T.K. Plaintiff/Respondent - v. -, 2012 ABQB 330

Court of Queen ’ s Bench of Alberta Citation: T.K. v. Alberta ( Child, Youth and Family Enhancement Act , Director), 2012 ABQB 330 Date: 20120518 Docket: FL03 28672, FL03 28673 Registry: Edmonton Between: T.K. Plaintiff/Respondent - and - Director of the Child, Youth and Family Enhancement Act Defendant/Applicant Restriction on Publication Identification Ban – See the Family Law Act ,

section 100 . By Court Order, there is a ban on publishing information that may identify the children or guardians in this matter. NOTE: This judgment is intended to comply with the restriction so that it may be published. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ I. Introduction

[ 1 ] The Director of the Child, Youth and Family Enhancement Act RSA 2000 c. C-12 ( CYFEA ) applies for an order the Plaintiff T.K.’s applications for guardianship and parenting should be struck on the basis of issue estoppel/ res judicata, collateral attack and abuse of process. For reasons which follow I am prepared to give the order sought. II. Background [ 2 ] Two sibling children are the subject of these proceedings. They are S.P., 8, and J.T., 5. In August, 2006 S.P. was placed in T.K.’s home. She was placed there with two other siblings. In April, 2007 J.T. was placed as well in T.K.’s home.

In November, 2007 T.K. and her husband separated. In February, 2008 one of the siblings left T.K.’s care at T.K.’s request. In September, 2008 another of the siblings left T.K.’s care, again at her request. [ 3 ] On July 8, 2009 concerns arose regarding T.K.’s parenting of the remaining siblings S.P. and J.T. On July 24, 2009 The Director removed these children temporarily from T.K.’s care. On August 12, 2009 the Director removed them permanently from her care. On February 4, 2010 the Director cancelled T.K.’s residential facility license. [ 4 ] T.K. sought an administrative review of the Director’s decisions.

That review confirmed the Director’s decisions. T.K. then appealed to a CYFEA Appeal Panel. [ 5 ] The Appeal Panel convened, heard witnesses and took evidence on June 23, August 9-10, September 13, 15-30, October 1 and 15, and November 1-2, 2010. Over these 24 days the Appeal Panel heard oral evidence of 16 witnesses called by the Director. It heard oral evidence of 11 witnesses called by T.K. One further witness was called by counsel for the children. [ 6 ] T.K. was present throughout the hearing. She had the right to counsel and was in fact assisted by a support person experienced in Appeal Panel proceedings.

T.K. and/or the support person cross examined each of the Director’s witnesses and the witness called by counsel for the children. [ 7 ] The record of the proceedings before the Appeal Panel comprises five volumes, 374 pages of which were presented on behalf of the Director, 1,309 pages on behalf of T.K.

At the conclusion of the evidence all parties submitted written argument. [ 8 ] No one in the within application advised that before the Appeal Panel any complaint or objection was raised regarding the Appeal Panel’s process or the nature of the evidence considered by the Appeal Panel in reaching its decisions. [ 9 ] The Appeal Panel delivered written reasons in a series of three decisions all filed February 14, 2011. The Director’s decisions were upheld.

The Appeal Panel concluded that in all the circumstances it would not be in S.P.’s and J.T.’s best interests to be returned to T.K.’s home. [ 10 ] In arriving at its decisions regarding best interests the Appeal Panel took into account s. 2 of the CYFEA : Matters to be considered 2 If a child is in need of intervention, a Court, an Appeal Panel and all persons who exercise any authority or make any decision under this Act relating to the child must do so in the best interests of the child and must consider the following as well as any other relevant matter:

(

a) the family is the basic unit of society and its well being should be supported and preserved; (

b) the importance of stable, permanent and nurturing relationships for the child; (

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

d) 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; (

e) 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 reasonably 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; (

f) subject to clauses (

e) and (g), if a child has been exposed to domestic violence within the child’s family, intervention services should be provided to the family in a manner that supports the abused family members and prevents the need to remove the child from the custody of an abused family member; (

g) 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; (

h) 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; (

i) 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; (

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

k) intervention services are most effective when they are provided through a collaborative and multi disciplinary approach; (

l) 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; (

m) 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; (

n) 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; (

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

p) 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. [ 11 ] The Appeal Panel paid particular attention to subparagraphs (b), (g), and (

k) of s. 2 of the CYFEA . [ 12 ] The Appeal Panel found there was evidence presented that raised concerns about the use of physical restraints in T.K.’s home to manage the children’s behaviour. That finding came after consideration of certain conflicting evidence and credibility findings by the Appeal Panel. The Appeal Panel concluded on all the evidence that the physical safety of S.P. and J.T. could not be assured if they were returned to T.K.’s home. [ 13 ] The Appeal Panel stated it was unable to conclude whether there was a risk of “emotional injury” as defined in s. 1(3) (

a) of the CYFEA . The Appeal Panel did conclude however that it was not satisfied the physical and emotional safety of these children could be assured if they were returned to T.K.’s home. [ 14 ] Under the heading “Other considerations” the Appeal Panel also found that: During her testimony, the Enhancement Appeal Panel found [T.K.] demonstrated a lack of insight regarding her parenting abilities. Although counselling was recommended for [T.K.] by both [K.H.] and Dr. [H], [T.K.] did not acknowledge to the Enhancement Appeal Panel a need for herself to attend counselling sessions.

The Enhancement Appeal Panel found that the CFSA Service Team members would have difficulty working with [T.K.] in her role as a foster parent for [S.P.] and [J.T.]. The Enhancement Appeal Panel also found they could not be certain that T.K. would continue to arrange for sibling access for [S.P.] and [J.T.].

[ 15 ] Finally, the Appeal Panel took into account that permanency for the children was being explored, and that “therefore one more move back to the Appellant only to be removed if the placement is unsuccessful or if adoptive parents are found, is not in the best interests of the children”. [ 16 ] T.K. was entitled to appeal the Appeal Panel’s decisions to the Court of Queen’s Bench: s. 120.1(1) CYFEA . T.K. did not appeal. However, on March 28, 2011, she brought a claim under the Family Law Act S.A. 2003 c. F-4.5, for guardianship and parenting which is the subject of the within striking application.

And on May 10, 2011 she filed an originating application for judicial review of the Appeal Panel’s decision. The judicial review application was scheduled to be heard on April 23, 2012. On the eve of that application, T.K., then through counsel, formally abandoned the judicial review. [ 17 ] In her March 28, 2011 affidavit filed in support of the FLA claim T.K. noted she was seeking an order compelling the Director to provide her with a full copy of the transcript of the Appeal Panel proceedings. She identified no other evidence she proposed to enter in the FLA claim.

Nor during the case management process, or in any of the submissions before me in the within application, was there any concrete suggestion of new evidence on T.K.’s behalf other than what was before the Appeal Panel. [ 18 ] T.K.’s March 28, 2011 affidavit also states: I would like to have the decision of the [Appeal Panel] ... reviewed.

I believe that the evidence that was presented was not fully considered by the Appeal Panel as there are several errors of fact in the written decision. [ 19 ] Such was the state of T.K.’s FLA claim when the parties appeared before me to argue the within striking application. [ 20 ] In a decision made March 11, 2010 Kvill P.C.J. decided whether to give T.K. access to the children. She declined to do so in part owing to the fact the Appeal Panel proceedings were to unfold in the near future. No one objected to the transcript of Judge Kvill’s decision being put before me.

Without attempting at the moment a more complete

summary of her findings, it is enough to say Judge Kvill made numerous findings adverse to T.K. and questioned whether she was then acting in the best interests of the children. III. Positions of the parties A. The Director [ 21 ] The Director argues T.K.’s FLA claim is a veiled attempt to forum shop for a different result than that reached by the Appeal Panel.

While T.K. was entitled to appeal or seek judicial review, she is not entitled in a new FLA claim to re-try the very question between the same parties decided in a final way in the judicial forum of the Appeal Panel. [ 22 ] The Director notes T.K.’s FLA claim is governed by s. 18 of the Act : Best interests of the child 18(1) In all proceedings under this Part except proceedings under

section 20, the court shall take into consideration only the best interests of the child.

(2) In determining what is in the best interests of a child, the court shall

(

a) ensure the greatest possible protection of the child’s physical, psychological and emotional safety, and (

b) consider all the child’s needs and circumstances, including (

i) the child’s physical, psychological and emotional needs, including the child’s need for stability, taking into consideration the child’s age and stage of development, (ii) the history of care for the child, (iii) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, (iv) the child’s views and preferences, to the extent that it is appropriate to ascertain them, (

v) any plans proposed for the child’s care and upbringing, (vi) any family violence, including its impact on (

a) the safety of the child and other family and household members, (

b) the child’s general well being, (

c) the ability of the person who engaged in the family violence to care for and meet the needs of the child, and (

d) the appropriateness of making an order that would require the guardians to co operate on issues affecting the child, (vii) the nature, strength and stability of the relationship (

a) between the child and each person residing in the child’s household and any other significant person in the child’s life, and (

b) between the child and each person in respect of whom an order under this Part would apply, (viii) the ability and willingness of each person in respect of whom an order under this Part would apply (

a) to care for and meet the needs of the child, and (

b) to communicate and co operate on issues affecting the child, (ix) taking into consideration the views of the child’s current guardians, the benefit to the child of developing and maintaining meaningful relationships with each guardian or proposed guardian,

(

x) the ability and willingness of each guardian or proposed guardian to exercise the powers, responsibilities and entitlements of guardianship, and (xi) any civil or criminal proceedings that are relevant to the safety or well being of the child.

(3) In this section, “family violence” includes behaviour by a family or household member causing or attempting to cause physical harm to the child or another family or household member, including forced confinement or sexual abuse, or causing the child or another family or household member to reasonably fear for his or her safety or that of another person, but does not include (

a) the use of force against a child as a means of correction by a guardian or person who has the care and control of the child if the force does not exceed what is reasonable under the circumstances, or (

b) acts of self protection or protection of another person.

(4) For the purpose of subsection (2)(b)(vi), the presence of family violence is to be established on a balance of probabilities. [ 23 ] The Director also notes the FLA requirement, in s. 21(5), that a guardian be responsible for nurturing the child’s physical, psychological and emotional development; that s. 21(1) of the FLA repeats that “a guardian shall exercise the powers, responsibilities and entitlements of guardianship in the best interests of the child”; and that s. 23 (3) provides: The court on hearing an application for a guardianship order shall consider, and may require the applicant to provide the court with a report prepared by a qualified person respecting, whether it is in the best interests of the child that the applicant be appointed as a guardian of the child, including whether the proposed guardian (

a) is suitable as a guardian, and (

b) has the ability and is willing to exercise the powers, responsibilities and entitlements of guardianship in respect of the child. [ 24 ] The Director argues the question of best interests under the FLA has been determined by the Appeal Panel albeit in the context of the CYFEA hearing. Granted, the characterization of best interests, and the process for determining it, differs between the two Acts . But the Director argues the question is the same, and so too therefore should be the answer. The Director thus argues the tests for issue estoppel/ res judicata set out in Danyluk v.

Ainsworth 2001 SCC 44 are met. [ 25 ] The Director argues further T.K.’s FLA claim is an impermissible collateral attack on the Appeal Panel’s decision which she decided neither to appeal nor to challenge with her application for judicial review: Given the Appeal Panel found Ms. T.K. is unable to meet the best interests of the children in the director’s care, it would be nonsensical for the court to find she can meet the best interests of the children not in the director’s care.

The guardianship and parenting applications thus threaten to render the Appeal Panel’s decisions meaningless. [ 26 ] Finally, the Director argues the FLA claim is an abuse of the court’s process. B. Counsel for the children

[ 27 ] Counsel for the children generally supports the Director’s position.

Counsel emphasizes however that the current legal proceedings are impeding the development of a permanency plan for each of these children. [ 28 ] Counsel expresses concern for the following passages of time: it has been some 31 months since the children were removed from T.K.’s care; close to 22 months since the Appeal Panel began to hear T.K.’s appeal from the Director’s decisions; 15 months since the Appeal Panel’s February 14, 2011 findings; and more than 13 months since T.K. commenced her FLA application. [ 29 ] As will be noted in what follows, there is some dispute as to who is responsible for the passage of time.

As such, it is useful to set out the following chronology of the FLA application as revealed in the court and case management record: a. the FLA claim was brought some six weeks after the Appeal Panel released its decisions; it was returnable April 20, 2011; on that date T.K. consented to the claim being adjourned sine die ; b. on May 10, 2011 T.K. filed an originating application for judicial review of the Appeal Panel’s decisions; both matters were ordered to case management on May 17, 2011; c. a series of case management conferences unfolded, on June 28, and September 27, 2011, and January 17, February 8, and March 14, 2012; d.

On September 14, 2011 the Director gave notice of her intention to bring the within application; e. At the September 27, 2011 case management conference T.K. objected to the Director’s striking out application on the basis of delay. However, by then T.K. had not advanced her FLA application since it was adjourned on April 20, 2011; f. On September 27, 2011 I directed the parties to seek dates as early as mid-November, 2011 for the Director’s application; g. Counsel for the Director asked T.K. for dates in emails of September 27, November 7 and 16, 2011, and in letters of October 5, 12 and 27, 2011.

T.K. did not respond and no date for the Director’s application was set by mid-November, 2011; h. The question of scheduling was next spoken to at a case management conference on January 17, 2012. T.K. indicated she had not agreed to dates earlier because she wished to retain counsel. Having been unsuccessful in that regard, by January 17, 2012 T.K. was prepared to agree to dates to proceed without counsel. The Director was directed to arrange dates as soon as possible; i.

Further difficulties were encountered around T.K.’s wish to retain counsel, notwithstanding that she had indicated on January 17, 2012 she would proceed without. In any event, T.K. refused to consider dates before the end of June, 2012; j. This stalemate led to a further case management conference of February 8, 2012. At that time a date of March 23, 2012 was set for the application, over T.K.’s objections; k. Some five weeks later, at a March 14, 2012 case management conference and on the eve of the March 23, 2012 application date, T.K. appeared now through counsel.

Over the objections of the Director and counsel for the children the March 23, 2012 date for the Director’s application was cancelled; l. In due course May 9, 2012 was agreed to for the hearing of the Director’s application.

[ 30 ] Still with regard to delay, counsel for the children refers to comments by Kvill P.C.J. as long as ago as March 11, 2010 that the children were being adversely affected, in terms of permanency arrangements, by the ongoing litigation. Counsel refers to s. 2(

o) of the CYFEA and the admonition “there should be no unreasonable delay in making or implementing a decision affecting a child”. [ 31 ] Finally, with regard to abuse of process, counsel for the children refers to Alberta v. W.(B.J.) (1990), 110 A.R. 326. In that case, access had been determined in the Court of Queen’s Bench in favour of a father. The then-Director of Child Welfare, apparently sympathetic to the mother’s position, applied for guardianship. It was found the Director’s application was brought for the sole purpose of enabling the Director then to seek to end the father’s access.

Essentially the same evidence would be called in the Director’s application as had been called in the earlier proceedings before the Court of Queen’s Bench. The Director had been aware of the earlier proceedings. It was found the Director made a conscious decision to allow the Court of Queen’s Bench to make the access decision, rather than to start a proceeding under the Child Welfare Act . The father objected to the Director’s application on the basis of res judicata , issue estoppel and abuse of process.

Kerans J.A. for the court held: This issue may or may not be res judicata the Provincial Court of Alberta, but the new proceeding is, having regard to its history, an abuse of process. Having first decided to let the Queen’s Bench of Alberta decide this issue, the director then took a new proceeding. Even though it was not in any contemptuous way, that decision is, in our view, to expose the Provincial Court of Alberta to applications which amount to nothing more than appeals of Queen’s Bench orders. (at para. 10) [ 32 ] Counsel argues T.K.’s FLA application cannot stand in the face of W.(B.J.) .

While the roles are reversed, counsel argues that here T.K. was fully aware of her right to appeal the Appeal Panel’s decisions, or to judicially review them. She went neither route. Now her FLA application is in effect an appeal. No new evidence is proposed, no new issues will be determined. Counsel says in these circumstances the FLA claim is an abuse of process. C. T.K. [ 33 ] T.K. argues the FLA claim is to determine guardianship.

This the Appeal Panel had no jurisdiction to decide and thus it cannot be maintained the issue of guardianship is res judicata , subject to issue estoppel/ res judicata , collateral attack, or abuse of process. [ 34 ] T.K. argues the best interests considerations under the CYFEA and FLA are different. [ 35 ] T.K. cites many decisions which she argues say placement and guardianship decisions can be made concurrently or independently of each other.

She notes that had she been successful before the Appeal Panel, she would still have had to apply subsequently for guardianship. [ 36 ] T.K. argues decisions of the Appeal Panel are not permanent, and are not final. They thus do not meet that aspect of the Danyluk test for issue estoppel/ res judicata. [ 37 ] As to delay, while not disputing the benefit of timely decision making around permanency, T.K. blames the Director for delays, not herself.

And in any event, concerns for delay should not preclude the right to apply for a FLA guardianship or parenting order. [ 38 ] T.K. argues the Appeal Panel’s process around accepting hearsay testimony and unsworn evidence fails to meet the more stringent process in an FLA proceeding. She goes on to say: In the matter before the Appeal Panel, hearsay information included, but was not limited to, the hearsay evidence of Ms. T.K.’s ex- husband, G.K., who was not made available for cross examination but whose evidence was given as a factor by the Appeal Panel in why

they cannot assure the physical safety of the children. This notwithstanding there is no evidence, not even hearsay evidence of physical injury to any one of the 56 foster children who were resident in Ms. T.K.’s foster home over the 17 years she ran a foster home. [ 39 ] This paragraph aside, in neither her brief nor before me in argument did T.K. point to other concrete or specific concerns about the evidence before the Appeal Panel. [ 40 ] T.K. notes the Appeal Panel took into account, as part of best interests, her ability to work with the Director and the service team.

She says that would be an irrelevant consideration in a FLA private guardianship application. [ 41 ] Finally, T.K. argues she can be given guardianship yet still not have day-to-day care of the children. She denies the Appeal Panel dealt specifically with her ability to parent, but rather made findings only regarding the children’s placement. IV.

Analysis [ 42 ] I will address each of T.K.’s objections to the Director’s application in turn, and of course the positions of the parties opposite, although not necessarily in the same order in which they were presented. [ 43 ] Whether or not guardianship is available in theory without day-to-day care fails to work around the requirement that guardianship must still be in the best interests of the children.

I accept the position of the Director and counsel for the children that at least implicit in the placement decision the Appeal Panel found T.K.’s ability to parent the children was deficient and therefore not in the children’s best interests. [ 44 ] That the Appeal Panel does not decide guardianship obscures the real point, that it does decide what is in the best interests of the children. I agree with the Director that no material or substantive difference exists between the characterization of best interests in the CYFEA and FLA .

Best interests permeates both Acts and was clearly the question before the Appeal Panel. [ 45 ] T.K. was unable to distinguish the Director’s authorities on the question of whether the “same question has already been decided”. Danyluk establishes that once a material fact is found to exist by a competent tribunal, the same issue cannot be relitigated in subsequent proceedings involving the same parties. The question however must be “fundamental to the decision arrived at”: Danyluk , at para. 24 .

Here, the question of best interests was obviously fundamental to the decisions arrived at by the Appeal Panel, as it would be before a FLA hearing. [ 46 ] The authorities T.K. refers to regarding placement and guardianship decisions are not on point and are therefore distinguishable. They are all cases in which different parties are making the different applications.

There is no case argued before me in which the same party, having failed before one adjudicator, is allowed to proceed on the same question before another. [ 47 ] T.K. is correct the Appeal Panel’s consideration of her inability to work with the service team would form no part of a FLA best interests deliberation. This only raises the issue, however, of how central the “ability to cooperate” finding was to the Appeal Panel’s best interests decision.

Reading the decision as a whole, little reason exists to conclude that finding was central or that without it the Appeal Panel would have reached a different conclusion. The “ability to cooperate” factor was just one of many considered by the Appeal Panel.

The Appeal Panel also grounded its best interests decision on evidence regarding the children’s physical and emotional needs; the history of their care, including serious findings regarding the use of restraints; T.K.’s proposed parenting plan; the nature and strength of the children’s relationship with T.K. herself, and with their other siblings; and T.K.’s apparent lack of commitment to fostering those sibling relationships. [ 48 ] Granted, success before the Appeal Panel may have required T.K. to apply for guardianship.

In that event, T.K. may well have argued the question of best interests had been determined in her favour, leaving it decided for guardianship purposes. Be that as it may, certainly none of the authorities T.K. relies on diminish the Director’s arguments based on res judicata , collateral attack or abuse of process.

[49] The Appeal Panel’s decisions on the question of best interests, if not permanent, are certainly final. Final is in the context ofthe decision-making body itself on the question before it and on the evidence. The existence of appeals or judicial review does not speakagain a final decision of the tribunal. As noted by the Director, the Appeal Panel does not have the power to revise or rescind its owndecisions: Minott v. O’Shanter Development Co. (ON CA), [1999] O.J. No. 5 (C.A.) [50] That its decisions are final is but one element of the test for issue estoppel/res judicata.

No one disagreed with the test asstated in the Director’s materials: a. the judicial decision which is said to create the estoppel is final; b. the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel israised or their privies; and c. the same question has been decided. [51] Quoting from Danyluk the Director cites the three elements relevant to whether the decision, though made by anadministrative tribunal, is “judicial”: First is to examine the nature of the administrative authority issuing the decision.

Is it an institution that is capable of receiving andexercising adjudicative authority? Secondly, as a matter of law, is the particular decision one that was required to be made in a judicialmanner? Thirdly, as a mixed question of law and fact, was the decision made in a judicial manner? [52] The Appeal Panel is obviously capable of receiving and exercising adjudicative authority. As noted by the Director, itsmembers are appointed to perform such functions with prescribed authority in the CYFEA; its process is bound by the AdministrativeProcedures and Jurisdiction Act RSA 2000 c.

A-3, subject only to s 119(1.1) of the CYFEA which enables the Appeal Panel to determinewhether representations before it will be oral or in writing, and to consider any new evidence raised or presented in a hearing before it -thus hearings are de novo; parties may appear before it through counsel or others; it may direct counsel for an unrepresented child; itmakes findings of fact and applies law to those findings; as it did in this case - in T.K.’s favour - it has the ability to consider legal issuesgoing to its own jurisdiction; as it did in this case, it has the power to call for written argument; and finally as it was obliged to do, it gaveextensive written reasons. [53] No one disputes the decision made by the Appeal Panel was one required to be made in a judicial manner. [54] T.K.’s only obvious objection under this part of the test is the fact the Appeal Panel has the power to and did accept hearsayand unsworn testimony, something a court hearing a FLA claim cannot do at least arguably without good reason.

T.K. cited no authorityhowever in support of her submission that this is fatal to an overall assessment of whether the Appeal Panel can or does act judicially.What’s more, there is no evidence T.K. objected to any such evidence during the 24-day hearing before the Appeal Panel. And as noted,she referred to only one concrete example of allegedly objectionable hearsay relied on in the hearing. [55] T.K.’s few objections on these process points pale in comparison to the many other factors relevant to whether the AppealPanel acts judicially.

There is no argument that on the whole the Appeal Panel does not meet administrative law procedural fairness. Asnoted, again in Minott: The decision of an administrative tribunal may be a judicial decision for the purpose of issue estoppel though the tribunal’s proceduresdo not conform to the procedures in a civil trial. Provided the tribunal’s procedures meet fairness requirements and provided the tribunalis carrying out a judicial function, its decision will be a judicial decision. (at para. 35) [56] Granted, a court hearing a FLA claim may apply an arguably more rigorous process.

That does not mean a procedurally fair

[56] Granted, a court hearing a FLA claim may apply an arguably more rigorous process. That does not mean a procedurally fairadministrative law process adopted by the Appeal Panel is in any way inadequate. [57] The parties before the Appeal Panel were the same as would be before the court in a FLA application. [58] I have already dealt with whether the same question was already decided. [59] For reasons set out above I find the first three elements of the Danyluk test are met.

On the face of it then, issue estoppel/resjudicata serves to stop T.K. from going forward under the FLA. [60] It remains to consider whether I should exercise my discretion to avoid operation of issue estoppel/res judicata in this case onthe basis of injustice, as I am required to do as set out in Danyluk, where the court cautioned against a “mechanical” application of adoctrine meant to serve the ends of justice. The court noted the scope of the discretion, while limited, is somewhat broader in the contextof administrative tribunals: There is no doubt that such a discretion exists.

In General Motors of Canada Ltd. v. Naken, (SCC), [1983] 1 S.C.R. 72,Estey J. noted, at p. 101, that in the context of court proceedings “such a discretion must be very limited in application”. In my view thediscretion is necessarily broader in relation to the prior decisions of administrative tribunals because of the enormous range and diversityof the structures, mandates and procedures of administrative decision makers. (Danyluk, at para. 62) [61] At issue here is whether issue estoppel/res judicata applies to a claim under the FLA and thus arguably a more limiteddiscretion should be applied.

Out of an abundance of caution however I would apply the broader discretion in my analysis on this point,which follows. [62] The Director argues it would be an injustice not to allow issue estoppel/res judicata to operate. That is a bit of a twist on themore conventional approach which is to consider injustice from the point of view of the party against whom the doctrine operates. [63] It would indeed be preferable to deal with the questions of discretion and injustice at least initially from T.K.’s perspective.Here it is difficult to do so.

T.K. made few if any submissions squarely on the point, even though she had the advantage of filing her briefmany weeks after the briefs of the Director and the children. [64] From the Director’s perspective, supported by counsel for the children, the justice considerations weigh entirely against T.K. I agree. [65] Much has already been said about the fact T.K. had the opportunity to appeal/seek judicial review the Appeal Panel’sdecisions. No explanation was given for the failure to appeal. As to the abandoned judicial review, there is some suggestion judicialreview could not provide the remedy T.K. sought.

This was not fleshed out before me; there may be other reasons why T.K., in herjudgment and aided by counsel, decided to abandon the judicial review. In any event, T.K. did not argue any injustice arose from theremedies available to her from the Appeal Panel’s decision. [66] The issue of delay was raised in argument as a reason the FLA claim should be struck. In the context of injustice to T.K., andits impact on the best interests of these children, the issue of delay is worth further comment. [67] I have some sympathy for T.K.’s submission that delay alone, with or without reference to s. 2(

o) of the CYFEA, should notautomatically trump a meritorious guardianship application. On different facts a party in T.K.’s position might overcome delayarguments. But not here, as I find T.K. is the author of at least the bulk of the delay, a delay I also find is grossly out of proportion withthe needs of these children as outlined by their counsel in submissions before me.

[68] T.K. argues the Director waited too long to bring the within striking application. The application was brought some sixmonths after T.K.’s FLA application was filed in late March, 2011. It is worth asking why it took that long. The answer likely includesthe fact the Director was in part occupied by T.K.’s judicial review application filed May 10, 2011. That application, together with FLAclaim, resulted in the Director applying for case management which was granted on May 17, 2011. The first case managementconference took place on June 28, 2011.

The issue of T.K.’s access to the Appeal Panel’s extensive record was addressed at that time,amongst other things. In the weeks that followed, the issue of whether T.K. was entitled to production of the record at no expense to herdoubtless occupied the Director’s time, as it did the court’s. By mid-September, 2011 the Director gave notice of her intention to apply tostrike the FLA claim. [69] This review of activity from late March until mid September, 2011 persuades me that the Director was “on the file” duringthat time, and not just the FLA file as T.K. was litigating on more than one front.

During that same roughly six months T.K. did little ifanything to advance her own FLA application, not to mention the judicial review. [70] Even if I were to conclude charitably that the initial six months was a “wash” between the parties so far as delay isconcerned, I would find that thereafter all the delay can be attributed to T.K. herself. [71] As is evident from the chronology of events set out earlier in these reasons, this striking application was to be heardoriginally by mid-November, 2011. In fact it was heard only on May 9, 2012. The reason for that delay was T.K.’s refusal to agree todates.

Indeed, at one point she wished to have dates set only after June, 2012. Realistically that would have resulted in a fall, 2012hearing. The May 9, 2012 date was fixed only by the persistence of counsel for the Director and for the children, aided by the court andthe case management process. [72] Mindful of these various delays on T.K.’s part, it is worth revisiting the comments of Judge Kvill in the previously-mentioned March, 2010 access proceedings.

Even at that relatively early point in time, Judge Kvill observed as follows with regard to theimpact on these children of the litigation: To put permanency plans for the children on hold while Ms. T.K. pursues (her) own personal agenda seems ... to be contrary to the bestinterests of these children. There will never be an end in sight for these children ...

To compel a child to wait while parties pursue mattersthrough administrative panels, administrative appeals, court actions all defeats the purpose ... of child protection legislation which is tofind stability and permanence for these children. [73] These comments help put into perspective the impact on the best interests of the children of yet further delays since March,2010, all of which are relevant to whether any discretion should be exercised in T.K.’s favour to avoid the operation issue estoppel/resjudicata on the basis of injustice. [74] In all the circumstances there is utterly no basis for the exercise of any such discretion. [75] My findings now made regarding issue estoppel/res judicata, I will deal more briefly with the related doctrines of collateralattack and abuse of process. [76] While distinct doctrines with somewhat different tests, res judicata, collateral attack and abuse of process are in the samefamily of judicial measures meant to serve the ends of justice: Danyluk, at para. 20-21; Roenisch v.

Roenisch (1991) (AB KB), 123 A.R. 303 (QB) at para. 24. [77] As to collateral attack, little more needs be said than to observe the opening paragraph of Abella J.’s decision in BritishColumbia (Workers’ Compensation Board) v. British Columbia (Human Rights Tribunal) 2011 SCC 52, which addresses many of thesame considerations already discussed: Litigants hope to have their legal issues resolved as equitably and expeditiously as possible by an authoritative adjudicator. Subject onlyto rights of review or appeal, they expect, in the interests of fairness, to be able to rely on the outcome as final and binding.

What they donot expect is to have those same issues relitigated by a different adjudicator in a different forum at the request of a losing party seeking a

different result. On the other hand, it may sometimes be the case that justice demands fresh litigation. [ 78 ] The rule against collateral attack requires a party, having elected a certain adjudicative process, to use established review mechanisms such as here, appeal or judicial review, failing which that party is prohibited in most situations from bringing an entirely new proceeding on the same question. [ 79 ] Here, T.K. had an election to make after the administrative review which confirmed the Director’s decision to remove the children and to revoke her license. She could appeal to the Appeal Panel.

Equally, she could then have applied under the FLA for guardianship and parenting. Having elected to appeal to the Appeal Panel, she elected also to the review mechanisms of appeal or judicial review, neither of which were ultimately pursued. It is not therefore open to her now to elect to pursue a FLA claim on the same question. [ 80 ] Finally, as Abella J. asks in British Columbia (Workers’ Compensation Board) v. British Columbia (Human Rights Tribunal) , does “justice demand fresh litigation”? This question is answered in the canvass just undertaken.

At the risk of repetition but for the sake of certainty, there is nothing in the record before me to justify any exercise of this court’s discretion to let the FLA claim proceed, whether under the collateral attack doctrine, or at all. [ 81 ] As to abuse of process, I agree with counsel for the children that Alberta v. W.(B.J.) is analogous to the case before me and hard to distinguish in the result. [ 82 ] The Director also cites Toronto (City) v.

C.U.P.E., Local 79 2003 SCC 63 : The attraction of the doctrine of abuse of process is that it is unencumbered by the specific requirements of res judicata while offering the discretion to prevent relitigation, essentially for the purpose of preserving the integrity of the court’s processes. (at para. 42) [ 83 ] From the perspective then of the administration of justice more so than from the perspective of the parties, T.K.’s FLA claim is an abuse of process.

Again, T.K. does not say she intends to put anything new to a second adjudicator – in her own sworn affidavit of March 28, 2011, which was neither withdrawn nor supplemented by the time of the within application – she simply states “I would like to have the decision of the [Appeal Panel] ... reviewed.” [ 84 ] T.K.’s affidavit reveals her FLA claim is in fact little more than an appeal of the Appeal Panel’s decision. Such a “review” would be a waste of judicial resources, an unnecessary expense for the parties, and possibly an additional hardship on witnesses.

It would be an offense to the judicial and public policy favouring finality arising from otherwise proper and fair adjudication. V. Conclusion [ 85 ] While the court should be slow to strike a claim, in the case before me it is entirely clear that the FLA claim filed March 28, 2011 is barred by issue estoppel/ res judicata, is an impermissible collateral attack on the Appeal Panel’s decision, and is an abuse of the court’s process. [ 86 ] If they cannot agree, the parties may speak to costs. Heard on the 9 th day of May, 2012.

Dated at the City of Edmonton, Alberta this 18 th day of May, 2012. Peter Michalyshyn J.C.Q.B.A. Appearances: April C. Kellett Barrister & Solicitor for the Plaintiff/Respondent William B. Hogle Q.C. Barrister & Solicitor for the children Tanya Kuehn Alberta Justice Social Enhancement Legal Team for the Defendant/Applicant Director of the Child, Youth and Family Enhancement Act