

Based on my review of the Weir Affidavit and the transcript of the Questioning of Weir, I do not see any evidence to suggest that the PT Defendants have failed to follow these policies in referring GH’s file to the Ogilvie Defendants for the preparation of a legal opinion. [ 32 ] Counsel for GH argues that the PT Defendants breached their duty to GH as they did not follow the VB approach. Of all of GH’s submissions in this regard, the most significant question raised is whether the PT Defendants failed in their duty to see that GH’s potential claims were prosecuted in a reasonable way.

GH argues that the PT Defendants allowed their jurisdiction to expire by failing to obtain a legal opinion before GH turned 18 years of age. [ 33 ] The referral of GH’s file by Mr. Weir to outside counsel was a reasonable step to take. I do not see in the evidence a lack of timeliness on the part of the PT Defendants in retaining independent counsel to have a legal opinion prepared and delivered to the Public Trustee. Given the inquiries which had to be undertaken by the Ogilvie Defendants and the work which had to be done between March and November, 2007, I do not see a lack of timeliness on their part either.

Good legal work takes time and Mr. Weir and the Public Trustee were entitled to expect a detailed and balanced piece of work, which is what they received from Ogilvie LLP. Contrary to the assertions of GH’s counsel, there is no evidence of intentional foot-dragging on the part of either the PT Defendants or the Ogilvie Defendants in completing the Ogilvie Opinion. In the result, I cannot see any evidence in the record that the PT Defendants intentionally, or by neglect, allowed their jurisdiction to expire by failing to obtain a legal opinion before GH turned 18 years of age. 2.

Is there any admissible evidence upon which GH may rely to resist the application by the PT Defendants? [ 34 ] Since I have determined that the PT Defendants have met their evidentiary burden of establishing that there is no genuine issue for trial, it is now incumbent upon GH to resist the application through admissible evidence or risk judgment against her. To meet the evidentiary burden and either refute or counter the evidence of the Public Trustee, GH must establish her claim as being one with a real chance of success: Poliquin v Devon Canada Corp , 2009 ABCA 216 , at para 12 , 454 AR 61, at para. 12. (

a) The GH Affidavit [ 35 ] GH swore an Affidavit on June 3, 2011, in support of the application subsequently filed on her behalf on June 23, 2011. As noted in GH #1 , she did not file an affidavit to specifically respond to the

summary judgment application of the PT Defendants, or the Weir Affidavit, notwithstanding she had been given leave to do so in the March 2011 CMO. My comments in para 62 of that decision are equally applicable to this motion. The GH Affidavit is replete with attachments of third party correspondence, which are hearsay, and recount many instances of receiving information and advice from her legal counsel. As stated in GH #1 , this is not admissible or appropriate evidence in response to a

summary judgment application. (

b) The Orwaard Affidavit [ 36 ] On September 14, 2011, Mr. Lee filed an affidavit sworn by his assistant Ms. Cynthia Orwaard, in support of an application to compel Mr. Weir to answer questions which had been objected to during the Questioning on August 23, 2011 (the “Orwaard Affidavit”).

This Affidavit consists of a single exhibit: a letter dated September 6, 2011 to Mr. Lee from Jeremy Berland, Deputy Representative of the Office of the British Columbia Representative for Children and Youth (the “Berland Letter”). The author of the Berland Letter provides responses to questions posed by Mr. Lee about the child advocacy program and policies in British Columbia and also comments on reporting structures in the Alberta child welfare system. The Orwaard Affidavit does not attach as an exhibit the original letter from Mr. Lee to Mr.

Berland in which the various questions are raised. [ 37 ] The relevance of the content of the Orwaard Affidavit in this application completely eludes me. The policies and practices of the British Columbia child advocacy system have no bearing on this Action, which involves a claim by a person in Alberta who was subject to a PGO until she turned 18. Opinions by an official in British Columbia about child welfare systems in Alberta are not pertinent to the situation before me. In any event, the Berland Letter has not been properly put before this Court as evidence because Mr.

Berland did not provide his qualifications or any other information in sworn form. Indeed, it is not clear that Mr. Berland knew what use Mr. Lee would make of his correspondence. In

summary, this material is not relevant, is not in proper form and accordingly is not admissible as evidence in this application. Even if it was admissible, I would give it no weight. 3. Has GH demonstrated that there is arguable merit to her claims against the PT Defendants which raise a genuine issue for trial? [ 38 ] While there is generally no obligation on a respondent to file material to resist a

summary judgment application, failure to provide the court with admissible evidence may result in judgment against the respondent. Given my findings, the PT Defendants have discharged their evidentiary burden of showing that there is no genuine issue for trial. In the absence of admissible evidence, all that GH may rely upon are the unsubstantiated allegations contained in the Amended Statement of Claim.

In this case, GH cannot rely solely on her pleadings to meet the challenge raised by the PT Defendants who have discharged their evidentiary onus. [ 39 ] Fiduciary duties are sometimes alleged to imply or suggest that a defendant owes a higher duty or more onerous duty. In this case, the PT Defendants concede that the remedies available against a fiduciary are wide and include equitable remedies such as disgorgement of profits. They argue that no equitable remedies apply here.

Even though the Public Trustee was a trustee for GH’s estate while she was subject to a PGO, there is no evidence to support the allegations of GH that the PT Defendants were negligent in the discharge of their duties as a fiduciary. [ 40 ] Even though the Public Trustee is prima facie the person who ought to be advancing these types of claims on behalf of minor plaintiffs, it retains some discretion to determine whether a particular claim ought to be advanced.

As stated in para 16 of VB : The Public Trustee does not of course have to advance any and all claims that an estate under his care might possess: The Public Trustee is entitled to assess claims to see if they are of sufficient merit to justify the expense and risks of prosecution. If the Public Trustee comes to the conclusion that the claims are not sufficiently meritorious, or cannot be economically pursued, then the Public Trustee (like any other litigant) is entitled to abandon the cause of action.

In the context of child welfare cases, the Public Trustee, in consultation with the Director of Child Welfare, should also consider whether the litigation is in the best interests of the children. These decisions can be supervised by the Court, if necessary, but the primary decision-making power rests with the Public Trustee. [ 41 ] Based on the evidence before me, I am satisfied that the PT Defendants did not breach any duty owed to GH in the manner in which it handled her file.

As noted in GH #1 , even if GH was able to convince me that the PT Defendants failed to properly investigate, assess and pursue her potential claims, she has not suffered any loss as a result of the actions, or inactions, of the PT Defendants. Both her original Statement of Claim and her application under the VCA were filed within time. If her claims are proven, she will be entitled to receive indemnification.

In these circumstances, there can be no provable damages arising from these facts. [ 42 ] The argument of GH that she suffered losses because the PT Defendants did not proceed quickly enough in obtaining the Ogilvie Opinion is not borne out simply because it may not be realistic to expect any trustee to have investigated, commenced and finalized these types of claims to settlement or judgment within eleven months after receiving the Referral Letter. GH waited until her limitation period almost expired on her 20 th birthday before commencing this Action.

The PT Defendants are no more responsible or culpable for the fact that no legal action was commenced in the eleven months from the time the Referral Letter was received from ACS to the time that the Ogilvie Opinion was received, than GH and her own counsel are in waiting for nearly two years after GH turned 18 years of age to commence this Action.

[ 43 ] The main argument GH makes against the PT Defendants can be characterized as loss of opportunity: namely, that she lost the opportunity to have the Public Trustee pay her legal costs and disbursements until settlement or the end of a trial. GH submits that had the Ogilvie Opinion been received before her 18 th birthday, her file would have been reviewed by the PGO Committee which may have decided to pay her legal costs and disbursements after she turned 18 years of age and was no longer under the authority of the Public Trustee.

I find this argument speculative at best as it is not supported by any evidence. Mr. Weir testified during his Questioning that it is not the practice of the Public Trustee to pay legal fees for minors after they have turned 18 years of age other than in cases where it continues to retain outside counsel for the limited purpose of meeting with the minor to explain the results of the investigation and to advise him or her of the relevant limitation periods. Furthermore, the Ogilvie Opinion advised the Public Trustee not to commence legal proceedings as it was not deemed to be in the best interests of GH.

The Ogilvie Opinion only recommended pursuing an application under the VCA , which the Public Trustee did on behalf of GH to preserve the limitation period. It is far-fetched for GH to suggest, in the absence of any evidence, that the PGO Committee would have somehow decided to act against the recommendations contained in the Ogilvie Opinion and would have commenced legal proceedings on behalf of GH, or that the PGO Committee would have authorised the payment of legal fees and disbursements to outside counsel to pursue a lawsuit which independent lawyers had opined was not in her best interests.

The Court should not be asked to speculate or consider hypothetical situations where the evidence points to an entirely different result. [ 44 ] In conclusion, I find that the PT Defendants have brought forward sufficient evidence to respond to the allegations made against them in the Amended Statement of Claim. I find that they have discharged their legal onus of showing no genuine issue for trial. VI.

Conclusion [ 45 ] In reviewing the absence of evidence before the Court to support the allegations in the Amended Statement of Claim, I conclude that there is no genuine issue for trial in this case as against the PT Defendants. Accordingly, the application of the PT Defendants for

summary judgment is granted and the claims of GH as against Mr. Weir and the Public Trustee are dismissed. [ 46 ] I direct that a form of order implementing this decision be provided to me by counsel for the PT Defendants within 7 days of the filing of this decision. Further, as a matter of case management, counsel for GH shall file a further amended statement of claim deleting all allegations and references to the PT Defendants within 14 days of the filing of the dismissal order referred to above. [ 47 ] The PT Defendants are entitled to costs against GH on their

summary judgment application and also on GH’s unsuccessful application to compel Mr. Weir to provide answers to questions objected to during his Questioning on August 23, 2011. [ 48 ] The PT 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 2 nd day of April, 2012.

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