P.L. v. Alberta, 2012 ABQB 309

Court of Queen ’ s Bench of Alberta Citation: P.L. v. Alberta, 2012 ABQB 309 Date: 20120511 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 John Doe 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. Corrected judgment: A corrigendum was issued on June 12, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice R.A.

Graesser _______________________________________________________ Background [ 1 ] This decision comes out of case management of this action, following a number of applications by P.L. and by the Government defendants. [ 2 ] P.L. alleges that she was sexually assaulted by Thomas Svekla while she was in foster care. She claims damages against her foster mother, Mona, and Thomas Svekla who was Mona’s boy friend. She also claims damages against the Province arising out of the sexual assaults, on various theories.

The Public Trustee is a defendant, on the basis that it failed to protect P.L.’s legal rights by failing to seek compensation for her under the Victims of Crimes Act , R.S.A. 2000 c. V-3 or its predecessor statute, the Criminal Injuries Compensation Act , R.S.A. 1980 c. C-33. [ 3 ] The background of this action is more fully set out in my decision PL v. Alberta , 2011 ABQB 771 , wherein I dismissed P.L.’s

summary judgment application against the Province. [ 4 ] In these applications, P.L. applies for: 1. Particulars of the Province’s justification defence relating to the Province’s allegation that it was justified in keeping P.L. in the care of the Director of Child Welfare after the deemed expiry of the Temporary Guardianship Order because of the Director’s failure to file a service plan;

2. Production of a further and better Affidavit of Records from the Province, responsive to the allegations in P.L.’s Statement of Claim and Reply; 3. Leave to use discovery materials from other actions involving the Province in various applications and for various purposes in this action to avoid application of the implied undertaking of confidentiality rules; 4. Leave to amend her Statement of Claim; and 5. An order lifting the stay of her claim against the Public Trustee for failing to make appropriate claims for compensation on her behalf.

The Province opposes all of P.L.’s applications. [ 5 ] The Province applies for an order striking out various portions of the Statement of Claim and P.L.’s Reply to Statement of Defence. P.L. opposes that application. [ 6 ] It was agreed that P.L.’s application for particulars and production of a further and better Affidavit of Records should be deferred until issues relating to P.L.’s pleadings have been resolved and until the pleadings have been finalized. [ 7 ] The application was heard over two days, and at the beginning of the second day of the application, Mr.

Lee advised that he was removing some of the objected-to portions of the Reply, such that a decision need not be made with respect to the Crown’s arguments on para. 4(ii) of the Reply. Costs with respect to that portion of the application remain a live issue. [ 8 ] An application by P.L. for advance costs is pending, and it is in relation to that application that leave to use materials from other lawsuits is sought. Introductory Comments [ 9 ] This application brings several dynamics into play.

Firstly, there is the tension between brevity in pleadings and the need to clearly ensure that all causes of action the plaintiff wishes to advance are f'ully plead with sufficient clarity so that they are identifiable to the defendant. Secondly, there is the gray area between pleading facts and pleading evidence. Further, there is the gray area between alleging a cause of action and pleading sufficient facts to support it without pleading law. If evidence is plead, the defendant may object to prolix or otherwise improper pleadings. If not enough facts are plead, the defendant may demand particulars.

If the cause of action is too baldly plead, or law is plead, the defendant may argue that the plaintiff must plead sufficient facts (not law) to support the cause of action. [ 10 ] There is a somewhat fine balance between what is too much to amount to prolixity, and what is too little to leave the plaintiff vulnerable to an application to strike, or arguments at trial that the correct cause of action has not been plead. [ 11 ] Over-pleading results in expanded scope for relevance and materiality attracting broader record and oral discovery.

That expansion is contrary to the spirit of the new Rules of Court, with the foundational rules exhorting the parties to get to the real issues between them efficiently, quickly and economically. [ 12 ] With respect to the application or relaxation of the implied undertaking of confidentiality (Rule 5.33), the dynamics there are between the search for truth and protection of privacy rights.

The use of records produced in other litigation, or transcripts of questioning done in other proceedings, are generally for credibility and cross-examination purposes, so that a party cannot give contrary evidence in different proceedings, or in the words of some of the cases approbate and reprobate. Nevertheless, record production and information

obtained through questioning in other litigation is evidence produced under compulsion of law and is an intrusion into a party's right to privacy. How far that right goes in the face of the competing interest of the search for truth is a difficult dynamic and is essentially a discretionary call for a chambers judge. [ 13 ] A further element is the extent to which counsel involved in multiple proceedings is affected by the implied undertaking. A lawyer may find him or herself acting against the same defendant in more than one proceeding. If the proceedings are completely unrelated, there is probably no issue.

There will be no common records and no common information sought on questioning. But the lawyer may have learned of matters related to the party's credibility which could be used to cross-examine the party on.

Subject to the basic principle that matters solely relating to credibility may not be questioned on at questioning (discovery), and the collateral fact rule for evidence on credibility issues at trial, what a lawyer learns in one case against a party may be very helpful in how he or she approaches the same party in a different, and perhaps totally unrelated, lawsuit. [ 14 ] But there is no general prohibition against a lawyer acting against the same party in multiple lawsuits, even if that may be to the strategic disadvantage of the party.

Indeed, a client may specifically choose a lawyer to act because of the lawyer's familiarity with the opposite party and his or her success in litigating against the opposite party. [ 15 ] There is a further element at play here. That is the extent to which claims seeking to expand existing causes of action or duties may be allowed to proceed. Rule 3.68 permits a party to seek to strike a pleading or part of a pleading on the basis that it does not plead a valid cause of action.

Yet the law is not static, especially in the area of constitutional law, where the Supreme Court has expressly held that the law is "a living tree" and grows with the changes and needs of society. The law may well be developing in a certain area. The fact that the law has not yet reached a certain place may not mean that the law will never get there. But if a new cause of action, or new spin on an existing cause of action, is not allowed to proceed, how will the law ever develop?

Some might say that is an area best left to legislators, but we do not, in the common law portions of Canada, have extensive codification of private law and much is left to common law principles, and the development of the common law through cases. A narrow view would be to strike a claim that discloses no existing cause of action. A broader view would be to allow currently unrecognized causes of action which might be found to be valid (such as ones the law may be heading towards recognizing) to proceed. That presumably would give broad latitude to a judge to allow a novel case to proceed.

How that is reconcilable with the foundational rules is unclear, and new ground to be litigated itself. Should a defendant be forced to litigate novel issues, at the risk of only recovering party and party costs if it successfully defeats the novel claim? [ 16 ] Some of the answer to this last element is the discretion a judge has under R. 3.68 to refuse to strike if the action is not bound to fail, or is not hopeless.

That may depend on the judge's views not only as to the direction the law is taking, but the correctness of that direction. [ 17 ] The result of the exercises involved may be to have a statement of claim which has been honed to perfection such that the facts have been plead with such sufficiency to sustain the plaintiff's causes of action. Sufficient facts, but not too many, so the pleading is brief and not prolix. The cause or causes of action will have been plead with clarity so the defendant knows the case it has to meet.

All else - evidence, unnecessary law, unnecessary facts, - will have been removed. [ 18 ] Record production will have clearer bookends as to relevance and materiality, as will questioning. Province ’s Striking Application [ 19 ] The Province brings this application under Rule 3.68, which provides: 3.68(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following: (

a) that all or any part of a claim or defence be struck out; (

b) that a commencement document or pleading be amended or set aside; (

c) that judgment or an order be entered;

(

d) that an action, an application or a proceeding be stayed.

(2) The conditions for the order are one or more of the following: (

a) the Court has no jurisdiction; (

b) a commencement document or pleading discloses no reasonable claim or defence to a claim; (

c) a commencement document or pleading is frivolous, irrelevant or improper; (

d) a commencement document or pleading constitutes an abuse of process; (

e) an irregularity in a commencement document or pleading is so prejudicial to the claim that it is sufficient to defeat the claim.

(3) No evidence may be submitted on an application made on the basis of the condition set out in subrule (2)(b). [ 20 ] The Province refers to a number of other Rules in support of its application, including: Rule 13.6:

(1) A pleading must be (

a) succinct, and (

b) divided into consecutively numbered paragraphs, with dates and numbers expressed in numerals unless words or a combination of words and numerals makes the meaning clearer.

(2) A pleading must state any of the following matters that are relevant: (

a) the facts on which a party relies, but not the evidence by which the facts are to be proved; (

b) a matter that defeats, or raises a defence to, a claim of another party; (

c) the remedy claimed, including (

i) the type of damages claimed, (ii) to the extent known, the amount of general and special damages claimed, or if either or both are not known, an estimate of the amount or the total amount that will be claimed, (iii) a statement of any interest claimed, including the basis for the interest, and the method of calculating the interest, and (iv) costs, including any known special costs.

(3) A pleading must also include a statement of any matter on which a party intends to rely that may take another party by surprise, including, without limitation, any of the following matters: (

a) breach of trust; (

b) duress; (

c) estoppel;

(

d) fraud; (

e) illegality or invalidity of a contract, including the grounds; (

f) malice or ill will; (

g) misrepresentation; (

h) payment; (

i) performance; (

j) release; (

k) undue influence; (

l) voluntary assumption of risk; (

m) waiver; (

n) lack of capacity or authority; (

o) wilful default; (

p) tender of payment; (

q) a limitation period; (

r) a provision of an enactment.

(4) If the defendant proposes to produce evidence about the plaintiff’s reputation in mitigation of damages, the defendant mustinclude in a pleading the facts on which the defendant intends to rely. Rule 13.7: A pleading must give particulars of any of the following matters that are included in the pleading: (

a) breach of trust; (

b) fraud; (

c) misrepresentation; (

d) wilful default; (

e) undue influence; (

f) defamation. [21] The Province notes that I held in Donaldson v. Farrell, 2011 ABQB 11, that the new Rules have not modified or lessened thetest for striking out pleadings, as existed under old Rule 129. [22] The Province refers to the tests set out in paras. 8 and 9 of Tottrup v. Alberta (Minister of Environment), 2000 ABCA 121, 2000 CarswellAlta 365 (C.A.): The principles governing an application to strike a statement of claim for failure to disclose a cause of action are relatively settled. Inbrief, the Court must assume that the allegations of fact made by the plaintiff are true.

The Court then determines whether those factsdisclose a cause of action in law. The test set out by the Supreme Court in Hunt v. T & N plc, (SCC), [1990] 2 S.C.R.959 (S.C.C.), at 980 is whether it is "... 'plain and obvious' that the plaintiff's statement of claim discloses no reasonable cause of action."Caution is required before concluding that the plaintiff has no chance of success. The plaintiff is entitled to a broad reading of the

pleadings. In my view, this is particularly important where a question arises as to the expiry of a limitation period. Subject to limitationquestions, the Court may grant leave to include further facts if an application is made. In addition, a determination that there is no causeof action on one set of pleadings is generally no bar to framing a new action on different facts.Although the pleadings should be liberallyinterpreted, the Court has a duty to apply the Rule as it is intended. If the alleged facts, examined in light of the existing law, do notdisclose a cause of action the claim should be struck.

Needless litigation should be avoided. as well as the general test as set out at para. 17 of R v. Imperial Tobacco Canada Ltd., 2011 SCC 42: The parties agree on the test applicable on a motion to strike for not disclosing a reasonable cause of action under r. 19(24)(

a) of the B.C.Supreme Court Rules. This Court has reiterated the test on many occasions. A claim will only be struck if it is plain and obvious,assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action: Odhavji Estate v. Woodhouse, 2003 SCC69, [2003] 3 S.C.R. 263, at para. 15; Hunt v. Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959, at p. 980. Another way ofputting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter shouldbe allowed to proceed to trial: see, generally, Syl Apps Secure Treatment Centre v.

B.D., 2007 SCC 38, [2007] 3 S.C.R. 83; OdhavjiEstate; Hunt; Attorney General of Canada v. Inuit Tapirisat of Canada, (SCC), [1980] 2 S.C.R. 735. [23] Lax Kw’alaams Indian Band v. Canada (Attorney General), 2011 SCC 56 gives some helpful context to the contents ofpleadings at para. 43: Thirdly, it defies the relevant rules of civil procedure. Pleadings not only serve to define the issues but give the opposing parties fairnotice of the case to meet, provide the boundaries and context for effective pre-trial case management, define the extent of disclosurerequired, and set the parameters of expert opinion.

Clear pleadings minimize wasted time and may enhance prospects for settlement. [24] Many of the issues in this case are the subject of other lawsuits against the Province, and there have been striking applicationsby the Province in those lawsuits: AJG v. Alberta, 2006 ABQB 446, CHS v. Alberta (Director of Child Welfare), 2006 ABQB 241(Slatter J. as he then was), CHS v. Alberta (Director of Child Welfare), 2008 ABQB 513 (Thomas J.). [25] The Province relies on these cases to the extent that the decisions struck identical or very similar claims as disclosing no causeof action. [26] The Province cites Rumley v.

British Columbia, 2001 SCC 69, as authority for its argument that claims of “systemicnegligence” are not relevant to individual claims but rather only have a place in class proceedings. It notes that Clackson J. held in Mr Dv. Phillips, 2004 ABQB 380 that allegations of systemic negligence “cannot be treated as the foundation for a broad general inquiry intogovernment action or reasons for action or government funding decisions or indeed any other government initiative. Mr. D’s personalcircumstances and his treatment must be the limiting factor.” (At para. 8) [27] Read J. considered similar arguments in K v.

K(E), 2004 ABQB 159 and allowed some allegations of systemic negligence (ormatters that might be characterized as such) to remain in the Statement of Claim, on the basis that they may be the foundation for (andparticulars of) direct negligence in relation to the treatment of Mr. K. She struck some provisions of the Statement of Claim on the basisthat they disclosed no cause of action, and she allowed some general allegations of systemic negligence to remain, relying on B(KL) v.British Columbia, 2003 SCC 51, and on the basis that: I conclude that they are possibly relevant.

While they are also largely redundant, they do provide some particularization of the basis ofhis claim,. I decline therefore to strike them. The real issue is the breadth of disclosure... (at para. 56) [28] She held at para. 83 that allegations of “systemic negligence is irrelevant to Mr. K’s claim for punitive damages” and at para.94 noted that there was “no cause of action for systemic negligence”. [29] In TL v.

Alberta (Director of Child Welfare), 2006 ABQB 104, Slatter J. (as he then was) considered allegations of systemicnegligence in the context of the certification of a class action, noting at para. 103 that “The “operation” of the system can only be testedat the individual level, by seeing how the rights of the individual were handled.”

[ 30 ] The Province argues that, following L(

A) v. Ontario (Minister of Community & Social Services) , 2006 CarswellOnt 7393 (C.A.) , there is no cause of action in negligence against the Province arising out of funding decisions. At para. 24, the Court stated: The determination of what services to fund and how to fund them is left ot the Minister. When deciding whether or not to enter a s. 30 agreement (provision of services for children with special needs), the Minister is required to act in the public interest and balance competing demands for scarce public resources...

The statute provides the respondents with the hope that the Minister might enter into a special needs agreement but, in the face of the Minister’s public duty to weigh other competing demands when deciding how to exercise his or her discretion, that hope does not amount to a legal duty of care that would ground an action for damages in negligence. [ 31 ] Essentially, the Court held that such decisions were policy decisions and not operational decisions. [ 32 ] Further, relying again on L(

A) v. Ontario , considering the tort of misfeasance of public office, the Province argues that budgetary decisions or “failure to discharge the functions of office because of budgetary constraints does not amount to a deliberate disregard of a public officer’s duties” (at para. 36, citing Odhavji Estate v. Woodhouse , 2003 SCC 69 ). “The tort (of misfeasance of public office) is directed “at a public officer who could have discharged his or her public obligations, yet wilfully chose to do otherwise.” [ 33 ] In L(

A) v. Ontario , the Court held at para. 37: In my view, the amended statement of claim fails to plead facts sufficient to satisfy the requirements of the tort of misfeasance in public office. The pleading makes bald allegations that recite the basic elements of the tor in very general terms but fails to provide material facts sufficient to demonstrate an intentional wrongdoing by a specific public officer aimed at the respondents. [ 34 ] The Province also argues that cannot be held vicariously liable for the negligence or misconduct of foster parents, following the Supreme Court’s decision in B(KL) v.

British Columbia , 2003 SCC 51 . [ 35 ] As for s. 7 Charter rights, the Province cites CHS v. Alberta (Child and Family Enhancement Act, Director) , 2010 ABCA 15 . There, the Court of Appeal found the plaintiff’s pleadings lacking, stating “they fail to identify any principle of fundamental justice.” Rather than strike the s. 7 provisions in the Statement of Claim, however, the Court of Appeal gave leave to the plaintiff to amend the Statement of Claim to address the deficiency (at para. 37). [ 36 ] The Plaintiff filed an affidavit in response to the Province’s striking application.

No evidence is admissible in relation to applications under Rule 3.68(1)(a). As such, Ms. Orwaard’s affidavit of February 3, 2012 is not relevant to the Province’s application and will not be considered in that regard. [ 37 ] Mr.Lee, on behalf of the Plaintiff, argues that systemic negligence has been recognized as a tort giving rise to an individual cause of action in Ms R v. WA , 2000 ABQB 974 . There, Ritter J. (as he then was) considered the plaintiff’s application to compel the Province to provide a further and better affidavit of records, including: 1.

Documents relating to other Child Welfare abuse investigations; 2. Documents relating to attempted use of the notwithstanding clause and sterilization lawsuits; 3. Documents relating to the change from the Criminal Injuries Compensation Act to the Victims of Crime Act ; 4. Documents relating to the Government's failure to sue itself on behalf of children who are wards of the Government; 5. Documents relating to the Government's attempt to shred, hide or cover up Child Welfare negligence or liability; and

6. Documents relating to the Government's response to various Children's Advocates' Reports and other reviews of Child Welfare practices. [ 38 ] In considering the plaintiff’s claim for punitive damages, Ritter J. stated at para. 10: ...if there was a policy to not take children into care due to economic considerations, and documents existed regarding that policy, and if the Plaintiffs were affected by that policy, then the Plaintiffs are entitled to discovery of any documents that relate to that policy.

Further, if the policy pre-dated the time frame involving the Plaintiffs and continued after the time frame involving the Plaintiffs right up to the date of the litigation, then all of the documents that show that continuing policy are discoverable. [ 39 ] Mr. Lee argues that in this decision, “the Crown litigated the issue of systemic negligence in 2000 and lost.” [ 40 ] Mr. Lee also argues that many of the Crown’s submissions here are the same as their unsuccessful submissions before the Court of Appeal in LC v. Alberta , 2010 ABCA 14 .

In that case, the Court of Appeal refused to strike allegations of misfeasance in a public office. It held at para. 7: Nonetheless, the Supreme Court held that it was sufficient for the plaintiffs to allege as a fact that the defendants knew that the alleged conduct would cause the plaintiffs to suffer harm. Indeed, the simple allegation of knowledge as a fact, without more, should be enough to meet this element of the offence... [ 41 ] Mr.

Lee argues that the allegations in the Statement of Claim relate to operational negligence and not about the allocation of resources. [ 42 ] With respect to the applicability of B(LK) v. British Columbia , Mr. Lee argues that case is limited to its facts and the applicable legislation in British Columbia.

It should not be considered to be a precedent that a Province can never be vicariously liable (i.e. without proof of negligence on the Province’s part) for the torts or misconduct of a foster parent. [ 43 ] I will now deal specifically with the Province’s submissions on the various impugned paragraphs in the Statement of Claim. Systemic Negligence Paras 13-19, 63(b)-(e), (

g) and (k) 13 The overarching purpose of the Act is to protect children such as P.L., ensure that they receive such protective services as are needed in their best interests, and to preserve their family unit wherever possible. 14 To the knowledge of the Plaintiff, the legislative history of the Act and amendments to its provisions were directed at addressing serious problems in the Child Welfare system that had been previously identified by reviews of the Alberta Child Welfare system, including, but not limited to, provincial Boards of Review, Ombudsman’s reviews, and Fatality Inquiries. 15 To remedy the Crown’s persistent failure to provide the children in the Crown’s care adequate care and services geared to facilitating wherever possible the return of those children to their parents or guardians and the maintenance of their family unit, the Act required that the Crown prepare, file, review, communicate, implement and follow a plan for the care of the child, including a description of the services to be provided (hereinafter referred to as a “service plan”).

16 From 1950 substantial systemic problems of the Child Welfare system in Alberta were identified in provincial Boards of Review, Ombudsman’s reviews, Fatality Inquiries, Children’s Advocate’s reviews and annual reports, special case reviews, performance management reviews, court decisions, law suits, Child Welfare proceedings, annual reports and other public and internal reviews of the Child Welfare system. 17 The systemic problems that were identified and existed in the Alberta Child Welfare system including:

a) the Crown failed to employ enough staff to perform the agency’s work,

b) the employees of the Crown were not sufficiently qualified, trained and supervised,

c) the employees of the Crown were not provided with the resources necessary to do their jobs,

d) the Crown did not have a strong and stable leadership in place to support the staff by setting official policy, monitoring the services delivered by the frontline staff, and maximizing the effectiveness of available resources,

e) children falling through the cracks of the Child Welfare system without adequate service planning, also described as “drift in care”,

f) inadequate investigation of children’s and families needs,

g) inadequate preparation and development of service plans,

h) inadequate training, investigation and supervision of foster parents,

i) inadequate recruitment practices and standards for workers,

j) inadequate training, management and supervision of workers,

k) inadequate quality of services by workers, including inadequate abilities of workers to investigate and supervise foster parents,

l) inadequate staffing levels,

m) unreasonably high case loads,

n) inadequate review of case loads and staffing levels,

o) high turnover rates and inadequate retention rates of employee resulting in inadequately experienced workers,

p) inadequate placement resources,

q) inadequate service resources,

r) inadequate accountability practices, including the failure to hold workers who violate their duties to clients accountable and failing to lay criminal or provincial charges against workers when they violate the law.

s) inadequate monitoring of children in care,

t) failing to provide children in care with adequate medical and mental health services,

u) inadequate stability for children in care, including multiple moves,

v) a bunker mentality that discourages criticism and encourages putting the interests of the Crown ahead of the interests of children and families, (hereinafter referred to collectively as the “systemic problems”). 18 The Crown had an ordinary duty and fiduciary duty to the Plaintiff to fix the systemic problems. 19 The systemic problems of the Crown directly caused or indirectly contributed to the claims by the Plaintiff. 63 The Crown has negligent and breached its fiduciary duty in that: ...

b) The Crown failed to establish, maintain or otherwise provide any adequate system to properly fulfill their mandate;

c) The Crown failed to implement any or, any appropriate policies, procedures and audit processes to detect and correct errors in the Crown’s administration of custody and guardianship of the children in care, including P.L.;

d) The Crown failed to perform timely periodic reviews to ensure that the Department of child welfare was following appropriate operational, monitoring and auditing procedures;

e) The Crown failed to properly train and supervise their employees, servants and agents; ...

g) The Crown failed to implement appropriate hiring practices and policies to ensure that workers had adequate education, skills, experience, time and resources to complete their statutory duties to P.L.; ...

k) The Crown was aware that excessive caseloads were causing problems and pressures which affected the workers ability to provide quality services to children in care and to meet children’s and family’s needs. The Crown maliciously, recklessly and carelessly failed to monitor and remedy the caseload problems, which affected the Plaintiff; [ 44 ] I disagree that Ritter J. accepted that systemic negligence was a tort or could sustain a cause of action by an individual in Ms R v. Mr A .

That case was a case about relevance and materiality in the context of disclosure or discovery of records and was not a striking case. It cannot be relied on to resist an application to strike pleadings as not disclosing a cause of action. [ 45 ] With respect to Mr. Lee’s argument that the pleadings in LC v. Alberta are virtually identical to the pleadings here and were not struck, there is no indication in LC v. Alberta that the Province sought to remove those allegations from the statement of claim on systemic negligence arguments.

I do not see that this argument helps him, or that he can find any support in LC v. Alberta for the pleadings here. [ 46 ] However, I have difficulty reconciling the Province’s position with the Supreme Court’s statement at para. 16 of KLB v. British Columbia , 2003 SCC 51 : 16 This appeal and the appeals in the two companion cases stand to be judged by the standards of the day for placement and supervision, in other words the standard of a prudent parent at that time.

The standards prevailing in the 1960s and early 1970s were lower than those of today, because there was less awareness of the risk of abuse in foster homes. The trial judge did not apply today’ s standards, but proceeded on the basis that the standards of the time required proper assessment of the proposed foster parents and whether they could meet the children ’ s needs; discussion of the acceptable limits of discipline with the foster parents; and frequent supervisory visits in view of the fact the foster homes were “ overplaced ” and had a documented history of breach.

She found that the government negligently failed to meet this standard (para. 74), and that this negligence was causally linked to the physical and sexual abuse suffered by the children and their later difficulties (para. 143). It is clear from these conclusions that the government failed to put in place proper placement and supervision procedures, as required by the Act. The system of placement and supervision was faulty, permitting the abuse that contributed to the children ’ s subsequent problems. [ 47 ] Like Read J. found in K v.

K(E) , allegations which appear to be allegations of systemic negligence may nonetheless be relevant to allegations of negligence in a particular case, if the systemic negligence led to or contributed to conditions that lead to the problems in issue. [ 48 ] An advantage of looking closely at KLB is that it is a case that went to trial, and the Supreme Court had the benefit of the evidence that was before the trial judge, as opposed to looking at a matter on a more academic or theoretical basis as with striking applications. [ 49 ] I do not read the Plaintiff’s Statement of Claim as relying on systemic negligence alone.

To the extent it does, that would be improper under the authority of Rumley , Mr D , and TL . To the extent that the Statement of Claim ties the alleged systemic negligence to the Plaintiff, that is not objectionable. [ 50 ] That distinction is, I believe, what Read J. was making in K v. K(E) .

I intend to follow that approach here. [ 51 ] I must consider each paragraph and determine the extent to which the paragraph relates to a necessary element of a cause of action (alleging a duty and a breach of that duty and the resulting harm) or how it relates to relevant and necessary facts supporting the cause of action. Sufficient, but not too many, particulars of the necessary facts must be given. Hence the tension between too little and too much. [ 52 ] I consider paragraph 13 to be an allegation as to the nature and extent of duties owed by the Province to the Plaintiff.

To the extent it is accurate, it is not objectionable. To the extent that it is inaccurate or disputed, that may be one of the issues for trial. It should remain.

[ 53 ] Paragraph 14 has no connection to the Plaintiff and should be struck. [ 54 ] The first half of Paragraph 15 is irrelevant and should be struck. The balance of the paragraph, starting “The Act required that the Crown prepare...” specifies a duty owed to the Plaintiff and is not objectionable. [ 55 ] Paragraph 16 is largely irrelevant. What may be relevant is the extent to which there were known systemic problems at the time the Plaintiff was first apprehended.

In its present form, however, it should be struck. [ 56 ] Paragraph 17 may be relevant to the Plaintiff’s circumstances and allegations of Crown negligence to the extent that “identified and existed in the Alberta Child Welfare System” refers to the time the Plaintiff was first apprehended. On that prerequisite, the paragraph should remain. This will undoubtedly be the subject of further discussion surrounding the scope of record production and questioning.

Nevertheless, if the Supreme Court saw no objection to consideration of these issues in the context of Crown negligence at the trial in KLB , I see no reason to exclude these allegations at this stage of the litigation. [ 57 ] A tie-in to the Plaintiff is clearly made in paragraph 19. [ 58 ] While paragraph 18 also alleges a duty, there is no duty known to law for the Province to have to fix “systemic problem” for an individual.

That allegation is contrary to the fiduciary duties owed by the Crown to children in care in KLB , and should be struck. [ 59 ] With respect to para. 63, I agree with the Province’s submissions that the allegations must tie into the plaintiff, and not be wholly generic or system-wide. As such, para. 63 (

d) is struck. It does not relate specifically to the Crown’s obligations or duties to the Plaintiff. The other allegations directly or inferentially tie in to the Plaintiff and particularize the Plaintiff’s allegations of negligence and breach of fiduciary duty to the Plaintiff. The Province takes issue with para. 63(k); to the extent that this paragraph alleges knowledge of a risk and negligence in dealing with that risk, however it is not objectionable.

Using terms such as “maliciously” and “recklessly” is frivolous, irrelevant and improper within the meaning of Rule 3.68(2)(c), and those adverbs should be struck. Alleging “carelessly” is tantamount to an allegation of negligence, and on that

interpretation, it should not be struck. Misfeasance in Public Office Paras. 11, 22-24, 26, 31, 63(k), 64-67 and 85 11 The Crown failed to exercise control over the day to day activities that Mona and Thomas Svekla participated in with the children due to lack of care, recklessness, self interest and malice. ... 22 The Crown maliciously, carelessly and recklessly failed to perform a reasonable assessment and investigation into the qualifications of Mona and Thomas Svekla, including but not limited to:

a) failing to perform independent investigations into the family,

b) failing to adequately review references,

c) failing to corroborate information on their applications,

d) failing to determine their ability to handle stress,

e) failing to use any objective test or criteria to determine their ability to care for young children, and

f) failing to conduct a criminal record check.

23 The Crown carelessly, recklessly and maliciously failed to provide adequate support, supervision and monitoring of the foster parent, Mona and Thomas Svekla including but not limited to:

a) failing to provide training regarding child sexual abuse, and

b) failing to provide training regarding domestic violence. 24 The Crown carelessly, recklessly and maliciously failed to provide adequate support, supervision and monitoring of the foster parent, Mona and Thomas Svekla including but not limited to:

a) failing to visit the foster home on a regular basis,

b) failing to telephone Mona and Thomas Svekla on a regular basis,

c) failing to develop a relationship of trust with the children in the home,

d) failing to interview the children in the home on a regular basis,

e) failing to interview the children in the home in private, and

f) failing to talk to neighbours and other potential witnesses. ... 26 The Crown misrepresented to the Child Welfare Court that they had the ability to keep P.L safe. The Crown took P.L. from an unsafe environment and forced her into a more dangerous environment. ... 31 The Crown failed to take appropriate steps prior to placing P.L. with Mona and Thomas Svekla and failed to adequately supervise or monitor Mona and Thomas Svekla. The Government maliciously, recklessly and carelessly placed, supervised and monitored P.L. in Mona and Thomas Svekla’s home. 63

k) The Crown was aware that excessive caseloads were causing problems and pressures which affected the workers ability to provide quality services to children in care and to meet children’s and family’s needs.

The Crown maliciously, recklessly and carelessly failed to monitor and remedy the caseload problems, which affected the Plaintiff. 64 The reason that the Defendants breached their duties to the Plaintiff was for their own self-interest and with an intent to violate the Plaintiff’s best interests. 65 The Crown breached it’s fiduciary duty to the Plaintiff to avoid the time and effort of completing their duties to the Plaintiff. They wanted to save time and resources so that they could apply that time and resources to other children on their excessive caseload.

They wanted to cut corners and save money rather than to make decision in the best interest of the children. They wanted to conceal information to try to avoid being sued. They wanted to keep a high number of children in care to keep statistics high and to meet quotas. They wanted to exert power and control over the Plaintiff to feel important and powerful. 66 The Crown’s longstanding and extensive non-compliance with the Act was grossly negligent in light of the legislative history and purpose of the Act.

The Act was introduced to address specific concerns about the quality of care that Alberta’s children in care were

receiving from the Crown. Compliance with the Act was designed to protect vulnerable children in the care of the Crown.

In addition, the non-compliance of the Act was grossly negligent in light of the various judicial pronouncements made from time to time regarding the critical importance of complying with the legislation. 67 In any of the actions, omissions or decisions made by the Crown, referred to herein, were policy decisions, then they were not made in good faith. ... 85 The Crown’s conduct maliciously, recklessly and carelessly disregarded and contravened international conventions, the Constitution, legislation and policy manuals designed to protect the Plaintiff from injury, was in contumelious disregard of her personal rights, was reprehensible and outrageous, offended the sense of decency of tight thinking persons sufficient to warrant the condemnation of this Court and renders the Crown liable to pay aggravated, exemplary, punitive and/or symbolic damages. [ 60 ] I do not see that para. 11 constitutes a claim of misfeasance in public office.

Para. 10 alleges a fiduciary obligation (presumably to the Plaintiff) to control the day to day activities of Mona and Mr. Svekla as they relate to the Plaintiff. Para. 11 alleges a breach of that duty. That pleading does not seem objectionable and is not struck. [ 61 ] With respect to paras. 22-24, I am prepared to infer that “carelessly” is an allegation of negligence and I will not strike that allegation. The pleading would be better if these paragraphs simply said “negligently”, but the difference is not so great as to require striking or amendment.

The allegations of malice and recklessness fit within the characterization of “frivolous, irrelevant or improper” in Rule 3.68(2)(c). They add nothing but unnecessary colour to the allegations and should be struck. [ 62 ] Paragraph 26 is irrelevant to the Plaintiff’s claim. It relates to no cause of action in favour of the Plaintiff and fits within the characterization of frivolous, irrelevant and improper.

It is struck. [ 63 ] Paragraph 31 faces the same problems as paras. 22-24. “Carelessly” is a rough equivalent to “negligently”; the allegations of malice and recklessness must be struck but the rest of the paragraph should remain. [ 64 ] The Crown objects to para.63(

k) on the basis that it alleges misfeasance in public office and cannot support a cause of action. There is, in my view, sufficient connection with the Plaintiff to have this allegation stand in support of the negligence and breach of fiduciary duty claims, subject to the removal of “maliciously” and “recklessly”. [ 65 ] Paragraph 64 imputes motives to the Defendants. The paragraph is essentially meaningless, as it does not specify what duties are being referred to, and to which Defendants. It is also unconnected with any cause of action, and should be struck. [ 66 ] Paragraph 65 imputes motives to the Crown.

The paragraph is unconnected in any material way with any cause of action the Plaintiff has alleged (either as an element of the cause of action or facts necessary to support the cause of action, and should be struck. Why the Crown breached its fiduciary duties (if it did) is irrelevant. [ 67 ] Paragraph 66 does not establish a cause of action, nor does it relate to any cause of action the Plaintiff has alleged.

The allegations are irrelevant and should be struck. [ 68 ] I do not see paragraph 67 as objectionable, although it might be better placed in a reply as it appears to pre-suppose that the Crown will defend the action based on policy immunities. It may remain in the Statement of Claim. [ 69 ] With respect to paragraph 85, it is certainly open to the Plaintiff to claim punitive damages. The Plaintiff can only recover

aggravated, exemplary, punitive or symbolic damages arising out of the Province’s conduct towards her. I do not see that the allegations in this paragraph are objectionable from a pleadings point of view. They may remain. Whether any of the allegations may support a claim for punitive damage should be determined at trial. Misrepresentation and Fraud Para. 26 Para. 4(ii) of Reply 26 The Crown misrepresented to the Child Welfare Court that they had the ability to keep P.L. safe.

The Crown took P.L. from an unsafe environment and forced her into a more dangerous environment. [ 70 ] The Plaintiff agreed, during argument, to delete paral 4(ii) from the Reply so this is no longer in issue (but for the question of costs in relation to the application to strike). [ 71 ] The Province argues that Paragraph 26 discloses no cause of action and is unconnected with any cause of action plead in the Statement of Claim. I agree. It is struck. Irrelevant Pleadings Paras. 28, 29, 33, 34, 44-50 Paras. 4(

g) and (

h) of Reply 28 P.L. was stigmatised as coming from an allegedly difficult home or family environment. She lost all privacy rights after being apprehended. 29 While P.L. was in the care and custody of the Crown, she was placed into the care of foster parent, Mona and Thomas Svekla, in Edmonton Alberta, against her will. ... 33 P.L. reported the abuse to the Crown and to the police.

The Crown did not press any criminal or provincial charges against Mona and Thomas Svekla. 34 P.L. felt betrayed by the Crown and felt that the Crown did not believe her and were calling her a liar. ... 44 After P.A. disclosed the abuse to the Crown and the Crown took no action against Thomas Svekla and Mona, P.L. lost her self esteem, felt that she was viewed as a liar and suffered severe psychological injuries. 45 After P.L. heard in the news that Thomas Svekla had been charged with murder, her psychological injuries worsened.

46 After P.L. became aware of the media reports about Thomas Svekla, P.L.’s psychological injuries worsened. 47 P.L. ruminates over the danger that the Crown put her in as a child. 48 P.L. ruminates over the incompetence of the Crown to have allowed her to live with a “Dangerous Offender”. 49 P.L. ruminates over the incompetence of the Crown to have not discovered that Thomas Svekla was involved in the legal system most of his life. 50 P.L. ruminates over the failure of the Crown to have taken actions against Thomas Svekla in 1995 that could have prevented the murder and other crimes that he committed. ... 4.

The Defendant, HMQ, fraudulently and/or equitably concealed the claim from the Plaintiff, including but not limited to:

g) advising the public, including the Plaintiff, that HMTQ does not rely on limitation periods when sued by a child who had been in the care of HMTQ;

h) senior management of HMTQ advising front line workers that children in care did not need to sue until 2 years from turning 18. [ 72 ] The Province argues that these paragraphs are irrelevant. [ 73 ] Paragraph 28 is irrelevant. It makes no allegation against the Crown and is not connected with any cause of action. [ 74 ] Paragraph 29 is irrelevant. A young child’s wishes are not determinative in child welfare proceedings. [ 75 ] Para. 33 is irrelevant. Whether charges were laid against Mona or Mr. Svekla is irrelevant to the Plaintiff’s claims against the Crown.

It is struck. [ 76 ] Para. 34 and paras. 44-50 are improper in the pleadings. If relevant, the allegations may be relevant to the Plaintiff’s damages. However, these allegations are at best evidence, and not proper statements in the Statement of Claim. They are struck. [ 77 ] In paragraph 4(

g) of the Reply to Defence, it is irrelevant as to what the Province advised the public. What it advised the Plaintiff is relevant, so the words “the public, including” are struck, leaving the allegation as it relates specifically to the Plaintiff. [ 78 ] Paragraph 4(

h) suffers the same fate. It is irrelevant as to what “senior management advised front line workers” of relating to limitation periods. That allegation does not amount to an estoppel in relation to the Plaintiff’s claim. Breach of Fiduciary Duty

Paras. 10, 12, 20, 21, 57-65 10 The Crown had an ordinary duty and a fiduciary duty to control the day-to day activities that Mona and Thomas Svekla could participate in with the Plaintiff. 12 The Crown had an ordinary duty and fiduciary duty to take all steps and do all things in the best interests of P.L. and to ensure her safety and well being. 20 The Crown had an ordinary duty and fiduciary duty to follow the Crown’s policy manual and practices. After taking custody over P.L., the Crown failed to follow many of their obligations to the Plaintiff as required by the Defendants’ policy manual and practices. These omissions included the failure to: (

a) provide her with a safe residence, (

b) monitor her well being, (

c) properly investigate her foster parents, (

d) conduct a criminal check of her care givers, (

e) ensure that all people living in the home were thoroughly screened, (

f) monitor her foster parents and care givers, (

g) provide medical and counselling treatment, (

h) prepare a proper service plan, (

i) file a proper service plan in court, and (

j) implement a service plan. 21 The Crown had an ordinary duty and fiduciary duty to place P.L. in safe and well caring homes, to provide the care givers with adequate resources and supports and to ensure that P.L. was safe and well cared for. P.L. was placed with Foster Parents, including Mona and Thomas Svekla. ... 57 Each of the foregoing paragraphs is incorporated as if fully set forth herein. 58 The Crown owed an ordinary and fiduciary duty to P.L. because: (

a) She was in a relationship of dependancy and trust relating to their custody and guardianship; (

b) the Crown had an obligation to act in her best interests and for her benefit; (

c) she reasonably expected that the Crown would act in her best interests in administering their custody and guardianship; (

d) she relied on the Crown to act in her best interests; (

e) the Crown controlled all aspects of her custody and guardianship and knew, therefore, that she was relying upon them to properly administer their custody and guardianship; (

f) the Crown had a power of decision-making that directly impacted the care that she received;

(

g) that power or discretion could be exercised unilaterally so as to negatively affect her interests; and (

h) she was peculiarly vulnerable to the prejudice and harm which might result depending upon the way the Defendant exercised its power of decision-making relating to custody and guardianship of her. 59 As the appointed guardian/custodian of the children, the Crown and Mona and Thomas Svekla owed P.L. an ordinary and fiduciary duty of care: (

a) to exercise guardianship over the Plaintiff competently and in accordance with the Act and its objectives; (

b) to provide quality care and planning for her; (

c) to develop and follow a service plan for her that was in her best interests; (

d) to keep her safe and well cared for; (

e) to provide proper medical and psychological treatment to her; and (

f) to protect her legal interests. 60 The Crown, Mona and Thomas Svekla knew or ought to have known that a breach of these duties would cause damage to, or reasonably contemplated that carelessness on hits part might cause damage to P.L. 61 The Crown failed to develop and file in court a service plan for P.L. that was in her best interests. 62 Thereafter, the Crown continued to assert custody and exercise guardianship over P.L. without legal authority and without the consent of P.L. 63 The Crown was negligent and breached its fiduciary duty in that: (

a) The Crown knew or ought to have known that its failure to develop, follow, and review a service plan for P.L. that ensured that she received the resources and the services she needed to be safe was contrary to her best interests and put her at risk of being injured; (

b) The Crown failed to establish, maintain or otherwise provide any adequate system to properly fulfill their mandate; (

c) The Crown failed to implement any or, any appropriate policies, procedures and audit processes to detect and correct errors in the Crown’s administration of custody and guardianship of children in care, including P.L.; (

d) The Crown failed to perform timely periodic reviews to ensure that the Department of child welfare was following appropriate operational, monitoring and auditing procedures; (

e) The Crown failed to properly train and supervise their employees, servants and agents; (

f) The Crown failed to carry out its duty to plan for and ensure that P.L. was safe; (

g) The Crown failed to implement appropriate hiring practices and policies to ensure that workers had adequate education, skills, experience, time and resources to complete their statutory duties to P.L.; (

h) The Crown’s workers who worked with the Plaintiff did not possess adequate education, skill, experience, time and resources to complete their statutory duties to P.L.; (

i) The Crown’s workers who worked with the Plaintiff were expected to meet a maximum caseload standard of 101 hours per month. The Crown’s workers who worked with the Plaintiff were forced to and did work more than the maximum 101 hours per month on a regular basis; (

j) The Crown’s workers who worked with the Plaintiff had case loads that exceeded the maximum safe number of cases for a worker to have; (

k) The Crown was aware that excessive caseloads were causing problems and pressures which affected the workers ability to provide quality services to children in care and to meet children’s and family’s needs. The Crown maliciously, recklessly and carelessly

failed to monitor and remedy the caseload problems, which affected the Plaintiff; (

l) The Crown failed to adequately investigate, monitor and supervise Mona and Thomas Svekla; (

m) The Crown failed to provide adequate counselling and treatment to P.L. after she disclosed her abuse; (

n) Such further or other particulars as P.L. may advise. 64 The reason that the Defendants breached their duties to the Plaintiff was for their own self-interest and with an intent to violate thePlaintiff’s best interests. 65 The Crown breached it’s fiduciary duty to the Plaintiff to avoid the time and effort of completing their duties to the Plaintiff. Theywanted to save time and resources so that they could apply that time and resources to other children on their excessive caseload. Theywanted to cut corners and save money rather than to make decision in the best interests of the children.

They wanted to concealinformation to try to avoid being sued. They wanted to keep a high number of children in care to keep statistics high and to meet quotas.They wanted to exert power and control over the Plaintiff to feel important and powerful. [79] The Crown argues that KLB holds that the public law responsibilities imposed by child protection legislation do not give riseto a fiduciary duty to children in care.

In my view, that argument overstates what KLB holds. [80] Para. 40 of KLB states: A fiduciary obligation to promote the best interests of foster children while in foster care cannot be implied from the statute, because thestatute evinces a clear intent that these children be nurtured in a private home environment; and, as discussed above, this effectivelyeliminates the government’s capacity to exercise close supervision in relation to the foster parents’ day-to-day conduct.

The statute couldnot, therefore, consistently imply that the Superintendent stands under a fiduciary duty to exercise due diligence in ensuring on a day-to-day basis that the foster children’s best interests are promoted. [81] In my view it is beyond the scope of this application to compare the Alberta legislation with the British Columbia legislationwhich was at the heart of the decision in KLB.

KLB carefully examined the Superintendent’s statutory responsibilities and the nature ofthe relationship between the Superintendent or the Province and foster parents in British Columbia. [82] I am not convinced on this application that KLB is the last word on fiduciary duties of child protection authorities in Alberta. [83] It may be that the pronouncement as to fiduciary duties in British Columbia is the law of Alberta, but that conclusion wouldappear to require a careful comparison between the two provinces’ laws, as well as consideration of the factual relationship betweenfoster parents and the Province. [84] In Reference under S-s.18(1) of the Supreme Court Act, 2009 PECA 1 , 2009 PECA 01, Jenkins CJPEI came to asimilar conclusion when considering foster care in Prince Edward Island.

At para. 30, he stated: [30] The content or scope of the duty of care would be ultimately determinable at trial upon consideration of the applicable statutoryprovisions and the evidence of the applicable relationship factors. In general terms, it would be analogous to the duty the BritishColumbia courts found to exist and the Supreme Court of Canada affirmed in K.L.B. v. British Columbia, [1998] B.C.J. No. 470 (QL)(BCSC); affirmed regarding duty of care in 2001 BCCA 221 , [2001] B.C.J. No. 584 (QL) (BCCA); affirmed in 2003 SCC 51, [2003] 2 S.C.R. 403 (SCC).

In K.L.B. supra, the government duty of care was to children who were wards of the state and hadbeen placed in foster homes, and the duty was found to have arisen under the child protection legislation, which required the Director tokeep the children in a suitable place and in fulfillment of that duty to visit and inspect the institution, home or place where the childrenwere placed.

[ 85 ] That being said, the Province also argues that disclosure of a cause of action for breach of fiduciary duty requires allegations of fact and not conclusions of law. [ 86 ] I have already concluded that paras. 65 and 66 should be struck in relation to the Province’s arguments as to misfeasance in public office. To the extent that these paragraphs relate to allegations of breach of fiduciary duty, they are unrelated to the Plaintiff and they disclose no cause of action. At best, these paragraphs are argument, which has no place in pleadings. [ 87 ] As a result of my

interpretation of KLB , I decline to strike “and breached its fiduciary duty” in paragraph 63. Charter Claims Paras. 74-78 74 Each of the foregoing paragraphs is incorporated as if fully set forth herein. 75 The foregoing actions and inactions of the Crown amount to a pattern, practice and custom of failure to exercise reasonable professional judgment and deliberate indifference to the Plaintiff Constitutional rights. These rights include, but are not limited to: (

a) the right to protection from harm - physical, emotional, developmental or otherwise, while in Government custody; (

b) the right not to remain in Government custody unnecessarily; (

c) the right to receive care, treatment and services consistent with competent professional judgment; (

e) the right to the development and implementation of individual service plans that contain specific mandated elements, including documentation of the steps taken to achieve permanency; (

f) the right to live in placements that have the capacity to provide for the essential needs and services of children in their care; (

g) the right to an adequate case record review system; and (

h) the right to have permanency placement at the earliest possible time; (

i) the right to personal autonomy to live his or her own life and to make decisions that are of fundamental personal importance; (

j) the right to physical and psychological integrity, and (

k) the right to security of the person. 76 The Crown violated P.L.’s rights under s. 7 of Life Liberty and Security of the Person by: (

a) having custody over her without lawful authority; (

b) allowing her to be assaulted and abused while its care, and (

c) failing to provide adequate medical and psychological treatment and other services after the abuse and assaults were discovered. 77 The infringements of the Plaintiff’s rights guaranteed by sections 7 of the Charter were not reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Charter . 78 The Defendants violated the Plaintiff’s Charter rights intentionally or with willful disregard for the Plaintiff’s Charter rights.

[88] Case law such as CHS v. Alberta, 2010 ABCA 15 (supra) have concluded that security of the person (s. 7 of the Charter) maybe engaged in the course of delivering child protection services. As argued by the Crown, an essential element of a s. 7 claim is that theCrown have breached a principle of fundamental justice. [89] Principles of fundamental justice in the context of child welfare matters were discussed in Canadian Foundation forChildren, Youth and the Law v. Canada (Attorney General), 2004 SCC 4.

At paras. 8 - 12, McLachlin CJC speaking for the majoritystated: 8 Jurisprudence on s. 7 has established that a “principle of fundamental justice” must fulfill three criteria: R. v. Malmo-Levine, 2003 SCC74 , [2003] 3 S.C.R. 571, 2003 SCC 74, at para. 113. First, it must be a legal principle. This serves two purposes. First, it“provides meaningful content for the s. 7 guarantee”; second, it avoids the “adjudication of policy matters”: Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, at p. 503.

Second, there must be sufficient consensus that the alleged principle is “vital orfundamental to our societal notion of justice”: Rodriguez v. British Columbia (Attorney General), (SCC), [1993] 3S.C.R. 519, at p. 590. The principles of fundamental justice are the shared assumptions upon which our system of justice is grounded.They find their meaning in the cases and traditions that have long detailed the basic norms for how the state deals with its citizens.Society views them as essential to the administration of justice.

Third, the alleged principle must be capable of being identified withprecision and applied to situations in a manner that yields predictable results. Examples of principles of fundamental justice that meet allthree requirements include the need for a guilty mind and for reasonably clear laws. 9 The “best interests of the child” is a legal principle, thus meeting the first requirement. A legal principle contrasts with what Lamer J.(as he then was) referred to as “the realm of general public policy” (Re B.C.

Motor Vehicle Act, supra, at p. 503), and Sopinka J. referredto as “broad” and “vague generalizations about what our society considers to be ethical or moral” (Rodriguez, supra, at p. 591), the use ofwhich would transform s. 7 into a vehicle for policy adjudication. The “best interests of the child” is an established legal principle ininternational and domestic law. Canada is a party to international conventions that treat “the best interests of the child” as a legalprinciple: see the Convention on the Rights of the Child, Can.

T.S. 1992 No. 3, Art. 3(1), and the Convention on the Elimination of AllForms of Discrimination against Women, Can. T.S. 1982 No. 31, Arts. 5(

b) and 16(1)(d). Many Canadian statutes explicitly name the“best interests of the child” as a legal consideration: see, for example, Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 25,28, 60, 67, 68 and 69; Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 25(8), 27(1), 30(3) and (4); Divorce Act, R.S.C. 1985, c. 3 (2ndSupp.), ss. 16(8), (10), 17(5) and (9).

Family law statutes are saturated with references to the “best interests of the child” as a legalprinciple of paramount importance: though not an exhaustive list, examples include: Family Relations Act, R.S.B.C. 1996, c. 128, s.24(1); Child and Family Services Act, R.S.O. 1990, c. C.11, s. 1(a); Children’s Law Reform Act, R.S.O. 1990, c. C.12, s. 19(a).

Clearly,the “best interests of the child” has achieved the status of a legal principle; the first requirement is met. 10 However, the “best interests of the child” fails to meet the second criterion for a principle of fundamental justice: consensus that theprinciple is vital or fundamental to our societal notion of justice. The “best interests of the child” is widely supported in legislation andsocial policy, and is an important factor for consideration in many contexts. It is not, however, a foundational requirement for thedispensation of justice.

Article 3(1) of the Convention on the Rights of the Child describes it as “a primary consideration” rather than“the primary consideration” (emphasis added). Drawing on this wording, L’Heureux-Dubé J. noted in Baker v. Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, at para. 75: The decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive andsensitive to them.

That is not to say that children’s best interests must always outweigh other considerations, or that there will not beother reasons for denying an H & C claim even when children’s interests are given this consideration. It follows that the legal principle of the “best interests of the child” may be subordinated to other concerns in appropriate contexts. Forexample, a person convicted of a crime may be sentenced to prison even where it may not be in his or her child’s best interests.

Societydoes not always deem it essential that the “best interests of the child” trump all other concerns in the administration of justice. The “bestinterests of the child”, while an important legal principle and a factor for consideration in many contexts, is not vital or fundamental toour societal notion of justice, and hence is not a principle of fundamental justice. 11 The third requirement is that the alleged principle of fundamental justice be “capable of being identified with some precision”(Rodriguez, supra, at p. 591) and provide a justiciable standard.

Here, too, the “best interests of the child” falls short. It functions as afactor considered along with others. Its application is inevitably highly contextual and subject to dispute; reasonable people may welldisagree about the result that its application will yield, particularly in areas of the law where it is one consideration among many, such as

the criminal justice system. It does not function as a principle of fundamental justice setting out our minimum requirements for the dispensation of justice. 12 To conclude, “the best interests of the child” is a legal principle that carries great power in many contexts. However, it is not a principle of fundamental justice. [ 90 ] In his proposed amendments, Mr. Lee has provided some 25 particulars of what he characterizes as “principles of fundamental justice in child welfare matters” as follows: 78a. The principles of fundamental justice in child welfare matters require, inter alia:

a) a reasonable process of judicial review prior to or promptly after the state removes a child from the care of the child’s parents, extended family or guardians,

b) all decisions be made in the best interests of the child,

c) the consideration that the family is the basic unit of society and its well-being should be supported and preserved;

d) the consideration of the importance of stable, permanent and nurturing relationships for the child;

e) that intervention services needed by the child should be provided in a manner that ensures the least disruption to the child;

f) the a child who is capable of forming an opinion is entitled to an opportunity to express that opinion on matters affecting the child, and the child’s opinion should be considered by those making decisions that affect the child;

g) the consideration that the family is responsible for the care, supervision and maintenance of its children and every child should have an opportunity to be a wanted and valued member of a family, and to that end

i) if intervention services are necessary to assist the child’s family in providing for the care of a child, those services should be provided to the family, insofar as it is reasonable practicable, in a manner that supports the family unit and prevents the need to remove the child from the family, and ii) a child should be removed from the child’s family only when other less disruptive measures are not sufficient to protect the survival, security or development of the child;

h) that any decision concerning the removal of a child from the child’s family should take into account the risk to the child if the child remains with the family, is removed from the family or is returned to the family;

i) that if it is not inconsistent with protecting the survival, security or development of a child who is in need of intervention, and appropriate community services are available, the child or the child’s family should be referred to the community for services to support and preserve the family and to prevent the need for any other intervention under this Act;

j) that any decision concerning the placement of a child outside the child’s family should take into account

i) the benefits to the child of a placement within the child’s extended family; ii) the benefits to the child of a placement within or as close as possible to the child’s home community, iii) the benefits to the child of a placement that respects the child’s familial, cultural, social and religious heritage, iv) the benefits to the child of stability and continuity of care and relationships,

v) the mental, emotional and physical needs of the child and the child’s mental, emotional and physical stage of development, and vi) whether the proposed placement is suitable for the child;

k) that the provision of intervention services is intended to remedy or alleviate the condition that caused the child to be in need of

k) that the provision of intervention services is intended to remedy or alleviate the condition that caused the child to be in need of intervention;

l) that intervention services are most effective when they are provided through a collaborative and multi-disciplinary approach;

m) if a child is being provided with care under this Act, the child should be provided with a level of care that is adequate to meet the needs of the child and consistent with community standards and available resources;

n) if a child is being provided with care under this Act, a plan for the care of that child should be developed that

i) addresses the child’s need for stability, permanence and continuity of care and relationships, and ii) in the case of a youth, addresses the youth’s need for preparation for the transition to independence and adulthood;

o) that a person who assumes responsibility for the care of a child under this Act should endeavour to make the child aware of the child’s familial, cultural, social and religious heritage;

p) that there should be no unreasonable delay in making or implementing a decision affecting a child;

q) that if the child is an aboriginal child, the uniqueness of aboriginal culture, heritage, spirituality and traditions should be respected and consideration should be given to the importance of preserving the child’s cultural identity;

r) that children and families affected by child welfare proceedings be advised of their rights;

s) Consideration of International Conventions;

t) judicial review of the Crown’s actions to remove and keep children from their families,

u) the prompt development of a plan of care for the child to prevent the child from “drifting” in the care of the Crown,

v) the filing of a plan of care for the child to document that a plan has been created and to allow for judicial review of the plan,

w) an application to Court to keep a child in care if the Crown loses legal authority over the child,

x) the Crown to provide full disclosure of all relevant facts to the Court and all interested parties affected by a Court application, and

y) the Crown complying with the Child Welfare Act, the Family Law Act and the Domestic Relations Act. 78b. The actions taken by the Crown violated the principles of fundamental justice because they did not meet the requirements of paragraph 78a. [ 91 ] (

b) has already been rejected by the Supreme Court in the Canadian Foundation case. [ 92 ] It is difficult to see that many of these particulars meet the three-part test in Canadian Foundation of being 1) a legal principle, 2) that enjoys sufficient consensus that it is vital or fundamental to our societal notion of justice, and 3) that it is capable of being identified with precision and applied to situations in a manner that yields predictable results. [ 93 ] For the purposes of advancing a s. 7 claim, the Plaintiff needs to advance breaches of legal principles and not legal arguments. [ 94 ] I can only identify potential legal principles in a, e, m, p, r, s, t, w, x, and y. [ 95 ] Civil remedies against the Crown for Charter violations are in their early stages of development.

The Charter itself is only 30 years old. I do not think that it can be said that a comprehensive list of “principles of fundamental justice” has been created as yet. [ 96 ] As a result of this being a developing area of the law, in my view the Plaintiff should be given some latitude with respect to pleading Charter violations.

[ 97 ] I do not see that proposed 78b satisfies the requirement of providing sufficient particulars as to which actions violated these principles. Further amendments are required. International Conventions Paras. 79 and 80 79 The Plaintiff relies on

Article 3, 5, 7, 9, 12, 16, 20, 25 and 26 of the United nations Universal Declaration of Human Rights . 80 The Plaintiff relies on

Article 2, 3, 4, 5, 6, 7, 8, 9, 12, 14, 15, 16, 18, 19, 20, 24, 25, 27, 28, 30, 37 and 39 of the United Nations Convention on the Rights of the Child . [ 98 ] Similar allegations have been ordered struck in LC v. Alberta ( supra ). They are not connected in any way with the Plaintiff and create no independent cause of action in the Plaintiff’s favour. They should be struck. Failing to Protect Legal Interest Paras. 3, 4(c)-(

f) of Reply 3 HMTQ was the guardian of the Plaintiff and as guardian of the Plaintiff, HMTQ ought to have commenced a lawsuit for the Plaintiff within the limitation period. 4 The Defendant, HMTQ, fraudulently and/or equitably concealed the claim from the Plaintiff, including but not limited to:

c) failing to tell the Plaintiff and the Plaintiff’s grandmother that the Plaintiff had a cause of action against all of the Defendants,

d) failing to tell the Plaintiff and the Plaintiff’s grandmother that HMTQ was vicariously liable for the actions of it’s foster parents,

e) failing to tell the Plaintiff and the Plaintiff’s grandmother that the Plaintiff could make an application for crimes compensation benefits,

f) failing to tell the Plaintiff and the Plaintiff’s grandmother that HMTQ had been negligent as described in the Statement of Claim. [ 99 ] The Province argues that these paragraphs introduce additional pleas that the Province failed to protect the Plaintiff’s legal rights. In the format plead, the allegations relate to fraudulent concealment so as to extend the applicable limitation period. The Province plead limitation periods despite the Plaintiff’s “consent” to a stay of the failure to sue cause of action in the Statement of Claim.

I do not see that consent, or the fact that the cause of action is presently stayed, as bars to the Plaintiff getting its pleadings in order. These paragraphs may remain in the Reply to Defence. Vicarious Liability Paras. 2, 9, 54 2 HMTQ administered the Child Welfare Act , S.A. 1983, c. C-8.1 and amendments thereto (the “Act”). HMTQ is vicariously liable for

the acts and omissions of the Director of Child Welfare and that authority’s officials, employees, servants, agents, Mona and Thomas Svekla. 9 The Crown had total control over the day-to-day activities that Mona and Thomas Svekla could participate in with the children and as such are vicariously liable for the actions of Mona and Thomas Svekla. 54 The Crown is vicariously liable for the abuse and assaults committed by Mona and Thomas Svekla. [ 100 ] The Province argues that KLB has finally determined the issue of vicarious liability of the Crown for the torts of foster parents.

That is the case in British Columbia, but in the absence of a detailed comparison of the Alberta statutes and the British Columbia regime, and an examination of the facts relating to the relationship between foster parents in Alberta and the Director or the Province, I do not consider that the law is necessarily settled in Alberta. [ 101 ] The factual allegation in para. 9 may distinguish this case from KLB , and should be allowed to remain as supporting the allegation in para 2 as well as in para. 54.

Conclusion on Striking Motion [ 102 ] As held above, a number of provisions in the Statement of Claim should be struck. Other allegations objected to by the Province have been allowed to remain. Striking applications do not test the strength of the cause of action and do not consider facts not plead. Factual matters and weak claims may be tested through

summary dismissal procedures, but not pursuant to Rule 3.68. Application for Leave to Use Information from Other Lawsuits [ 103 ] The Plaintiff seeks leave of the court to use information obtained through affidavits of records or questioning in connection with her application for payment of advance costs by the Province. [ 104 ] Rule 5.33 provides:

(1) The information and records described in subrule (2) must be treated as confidential and may only be used by the recipient of the information or record for the purpose of carrying on the action in which the information or record was provided or disclosed unless (

a) the Court otherwise orders, (

b) the parties otherwise agree, or (

c) otherwise required or permitted by law.

(2) For the purposes of subrule (1) the information and records are: (

a) information provided or disclosed by one party to another in an affidavit served under this Division; (

b) information provided or disclosed by one party to another in a record referred to in an affidavit served under this Division; (

c) information recorded in a transcript of questioning made or in answers to written questions given under this Division.

[105] The Rule essentially codifies the common law implied undertaking of confidentiality with respect to such information, describedin Wirth Ltd. v. Acadia Pipe & Supply Corp., (Alta. C.A.) [106] The Plaintiff cites Cheyne v. Alberta, 2003 ABQB 244, in support of her application to lift the implied undertaking with respectto records and information given in questioning in other child welfare-related lawsuits against the Province. [107] Mr.

Lee, on behalf of the Plaintiff, quite appropriately described the sought-after materials in a general way in his client’saffidavit in support of the application, but placed the materials themselves in sealed envelopes so that the actual contents were notdisclosed or made public. [108] In Cheyne, Acton J. lifted the implied undertaking. Ch

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