P.L. v. Alberta, 2012 ABQB 383

Court of Queen ’ s Bench of Alberta Citation: P.L. v. Alberta, 2012 ABQB 383 Date: 20120611 Docket: 1003 09557 Registry: Edmonton Between: P.L. Plaintiff - and - Her Majesty the Queen In Right of Alberta, Thomas Svekla, Mona 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. _______________________________________________________ Supplemental Reasons for Judgment of the Honourable Mr. Justice R.A. Graesser _______________________________________________________ Introduction [ 1 ] This decision is supplement to my decision in P.L. v.

Alberta , 2012 ABQB 309 . [ 2 ] The government has pointed out that the Amended Statement of Claim filed February 8, 2012 removed the Public Trustee as a defendant in this action.

Accordingly, paragraphs 2 and 144 through 149 should be read as referencing only Her Majesty the Queen in right of Alberta and not the Public Trustee. [ 3 ] Additionally, I did not deal with the Plaintiff’s application to amend her Statement of Claim to address her claim that the province is vicariously liable to her for the negligence or wrongful conduct of Thomas Svekla and Mona. [ 4 ] I held in my earlier decision that the Plaintiff’s claim relating to vicarious liability should not be struck at this stage, as K.L.B. v.

British Columbia , [2003] S.C.C. 51, may be distinguishable having regard to the statutory provisions in Alberta and the factual relationship between the Alberta government and foster parents. As such, I concluded that the Plaintiff should have the opportunity of leading evidence in that regard in advancing such arguments. [ 5 ] Mr. Lee, on behalf of the Plaintiff, has prepared a lengthy amendment to the Statement of Claim relating to vicarious liability, and applied for leave to amend. He seeks to add paragraphs 9(

a) through 9(

j) as follows: 9a. The relationship between the Crown, Mona and Thomas Svekla was a close relationship including, but not limited to the following characteristics: (

a) equivalent to a employer/employee relationship, (

b) equivalent to a partnership, (

c) equivalent to a master/servant relationship,

(

d) the Crown having a great deal of control over Mona and Thomas Svekla, (

e) the Crown exercising a great deal of supervision over Mona and Thomas Svekla, (

f) Mona and Thomas Svekla having very little independence or decision making over any significant decisions over their foster children, (

g) Mona and Thomas Svekla being dependant on the resources of the Crown, (

h) Mona and Thomas Svekla using the resources, tools, training, manuals, equipment, drivers, foster support workers, and respite workers of the Crown, (

i) the Crown introduced the risk or harm by Mona and Thomas Svekla to the foster children, (

j) the public is told that foster parents are acting on behalf of the Crown as the delegated agents of the Crown, (

k) Mona and Thomas Svekla were not operating for business on their own account, (

l) Mona and Thomas Svekla were volunteers with the sole motivation of assisting the Crown to meet their statutory and moral duty to foster children, (

m) the Crown had the power to influence the actions of Mona and Thomas Svekla and to prevent injuries to foster children committed by foster parents, (

n) the Crown hired or provided the helpers for Mona and Thomas Svekla, such as foster support workers, drivers, counsellors, and respite workers, (

o) Mona and Thomas Svekla did not have any managerial responsibilities, (

p) the Crown determined who was permitted to interact with foster children, (

q) the Crown created policies which give the Crown complete control over the organization and management of Mona and Thomas Svekla household, (

r) the Crown provided regular supervision and interference into the day to day operations of Mona and Thomas Svekla foster home, (

s) Mona and Thomas Svekla were not independent and the independence of foster parents from the Crown would substantially interfere with the overall standard of care provided to foster children and would increase the difficulty of managing foster parents, (

t) Mona and Thomas Svekla were provided with a very limited scope of decision making authority over small decisions, just as an ordinary employee is able to exercise, (

u) all significant decisions about the foster children were made by the Crown, not Mona and Thomas Svekla, (

v) the Alberta public perceived Mona and Thomas Svekla as working for the Crown as the Crown’s delegated agent, (

w) the Alberta public perceived that the Crown and not Mona and Thomas Svekla, are ultimately responsible for the care and protection of the foster children, (

x) Mona and Thomas Svekla had to carry out and fulfil the plan of care that was created by the Crown for the foster children, (

y) the relationship between Mona and Thomas Svekla and the foster children was expected to be typically a short one of months; whereas the relationship between the Crown and foster children is typically much longer, (

z) the Crown had the right to tell Mona and Thomas Svekla what to do and Mona and Thomas Svekla had the duty to do what the Crown told them to do, (aa) the Crown is in the position to reduce the risk of loss, (bb) the Crown benefited from the activities of Mona and Thomas Svekla, (cc) the Crown has control over the cost of the Child Welfare system, (dd) the Crown has the complete control over the ability of foster children to recover compensation from Mona and Thomas Svekla through the requirement of comprehensive liability insurance for foster parents for the benefit of foster children, (ee) the Crown controlled what and how Mona and Thomas Svekla performed their duties, (ff) Mona and Thomas Svekla were prohibited by the Crown from fostering children for anyone other than the Crown,

9b. The Crown created a foster care system whereby foster children lack any reasonable chance of financial recovery from harm committed by foster parents. Foster parents are allowed to foster children despite having inadequate resources or insurance to compensate a child for injuries suffered from the foster parents. Without vicarious liability being imposed on the Crown, foster children will never or rarely recover reasonable compensation for the actions of foster parents.

Without vicarious liability being imposed on the Crown, foster children lack a fair and effective system of obtaining recovery for the injuries caused by foster parents. 9c. Imposing vicarious liability on the Crown for the actions of foster parents will cause the Crown to improve their screening, training, and supervision of foster parents and to improve their organization, practices and policies. Imposing vicarious liability on the Crown for the actions of foster parents will reduce the incidence of injuries and death to foster children in the care of foster parents.

Imposing vicarious liability on the Crown will cause will deter the Crown from practices that put foster children at risk while in the homes of foster parents. Over the last 4 decades, the prevention of harm to children in care has not been an adequate motivation for the Crown to improve the problems that hae been identified on a constant basis in the Alberta Child Welfare system. The Crown is primarily concerned with money and not foster children’s welfare.

The only thing that will motivate the Crown to implement improvements in the foster care system is financial liability created through vicarious liability. 9d. Lawyers in Alberta are unwilling to sue the Crown for foster children injured in care.

If vicarious liability were imposed on the Crown, more lawyers would be willing to sue the Crown for abused foster children. 9e. the Crown would not utilize more residential care options as an alternative to foster parenting if vicarious liability was imposed on foster parents as the Crown is also vicariously liable for the staff of residential care providers, 9f. the Crown could reduce the risk of abuse to foster children by:

a) changing the current atmosphere, which is conductive to abusing foster children,

b) changing the attitude and infrastructure that perpetuates the idea that allegations of abuse by foster children are false accusations,

c) creating an atmosphere that potential foster child abusers will be caught and punished for abusing foster children,

d) creating an atmosphere that is child focused and not cost and convenience focused,

e) creating clarity of appropriate and inappropriate behavior that could result in non-offending foster parents disclosing earlier,

f) creating better relationships with foster children and to have better communication with foster children that could help with detection of abuse,

g) educating and street proofing foster children better,

h) creating an expectation that 100% compliance by foster parents and child welfare workers is required, 9f. The smooth operation of the foster care system requires that foster children know that the Crown is responsible for the care of foster children and that foster parents do not have the power to make managerial decisions for foster children. 9g. To meet the goals of consistency and a reasonable standard of care, foster parents must not operate independently. 9h. Providing the day to day care and nurturing of a child is the main and most important function of the Child Welfare system.

The role of foster parents is integral to the Child Welfare system. 9i. The Child Welfare system is a not for-profit enterprise run by the Crown; however, the Crown can save money and receive an unjust enrichment by offering care to foster children that is below a reasonable standard. 9j. The Crown’s Child Welfare system receives a financial unjust enrichment, when the services offered to foster children is so

9j. The Crown’s Child Welfare system receives a financial unjust enrichment, when the services offered to foster children is so defective that it results in the death of a foster child or results in the foster child being transferred from the budget of Child Welfare to the budget of the Criminal Justice system. Therefore, there is an inherent financial unjust enrichment to the Crown to provide less than reasonable services to foster children. [ 6 ] The Crown objected to the original plea in paragraph 9 on the basis that it failed to disclose a cause of action.

The original allegation was simply that: “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.” [ 7 ] The Crown also argued that: 1) the existing allegations did not identify Mr.

Svekla as the Plaintiff’s foster parent; 2) the only allegation potentially supporting vicarious liability was the allegation the Crown had “total control over the day-to-day activities that Mona and Thomas Svekla could participate in with the children”; and 3) the plea contained bare conclusions of law without sufficient facts being plead. [ 8 ] The Crown argued “in the absence of a factual context, (paragraph 9) is deficient and should be struck”. [ 9 ] Mr. Lee responded by proposing the extensive amendments quoted above.

He argues that the facts alleged are necessary to establish vicarious liability and to distinguish this case from K.L.B. [ 10 ] In that regard, he relies on paragraph 20 of K.L.B. which states: “Whether vicarious liability can fairly be imposed in the case at bar depends on the first of these issues -- that is, on whether the relationship between the foster parent tortfeasors and the government is sufficiently close. The relationship that most commonly attracts vicarious liability is that of employer/employee.

Imposing vicarious liability in the context of an employer/employee relationship will often serve both of the policy goals outlined in Bazley: fair and effective compensation and deterrence of future harm. As I noted in Bazley, when an employer creates a risk and that risk materializes and causes injury, "it is fair that the person or organization that creates the enterprise and hence the risk should bear the loss" (para. 31).

And assigning responsibility to an employer for an employee's tort will often have a deterrent effect, because "[e]mployers are often in a position to reduce accidents and intentional wrongs by efficient organization and supervision" (para. 32). By contrast, imposing vicarious liability in the context of an employer/independent contractor relationship will not generally satisfy these two policy goals.

Compensation will not be fair where the organization fixed with responsibility for the tort is too remote from the tortfeasor for the latter to be acting on behalf of it: in such a case, the tort cannot reasonably be regarded as a materialization of the organization's own risks. And vicarious liability will have no deterrent effect where the tortfeasor is too independent for the organization to be able to take any measures to prevent such conduct. Hence, the relationship of employer to independent contractor does not generally give rise to vicarious liability (subject to certain exceptions: see P. S.

Atiyah, Vicarious Liability in the Law of Torts (1967), at p. 327).” [ 11 ] At paragraph 22, the Supreme Court listed the factors which may be relevant in determining vicarious liability: “Which factors are relevant in making this determination? As the Court held in Sagaz, "the level of control the employer has over the worker's activities will always be a factor" (para. 47).

This is related to the obvious fact that it would be unjust to impose vicarious liability for a tort committed in pursuit of the tortfeasor's own private purposes, or for tortious conduct that could not have been influenced or prevented by the person held vicariously liable (Sagaz, at para. 34). Control is not, however, the sole consideration. Workers can have considerable independence and yet still act on behalf of their employer.

Many skilled professionals, for instance, perform specialized work that is far beyond the abilities of their employers to supervise; and yet they may reasonably be perceived as acting "on account of" these employers. Control is simply one indication of whether a worker is acting on behalf of his or her employer; it is not, in itself, determinative of whether vicarious liability is appropriate.

Other relevant factors include, as the Court noted in Sagaz, "whether the worker provides his or her own equipment", "whether the worker hires his or her own helpers" and whether the worker has managerial responsibilities (para. 47).

[12] As noted by the Supreme Court, control is significant, but so are factors of provision of equipment, hiring of helpers andmanagerial responsibilities. [13] Mr. Lee also relies on Bazley v.

Curry, (SCC), [1999] 2 S.C.R. 534, a Supreme Court of Canada decisiondealing with vicarious liability issues arising out of sexual assaults on children in a residential care facility. [14] In particular, paragraph 22 of Bazley is significant: Looking at these three general classes of cases in which employers have been held vicariously liable for employees' unauthorized torts,one sees a progression from accidents, to accident-like intentional torts, to torts that bear no relationship to either agency-like conduct oraccident.

In search of a unifying principle, one asks what the three classes of cases have in common. At first glance, it may seem little.Yet with the benefit of hindsight it is possible to posit one common feature: in each case it can be said that the employer's enterprise hadcreated the risk that produced the tortious act.

The language of "furtherance of the employer's aims" and the employer's creation of "asituation of friction" may be seen as limited formulations of the concept of enterprise risk that underlies the dishonest employee cases.The common theme resides in the idea that where the employee's [page549] conduct is closely tied to a risk that the employer's enterprisehas placed in the community, the employer may justly be held vicariously liable for the employee's wrong. [15] In addressing the role of policy in determining vicarious liability issues, the Court noted at paragraph 30 the policy objectiveof providing a just and practical remedy for people who suffer damage as a consequence of wrongs perpetrated by an employee. [16] At paragraph 32, the Court identified deterrence of future harm as a further policy consideration. [17] McLachlin C.J.C. continued at paragraph 34: “The policy grounds supporting the imposition of vicarious liability - fair compensation and deterrence - are related.

The policyconsideration of deterrence is linked to the policy consideration of fair compensation based on the employer's introduction orenhancement of a risk.

The introduction of the enterprise into the community with its attendant risk, in turn, implies the possibility ofmanaging the risk to minimize the costs of the harm that may flow from it.” [18] McLachlin C.J.C. concluded her analysis at paragraph 36 by stating: “I conclude that a meaningful articulation of whenvicarious liability should follow in new situations ought to be animated by the twin policy goals of fair compensation and deterrence thatunderlie the doctrine, rather than by artificial or semantic distinctions.” [19] It should be noted that Bazley involved a clear situation of employer-employee. [20] When the Supreme Court considered vicarious liability in the context of an independent contract relationship, McLachlinC.J.C. stated at paragraph 20: “By contrast, imposing vicarious liability in the context of an employer/independent contractor relationship will not generally satisfythese two policy goals.

Compensation will not be fair where the organization fixed with responsibility for the tort is too remote from thetortfeasor for the latter to be acting on behalf of it: in such a case, the tort cannot reasonably be regarded as a materialization of theorganization's own risks. And vicarious liability will have no deterrent effect where the tortfeasor is too independent for the organizationto be able to take any measures to prevent such conduct. Hence, the relationship of employer to independent contractor does not generallygive rise to vicarious liability (subject to certain exceptions: see P. S.

Atiyah, Vicarious Liability in the Law of Torts (1967), at p. 327).” [21] Ultimately, K.L.B. was decided on the basis that the foster parents were not employees.

[22] The “exceptions” referred by McLachlin C.J.C. were not discussed. Instead, reference was had to P. S. Atiyah, VicariousLiability in the Law of Torts. London: Butterworths, 1967 at page 327. The exceptions discussed by Atiyah in 1967 fell into areas ofstrict liability such as nuisance and areas of what have become described as non-delegable duties. [23] Child welfare matters are not within the first category of strict liability. McLachlin C.J.C. considered non-delegable duties inthe context of the British Columbia Protection of Children Act.

In doing so, she reviewed the Supreme Court’s decision in Lewis(Guardian ad litem of) v.

British Columbia, (SCC), [1997] 3 S.C.R. 1145, wherein Cory, J. suggested at paragraph 20that “there are a variety of legal obligations which may, depending on the circumstances, lead to a principles liability for the negligenceof an independent contractor”. [24] McLachlin, C.J.C. continued to analyse the duties imposed on the Superintendent under the Protection of Children Act andconcluded at paragraph 36 “The legislation offers no basis for imposing on the Superintendent a non-delegable duty to ensure that noharm comes to children through the abuse of negligence of foster parents.” [25] It is difficult to reconcile these 3 Supreme Court of Canada decisions.

Lewis, in 1997, held that non-delegable duties, havingtheir source in a statute may result in vicarious liability for the negligence of an independent contractor. Bazley held that determinationsof vicarious liability in new situations or should be “animated” by policy considerations. Yet K.L.B. suggests that the relationship ofemployer to independent contractor does not generally give rise to vicarious liability.

The only analysis done by the Court in K.L.B. as tovicarious liability in the independent contractor relationship was as to whether the independent contractor was performing a non-delegable duty. [26] I conclude that notwithstanding K.L.B., circumstances may exist where the government might be found vicariously liable forthe negligence or breach of duty of foster parents who have been found to be independent contractors, but who are performing non-delegable duties. [27] Following Lewis, those non-delegable duties must be found in statute as K.L.B. negates that the government’s fiduciaryrelationship to children in care extends to a duty to act in the best interests of foster children. [28] I conclude that it is thus open to the Plaintiff to attempt to prove that Mona or Thomas Svekla were deemed to be employeesof the government.

That requires allegations of fact to support that position. [29] It is also open to the Plaintiff to argue that the government owed the Plaintiff various non-delegable duties which werebreached by Mona or Thomas Svekla. [30] To do this, some analysis of the legislation is involved and some policy considerations may be relevant, following Bazley. [31] In reviewing the proposed amendments, they should be limited to the above matters. [32] Proposed 9a (j), (v) & (

w) are not allowed. What the public is told or how the public perceives the situation is not relevant. [33] 9a (y) - is disallowed. That is simply argument and does not belong in the Statement of Claim. [34] 9a (dd) - is disallowed as being irrelevant. That belongs in policy areas and not factual areas, if anywhere.

[ 35 ] The first two sentences in 9(

b) are disallowed. The last part of that paragraph relates to the policy objective of compensation and is allowed. [ 36 ] 9(

c) addresses the policy consideration of deterrence. The last 3 sentences starting “Over the last 4 decades” is argument and does not belong in the Statement of Claim. [ 37 ] 9(

d) is by itself irrelevant but is in any event subsumed within the policy objective expressed in 9(b). [ 38 ] 9(

e) is disallowed as it is argument and not fact or policy. [ 39 ] 9(

f) is disallowed as it might at best be characterized as argument and has no place in the Statement of Claim. [ 40 ] 9(f), 9(g), 9(h), 9(

i) and 9(

j) are also disallowed on the same basis: they are argument and not fact or policy. [ 41 ] I am grateful to the province for pointing these additional matters out to me so the necessary Order following my May 11 th decision can be finalized. Heard on the 5 th and 9 th days of March, 2012. Dated at the City of Edmonton, Alberta this 11 th day of June, 2012. R.A. Graesser J.C.Q.B.A. Appearances: Robert P. Lee Strathcona Law for the Plaintiff G. Alan Meikle, Q.C., Peter Barber and Kate Bridgett Alberta Justice

for the Defendants