J.O. v. Alberta, 2012 ABQB 599

Court of Queen ’ s Bench of Alberta Citation: J.O. v. Alberta, 2012 ABQB 599 Date: 20121002 Docket: 0903 07043 Registry: Edmonton Between: J.O., K.B. by his next friend J.O. and A.B. by his next friend J.O. Plaintiffs - and - Her Majesty the Queen In Right of Alberta, Judy Macleod, Charles Hattum, Marylou Johnston, Georgina Boucher, 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 the name or photograph of a child, or of the child ’ s parent or guardian, in a manner that reveals that the child is receiving, or has received, intervention services. NOTE: This judgment is intended to comply with the restriction so that it may be published. Corrected judgment: A corrigendum was issued on October 4, 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 Robert A.

Graesser _______________________________________________________ Introduction [ 1 ] This is a companion case to P.L. v. Alberta , 2012 ABQB 309 ( PL #1 ) , as supplemented by P.L. v. Alberta , 2012 ABQB 3 ( PL #2 ) and modified by P.L. v. Alberta , 2012 ABQB 485 (PL #3) as well as to A.F. v. Alberta , 2012 ABQB 486 . I am case manager of these actions. J.O. applies for orders declaring that she has amended the statement of claim as required by the Court of Appeal in its parallel decisions, CHS v. Alberta (Child, Youth and Family Enhancement Act, Director) , 2010 ABCA 15 and LC v.

Alberta , 2010 ABCA 14 , and permitting her to make further amendments to the Statement of Claim as set out in the draft amended statement of claim appended to J.O.'s notice of application filed May 22, 2012. [ 2 ] At the commencement of the application, I was advised that J.O. was seeking to amend the statement of claim to remove the Public Trustee as a defendant. The removal of the Public Trustee was consented to by the Public Trustee. Mr. Jardine appeared for the Public Trustee to confirm this consent. That included agreement to remove reference to the Public Trustee in paras. 99(f), 106(n), 108(

d) and 133, so those amendments should be made. [ 3 ] A copy of the draft amended statement of claim is appended to this decision as Appendix I for convenience. Background [ 4 ] J.O. is the mother of K.B. and A.B. and sues as their next friend. After leaving her husband and moving in with her mother, J.O. contacted Child Welfare as she was having some difficulties raising her children. Child Welfare eventually apprehended the children. J.O. gave her consent to the children's apprehension and placement through Child Welfare and signed a family enhancement agreement, although now claims that her consent was not an informed consent and her participation in the family enhancement

agreement is invalid. [ 5 ] While in foster care and under a temporary guardianship order (TGO), K.B. was allegedly assaulted by the foster mother, Georgina Boucher, and suffered a severe brain injury. He requires ongoing care as a result of the brain injury. [ 6 ] This action was commenced in May, 2009. It was served on the Crown defendants in February, 2010. Thomas J. was appointed to be case manager of the action, as it was related to other child welfare matters being case managed by him.

On May 4, 2010, Thomas J. directed J.O. to amend the statement of claim in accordance with the Court of Appeal decisions in CHS v. Alberta (Child, Youth and Family Enhancement Act, Director) , 2010 ABCA 15 and its companion case LC v. Alberta , 2010 ABCA 14 , as there were considerable similarities between the claims in this action and CHS and LC . He also extended the time for filing a defence by the Crown defendants to thirty days after J.O.'s amended statement of claim was served. [ 7 ] Case management responsibilities were transferred to me in May, 2010. I am also case managing CHS and LC .

An application to approve an amended statement of claim was filed on June 30, 2010, but was adjourned sine die . The application for approval was renewed on May 22, 2012. The draft amended statement of claim now proposed by J.O. is different from the June 30, 2010 draft, and takes into account not only the two Court of Appeal decisions referenced above but my decisions in PL #1 and PL #2 . [ 8 ] On behalf of K.B., the thrust of the claims against the Crown defendants are that: 1. The Crown was negligent and breached fiduciary duties in apprehending him; 2.

J.O.'s consent to his apprehension and placement was void because of misrepresentation, uncertainty and lack of informed consent by J.O.; 3. The Crown was negligent and breached fiduciary duties in placing him with the foster mother, Georgina Boucher; 4. The Crown was negligent and breached fiduciary duties in failing to adequately support and supervise him while with the foster mother; 5. The Crown is vicariously liable for the torts and criminal assaults committed against him by the foster mother; 6.

The TGO obtained by the Crown (regardless of J.O.'s consent) became void because no service plan was filed within the required time; 7. The family enhancement agreement signed by J.O. is invalid; 8. K.B.'s continued apprehension by the Crown became unlawful and constituted false imprisonment or trespass; 9. The Crown failed to take action for K.B. against the foster mother; 10. The Crown failed to pursue claims for criminal victim compensation for K.B.; 11. The Crown failed to sue itself for its negligence, breach of fiduciary duty and other wrongs against K.B.;

12. The Crown breached K.B.'s s. 7 and 9 Charter rights relating to security of the person and freedom from arbitrary detention; and 13.

The Crown's conduct in its dealings with J.O. and her family are such that punitive and exemplary damages should be granted against it. [ 9 ] K.B. alleges that the Crown or various of its employees were motivated to breach the Crown's duty of care and fiduciary duty to the children, that the Crown acted in bad faith, that it put its own interests ahead of the interests of the children, that information was “ intentionally, carelessly and recklessly ” withheld from J.O., that Crown actions were motivated out of self-interest to save time and expense, that Crown agents misrepresented matters in Court, that Crown agents abused their public office, and that the Crown's conduct and motivation was planned and deliberate to harm K.B. ’ s interests for the benefit of the Crown. [ 10 ] K.B. seeks aggravated, exemplary, punitive and or symbolic damages, general and special damages, various declarations and solicitor-client costs. [ 11 ] The claims on behalf of A.B. relate to his apprehension and continued detention.

Charter claims are advanced relating to his apprehension and detention, as well as his separation from his mother and from his brother, K.B. [ 12 ] J.O. claims that her Charter rights were violated in the apprehension and TGO processes, and she also seeks damages in relation to the ongoing costs of caring for K.B. because of his brain injury and her losses because she has assumed a primary caregiver role for him beyond what would be expected of a parent of a child of that age. [ 13 ] Mr.

Lee, on behalf of J.O., argues that the extensive amendments relating to vicarious liability are necessary to distinguish this case from KLB v. British Columbia , 2003 SCC 51 . He argues that the detailed particulars of Charter breaches are necessary to comply with the Court of Appeal's rulings as well as to provide the Crown adequate notice of the claims, so they cannot complain about being caught by surprise. Particulars will also help define “ relevance and materiality ” for the purposes of record production and questioning. [ 14 ] The Crown opposes many of the amendments. Both parties filed lengthy briefs.

The proposed amended statement of claim is 136 paragraphs in length. [ 15 ] There are elements of both the failure to sue ( T.L. v. Alberta ( Child, Youth and Family Enhancement Act, Director) , 2008 ABQB 114 , aff'd 2009 ABCA 182 ) class action and the proposed failure to file ( L.C. v. Alberta ( Metis Settlements Child & Family Services, Region 10) , 2011 ABQB 42 ) class action which are working their ways through the courts.

As discussed later in this decision, the failure to file allegations have no factual or legal basis in the context of this family. [ 16 ] All of these actions: J.O. , P.L ., A.F ., C.H.S. and L.C. , have common elements, including allegations of wrongful apprehension, negligent placement, failure to file service plans and breaches of fiduciary duty and Charter claims. J.O., P.L. and A..F. also involve failure to sue for wrongful acts of foster parents. [ 17 ] The statements of claim in each action are similar in many other respects, especially those in relation to systemic negligence.

Many paragraphs in each of the statements of claim are word-for-word the same. I say this not as a criticism, but as an explanation for the need to reference each of these related actions and to make my rulings on similar or identical wording in these actions consistent with each other. Case Law [ 18 ] In support of his arguments, Mr. Lee on behalf of J.O. refers to:

KLB v. British Columbia (supra); Whiten v. Pilot Insurance Company, 2002 SCC 18; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9; Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4; New Brunswick (Minister of Health and Community Services) v. JG, (SCC), [1999] 3 S.C.R. 46; Operation Dismantle v. The Queen, (SCC), [1985] 1 S.C.R. 441; Interclaim Holdings Limited v. Down, 2000 ABCA 172; PL v. Alberta, 2012 ABQB 309; PL v. Alberta, 2012 ABQB 383; and 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59. [19] Mr.

Barber, on behalf of the Crown defendants, refers to: P.L. v. Alberta, 2012 ABQB 309; Manson Insulation Products Ltd. v. Crossroads C & I Distributors, 2011 ABQB 51; CHS v. Alberta (Director of Child Welfare), 2006 ABQB 528; Waquan v. Canada, 2002 ABCA 110; Mikisew Cree First Nation v. Canada, 1997 CarswellAlta 927 (Q.B.); Pennyfeather v. Timminco Limited, 2011 ONSC 4257; Steiner v. Canada, (1996), (FC), 122 F.T.R. 187; K v. K(E), 2004 ABQB 159; Mr. D. v. Phillips, 2004 ABQB 380; Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42; G(AJ) v. Alberta, 2006 ABQB 446; CHS v.

Alberta (Director of Child Welfare) (supra); LC v. Alberta, 2011 ABQB 12; TL v. Alberta (Director of Child Welfare), 2006 ABQB 104; R. v. B.(V.), 2004 ABQB 788; and Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63. Arguments J.O. [20] Mr. Lee argues on behalf of J.O. that the proposed amended statement of claim: [21] 1. Removes the Public Trustee as a defendant;

2. Removes the negligence claim and breach of fiduciary duty claim by J.O.; 3. Removes the ss. 2, 12 and 15 Charter claims; and 4.

Removes the claims of breaches of the Alberta Bill of Rights and various International Conventions. [ 22 ] The removal of the negligence and breach of fiduciary duty claims on behalf of J.O. personally are in accordance with the Court of Appeal decisions in CHS and LC . [ 23 ] The removal of the s. 2, 12 and 15 Charter claims is also in accordance with the Court of Appeal decisions in CHS and LC. [ 24 ] The removal of the Bill of Rights and Conventions claims are similarly in accordance with the Court of Appeal decisions. [ 25 ] Mr.

Lee also notes that J.O. consents to the stay of those elements in the draft amended statement of claim which are common to the issues certified in the TL class action. That agreement is referenced directly in some of the relevant paragraphs. [ 26 ] Mr. Lee made further written submissions with respect to the implications for this case arising out of PL v.

Alberta , 2012 ABQB 383 (PL #2) in relation to the vicarious liability issues. [ 27 ] J.O. submits that her pleadings as they relate to systemic negligence have been amended such that only systemic issues as they existed at the relevant times for J.O. and her children and which caused or materially contributed to the Plaintiffs' injuries have been pled. [ 28 ] Other aspects of the draft amended statement of claim are supported because: 1. Motives of the Crown defendants are relevant and essential to allegations of breach of fiduciary duty, arising out of KLB ; 2.

Motives are relevant to punitive damages pursuant to Whiten v. Pilot ; 3. Particulars of various aspects of the claim are given in detail so that the Crown defendants will understand the allegations against them and not be caught by surprise; 4. The Crown owed K.B. and A.B. a duty to have a reasonably functioning child welfare system; 5. Charter breaches have been particularized to be in accordance with Charkaoui and to prevent the Crown defendants from being caught by surprise; 6.

J.O. believes that while the “ best interests of the child ” is not a principle of fundamental justice in relation to criminal law, following Canadian Foundation for Children, Youth and the Law v. Canada , that case is distinguishable in the context of child welfare; 7. Reference to International Conventions (but not claims relating to them) has been retained as various International Conventions

will be relied on as evidence of the standard of care, duty of care and Charter duties, and so the Crown defendants will not be caught by surprise; 8. Detailed descriptions of the Plaintiffs' injuries are necessary to support their s. 7 Charter claims, following New Brunswick Minister of Health and Community Services v. G(J) ; 9. Indicia of employment are necessary to support the claim of vicarious liability for the foster mother's actions, following 671122 Ontario Ltd. v. Sagaz Industries Canada Inc. , 2001 SCC 59 ; and 10.

Pleading facts is necessary as opposed to pleading causes of action, following Interclaim Holdings Limited v. Down . Crown defendants General Arguments [ 29 ] The Crown defendants argue that the draft amended statement of claim “ does little ” to address my decisions in PL #1 and PL #2 .

Following an application to settle the terms of the order arising from those decisions, I recognized an error I had made and issued PL #3 , after this application had been argued, so that decision must also be considered here. [ 30 ] The Crown defendants rely on Manson Insulation Products Ltd. as a recent, new-Rules decision, which held that Dow Chemical Canada Inc. v.

Nova Chemicals Corporation , 2010 ABQB 524 , remained applicable under the new Rules of Court describing the test for amendments to pleadings. [ 31 ] The applicable test here is argued to be that “ hopeless ” amendments must be refused. [ 32 ] Poelman J. also with approval Bensler J.'s statement in Newel Post Developments Ltd. v. 1402801 Alberta Ltd. , 2010 ABQB 660 , at para. 18 : 18] This discretion [to amend pleadings] exists because “ pleadings are not a meaningless ritual incantation or medieval superstition; they fulfil the first rule of natural justice, knowledge of the case against one ” : Waquan v.

Canada , 2002 ABCA 110 , 2002 ABCA 110, 303 A.R. 43 , 2 Alta. L.R. (4th) 1 at para. 85 . Furthermore, with the Court bound to decide a matter upon the issues pled before it, accurate pleadings are necessary for just decisions. [ 33 ] The Crown objects to much of the colourful language used in the draft amended statement of claim (maliciously, recklessly), as being conclusory rather than explanatory, citing Whiten v. Pilot at para. 87 . [ 34 ] Alleged motivations without factual foundations are argued to be unnecessarily inflammatory, citing Mikisew Cree v.

Canada . [ 35 ] The Crown defendants argue misfeasance in public office has not been pled (although that is a cause of action which need not be pled as it is the underlying facts supporting one or more causes of action which must be pled, as held in Interclaim Holdings v. Down ) so accusations or allegations of fact related to misfeasance in public office are either irrelevant or scandalous (or both). Merely alleging “ abuse of public office ” is insufficient, having regard to Odhavji Estate v. Woodhouse , 2003 SCC 69 . That case requires a wilful choice to fail to discharge obligations. L(

A) v. Ontario,(Minister of Community & Social Services) , 2006 CarswellOnt 7393 (C.A.) holds that “ bald allegations that recite the basic elements of the tort in very general terms but fail(

s) to provide (sufficient) material facts ” are insufficient to support a pleading (at para. 37).

[ 36 ] I dealt with these cases in LC #1 and found the allegations there insufficient to support the specific cause of action. [ 37 ] Pennyfeather v. Timminco Limited requires material facts to support a cause of action to be pled. Speculation is not appropriate, such that the allegation as to anticipated Crown conduct in defending the action (para. 135 of the draft amended statement of claim) is improper. [ 38 ] The Crown cites Steiner v. Canada at para. 16 : A scandalous pleading includes one which improperly casts a derogatory light on someone, with respect to their moral character.

A claim is a frivolous one where it is of little weight or importance or for which there is no rational argument based upon the evidence or law in support of the claim. A vexatious proceeding is one that is begun maliciously or without a probable cause, or one which will not lead to any practical result. [ 39 ] Areas such as legislative history and legislative amendments are complex and factually not connected with the Plaintiffs' claims here, such that delving into them will not advance the Plaintiffs' case.

Such pleadings were found to be embarrassing in Mikisew Cree . [ 40 ] The Crown defendants argue that the test for striking pleadings as set out at para. 20 in R. v. Imperial Tobacco Ltd. is equally applicable to amending pleadings: Striking out claims that have no reasonable prospect of success promotes litigation efficiency, reducing time and cost. The litigants can focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless.

The same applies to judges and juries, whose attention is focused where it should be — on claims that have a reasonable chance of success. The efficiency gained by weeding out unmeritorious claims in turn contributes to better justice. The more the evidence and arguments are trained on the real issues, the more likely it is that the trial process will successfully come to grips with the parties' respective positions on those issues and the merits of the case. [ 41 ] This quote is consistent with the foundational rules in the new Rules of Court . Rule 1.2(2) emphasizes litigation efficiency:

(2) In particular, these rules are intended to be used (

a) to identify the real issues in dispute, (

b) to facilitate the quickest means of resolving a claim at the least expense. [ 42 ] Other cases referred to by the Crown were considered by me in PL #1 , PL #2 and AF and I need not deal with them again here. [ 43 ] This is not an exercise in creating a perfect pleading.

It is intended to result in a pleading that is comprehensible and precise, identifies the real issues in dispute, pleads relevant facts without conclusions and speculation, pleads causes of action which are not hopeless, provides sufficient facts to enable the opposite parties to understand the case against them, and is not frivolous or vexatious, all the while being succinct and in accordance with Rules 13.1 to 13.12. It is not up to the court to draft pleadings for the parties.

Specific Arguments [ 44 ] The Crown defendants' specific arguments fall under a number of categories: 1. Causes of Action that have no prospect of success should not be permitted; 2. Systemic negligence must be tied to the Plaintiffs; 3. Collateral attacks on court orders should not be permitted; 4. HMQ not vicariously liable for acts of foster parents; 5. Pleadings alleging a tortfeasor's duty to sue itself are unclear; 6. S. 7 Charter claims must identify a principle of fundamental justice; and 7.

Fiduciary Duty claims are too broad. [ 45 ] These are similar arguments to those raised on applications relating to the pleadings in PL and AF , which have been dealt with in those cases, in the specific context of the pleadings there. I recognize that the draft amended statement of claim here has somewhat different wording from the statements of claim in PL and AF , although there remain great similarities. [ 46 ] Mr. Barber, on behalf of the Crown, provided a table of concordance between the draft amended statements of claim in J.O. and in PL (2nd amended statement of claim and reply) and incorporated his

interpretation of my rulings in PL #1 and PL #2. The Crown defendants' arguments with respect to each challenged paragraph follow. Analysis Striking and amendments [ 47 ] At the outset, it is my intention to be consistent with the PL decisions and AF . Having corrected an error by issuing PL #3 and issuing my decision in AF , I have not been persuaded that I should generally rethink any of the decisions made in those cases as they relate to J.O. and her children's claims. The claims in J.O. raise substantially the same causes of action against the Crown defendants as are advanced by PL and AF .

Nevertheless, I have in a few instances come to a different conclusion in this case, and I will attempt to identify those differences and explain them. [ 48 ] As a result, the pleadings in J.O. should conform to my rulings in PL #1 to 3 , AF (except as expressly specified to the contrary herein) and of course to the Court of Appeal decisions in LC and CHS . [ 49 ] Some of the issues taken with J.O.'s pleadings are new and have not been raised by them in PL or AF . Those decisions do not preclude the Crown from objecting to provisions in J.O.'s pleadings which were not objected to in other actions.

Specific Paragraphs [ 50 ] Para. 4: The Crown objects to the Plaintiffs pleading the Child Welfare Act , as it was repealed more than two years before. I agree; reference should be made to the Child, Youth and Family Enhancement Act which was the relevant statute at the time of this family's involvement with Child Welfare authorities. [ 51 ] Para. 13a.j: The Crown argues that what the public was told is irrelevant. This has been dealt with in PL #3, and I corrected my error in PL #1 . The allegation may remain. [ 52 ] Para. 13a.1: The Crown objects to motives being pled for Georgina Boucher. I agree.

Georgina Boucher's motives are irrelevant to the claim and do not assist with the employee analysis under Sagaz . “ With the sole motivation ” is struck. [ 53 ] Para. 13a.s: The Crown objects to much of the paragraph as being argument. I agree. Here, the wording starting “ and the independence of... ” continuing to the end of the paragraph is struck. [ 54 ] Para. 13a.v: The Crown objects to pleading public perception. Following PL #3 , this is not objectionable and may remain. [ 55 ] Para. 13a.w: As in PL #3 , public perceptions may be relevant.

This paragraph may remain. [ 56 ] Para. 13a.y: The Crown objects to the last half of this paragraph as constituting argument. I agree. It is struck, starting with the word “ whereas... ” [ 57 ] Para. 13a.aa: The Crown objects to this as being irrelevant. I disagree. Part of the Sagaz analysis involves an analysis of the risk of loss as a relevant policy consideration. This paragraph may remain as an statement of a material fact. [ 58 ] Para 13a.cc: This is objected to as irrelevant. I agree. It should be struck. [ 59 ] Para. 13a.dd: This is argued to be irrelevant.

The first half of the paragraph is arguably relevant to the employment analysis under Sagaz . The requirement of insurance is speculative and argument, and the last half of the paragraph, starting “ through the requirement ” is struck. [ 60 ] Para. 13b: The Crown says this is argument. I agree in general terms. But this is one of the areas where my decision here may not be strictly consistent with the PL and AF decisions. [ 61 ] There is sometimes a fine line between statements of fact and argument.

Just because something may be characterized as argument does not automatically require it to be excised from a pleading, or disallowed as an amendment. There is clearly a discretion with respect to what may be allowed to remain in a pleading or not.

This discretion applies to conclusions versus facts. [ 62 ] In the context of encouraging pleadings to inform the other parties of the case they have to respond to, some provisions which might be characterized as argument or as being conclusory may be allowed to remain as being helpful to the objective of determining the issues to be decided under the foundational rules. Other argument or conclusions may not be helpful and should be removed in the pursuit of conciseness. [ 63 ] I recognize that decisions in this area may have the appearance of inconsistency or arbitrariness.

There are, however, no bright lines between helpful argument or useful conclusions, and ones which should be struck. Pleadings are not briefs of law nor are

they intended to be arguments of the case. Statements of fact which may support an argument are not much different than statements of fact which support a cause of action. The argument itself generally has no place in a pleading, but the underlying facts to support it may need to be pled. Where policy considerations are relevant to remedies, it may be important to have the policy to be relied on articulated in the pleading. [ 64 ] In PL #2 I addressed the identical paragraph in PL 's second amended statement of claim. There, I ordered the first two sentences to be struck.

I described the last two sentences as a policy objective and recognized that it should be pled to alert the Crown as to an issue. Having looked at the same paragraph in JO's draft amended statement of claim, I conclude that it is reasonable to permit pleadings of fact necessary to support a relevant policy argument.

What is objectionable to the facts in the first two sentences in this pleading (as with the pleading in PL ) is that they are not specific to the relationship between Georgina Boucher and the Crown. [ 65 ] Here, the first two sentences should still be struck, although if there were facts relating to Georgina Boucher relevant to the argument, those might not be objectionable in the pleading. [ 66 ] Para. 13.c: The Crown objects to this paragraph as argument. It is identical to para. 9.c in the PL pleading.

The last three sentences should be struck as was done in PL #2 . [ 67 ] Para .13d: The Crown says this is argument and should be struck. This is in the policy area, and contains both the policy argument (second sentence) and the supporting fact. This paragraph may remain. [ 68 ] Para. 13e: The Crown says this paragraph is argument. I agree. It is also irrelevant, as the issue of residential care versus foster parenting is not one for the courts. This paragraph should be struck. [ 69 ] Para. 13f: The Crown argues this is argument and should be struck. I agree. It is also irrelevant.

The lawsuit is not an inquiry as to reducing the risk of abuse to foster children. It is about whether any Crown officer or employee or anyone for whom the Crown is responsible breached duties to the children. This paragraph should be struck. [ 70 ] Para. 13g: This is objected to as argument. I agree. This is not relevant to this lawsuit, as with 13e and f above. The paragraph is struck. [ 71 ] Para. 13h: This is also objected to as argument. I agree.

As with 13e, 13f and 13g, this is not relevant to the issues and is part of a debate about how to deal with children in care in general, not in a lawsuit about children who were actually harmed in care. This paragraph is struck. [ 72 ] Para. 13i: This paragraph suffers the same fate as 13e to h and is struck for the same reasons. [ 73 ] Para. 13j: This paragraph is likewise struck with the four previous ones, for the same reasons. [ 74 ] Mr.

Lee on behalf of J.O. sought to support these paragraphs as part of the policy arguments arising out of Sagaz for a finding that vicarious liability should be imposed on the Crown for the acts of Georgina Boucher. The Crown has been given ample notice of the policy argument in 13a to d. Paragraphs 13e to j are general, not specific to the Plaintiffs and are not matters for the courts to deal with. They are relevant to some sort of inquiry, but that is not the function of the court. This is not the proper forum for those arguments. [ 75 ] Para. 16: The Crown argues that para. 16 is irrelevant. Mr.

Lee argues that changes to it have made it relevant to the Plaintiffs. I do not see that alleging that the standard of care was high is anything but conclusory or argument. The paragraph is essentially meaningless or incomprehensible and should be struck.

[ 76 ] Para. 17: The Crown says that this paragraph is irrelevant as the requirement for service plans was no longer legislated by the time the Plaintiffs were dealing with Child Welfare. Striking applications normally proceed without evidence and turn on the pleadings themselves; applications to amend usually require evidence supporting the amendments. [ 77 ] Here, the statement of claim alleges that the first relevant contact between J.O. and Child Welfare was in August, 2006. The statutory requirement to file service plans was removed on November 1, 2004.

Thus the service plan issue, and failure to file a required service plan under the legislation and the consequences of failing to file a service plan pursuant to the Court of Appeal decision in T.S. v. Alberta (Director of Child Welfare) , 2002 ABCA 46 , have no application to this case on the facts as pled. [ 78 ] The first part of para. 17, to “ a service plan ” should be struck as being irrelevant. I do not find the newly added part, relating to foreseeability, to be objectionable. The last two sentences may remain. [ 79 ] Para. 18: The Crown objects to the paragraph on the basis of relevance.

Foreseeability has already been addressed in para. 17. Systemic problems are described in detail in para. 19. Most of para. 18 is evidence, not facts. What is relevant to the allegations of systemic negligence is what they were, not how they were identified. I do not see that adding “ 2007 ” to the paragraph saves it from irrelevance. The sought-to-be added portion is evidence and a repetition of parts of para. 17.

The entire paragraph is unnecessary and should be struck. [ 80 ] Para. 19: While the Crown objects to this paragraph on the basis of redundancy, I note that the paragraph as proposed is in accordance with my treatment of the same paragraph in PL #1 (at para. 56 ) so 19(g). The paragraph may remain. [ 81 ] Paras. 19h and i: The Crown notes that the service plan requirement was not in effect at any material time. I agree that these subparagraphs should be deleted as being irrelevant. [ 82 ] Para. 19t: The Crown argues that the allegations relating to accountability are vexatious and irrelevant.

I do not see that holding workers accountable is a duty instead of a management practice. The allegation is irrelevant to the matter and should be struck. [ 83 ] Para. 19w: The Crown argues that allegations of lack of stability for children and frequent moves are vexatious and irrelevant. I agree. There is no logical tie-in between stability and moves relating to the allegations of harm to these Plaintiffs. The subparagraph should be struck. [ 84 ] Para. 20: The Crown argues that this paragraph is irrelevant, vexatious and inflammatory. I agree. There is no attempt to tie in these allegations and the Plaintiffs.

While the Plaintiffs seek punitive damages against the Crown, they can only claim punitive damages for things done or not done to them, and not for alleged wrongs to others. This paragraph should be struck as being irrelevant. [ 85 ] Para. 21: The Crown raises the same arguments as in para 20 with respect to this paragraph. I agree with respect to these allegations. They are general and have nothing to do with the Crown's duties to these Plaintiffs. The paragraph should be struck. [ 86 ] Paras. 24 to 29: The Crown argues that these allegations relating to service plans are irrelevant. I agree.

This case is not about filing or not filing service plans for the children. The Director had no statutory obligation to do so. Legislative action is not the proper subject for a damage action by individual plaintiffs. No cause of action is evident in any of these paragraphs. These paragraphs are struck. [ 87 ] Para. 30: The Crown argues that this paragraph constitutes argument and includes irrelevant, inflammatory material and refers to the Crown's motives. The paragraph alleges that the Crown acted in bad faith by removing the requirement to file service plans by legislative amendment effective November 1, 2004.

In the amended part of the draft pleading, J.O. alleges that the Crown's motive in doing so was to breach its fiduciary duty to the children. This is a frivolous claim. The Plaintiffs had no dealings with Child Welfare until sometime in August, 2006. The paragraph is struck on many bases: it is frivolous, hopeless, irrelevant and discloses no cause of action.

[ 88 ] Paras. 40 and 41: The Crown objects to these paragraphs on the basis that the Plaintiffs appear to be alleging a breach of contract or negligent misrepresentation, but the Plaintiffs do not cite those causes of action. Firstly, in response to the latter concern that no cause of action is cited, the Court of Appeal held in Interclaim Holdings Ltd. that only the facts need be pled rather than specifying a cause of action. It may be preferable, for clarity and avoidance of surprise, when the cause of action is referred to, if only in the prayer for relief.

Nevertheless, it is not fatal to factual allegations that no specific cause of action is mentioned. This is an area for discretion. [ 89 ] The plea appears to be defensive in nature, rather than asserting facts which if proven, would support a cause of action. The Plaintiffs may be anticipating that objections to the children's apprehension will be met by the Crown defendants as having been consented to, by way of a defense. Any defensive pleadings on the part of the Plaintiffs belong in a Reply, and not in the statement of claim.

These paragraphs should therefore be struck. [ 90 ] Para. 44: The Crown suggests that this paragraph be struck as it appears to suggest misfeasance in public office or malicious prosecution. The first part of the paragraph contains statements of fact which are logically connected with claims against the Crown defendants in negligence and for breach of fiduciary duty. I do not see them as objectionable in the proposed statement of claim.

The second last sentence attributes motives which are irrelevant, and such an amendment would require some evidence supporting the allegation of an intent to breach fiduciary duties. No such evidence has been put forward. The proposed amendment is disallowed; the existing paragraph may remain. [ 91 ] Para. 45: The Crown objects to the last two sentences, attributing motives to the Crown. The allegation of neglecting J.O. and her children in the Crown's self interest is irrelevant to any of the causes of action. Attempting to connect it to punitive damages does not save this provision.

The second last sentence is struck; the application to add the last sentence is disallowed. [ 92 ] Para. 46: The Crown objects to the paragraph on the basis of relevance. The paragraph suggests misfeasance in public office, but that cause of action has not been properly advanced. It is otherwise an impermissible collateral attack on a court order. I agree with the Crown's arguments. The paragraph is not saved by the addition of an allegation of the employees' actions being negligent and a breach of fiduciary duty. That does not diminish the basic position that this is an improper attack on a court order.

Secondly, there is no evidence to support the amendment. The original plea should be struck; the amendment is disallowed. [ 93 ] Para. 47: The Crown objects to the paragraph as an improper attempt to set up the misfeasance in public office cause of action. I agree. The motives of the employees are irrelevant. To the extent the paragraph is an attempt to challenge the court orders based on the employees' work, this is an improper collateral attack and the paragraph should be struck. [ 94 ] Para. 50: This is objected to on the basis of it being a collateral attack on a court order.

The remainder of the paragraph is irrelevant. This paragraph meets the same fate as 47, for the same reasons. [ 95 ] Para. 51: The Crown objects on the basis of relevance. I do not see this paragraph as supporting any cause of action. If anything, it is an anticipated answer or reply to what the Plaintiffs expect by way of the Crown's statement of defence: consent on the part of J.O. As with paras. 40 and 41 above, this is speculative, and these statements belong in a reply and not the statement of claim, if at all.

The paragraph should be struck. [ 96 ] Para. 53: J.O. seeks to add the last two sentences, alleging concealment of information and attributing motives. This addition is not relevant to the causes of action pled. Motives are irrelevant. The application to amend this paragraph is denied. [ 97 ] Para. 54: The proposed addition is objected to on the basis of relevance. I agree. Motivation is irrelevant. J.O. may allege that the Crown's actions were negligent; the remainder of the last sentence is not allowed. [ 98 ] Para. 55: The Crown's objections are the same as with paras. 40, 41 and 51.

I agree with their argument. These statements may be appropriate in a reply, but not the statement of claim. The existing paragraph is struck, and the proposed amendment is disallowed.

[ 99 ] Para. 56: The Crown's objections are the same as with para. 50. I agree with their position. The paragraph is an attempt to attack the orders granted. Essentially, this is irrelevant. It is speculation to argue that had J.O. not consented, the children would not have been apprehended and made subject to TGOs. The Plaintiffs are attempting to relitigate the granting of the TGO in the first place, and this is not the proper forum to do so.

This paragraph should be struck. [ 100 ] Paras. 57 to 60: While the Crown has not specifically objected to these paragraphs, I see little difference between the allegations here and the allegations in para. 56. In the absence of an application on by the Crown, I will not strike these paragraphs, but would be favourably disposed to do so if an application were made. [ 101 ] Paras. 61-62: The Crown objects to these paragraphs on the basis that they would be relevant only to misfeasance in public office, which has not been properly pled. The statements are an attempt to attack the court orders and are improper.

They are struck. [ 102 ] Para. 63: The Crown correctly notes that no duty was owed by the Crown to J.O. Mr. Lee asked at the hearing that “ Plaintiffs ” be replaced by “ infant plaintiffs ” which is appropriate. The balance of the paragraph is allowed. Reference to “ Plaintiffs ” in the last line is all right, as the allegation there relates to Charter breaches for which J.O. has a claim herself. [ 103 ] Paras. 63c, d and e: The Crown objects to these sub-paragraphs as no service plan was required to be prepared or filed.

I agree; those subparagraphs are struck. [ 104 ] Paras. 65 to 67, 76 , 80: The Crown objects to the use of “ recklessly and maliciously ” in these paragraphs as being frivolous, irrelevant or improper. Carelessly imputes negligence, which is not objectionable. The allegations of recklessness and malice appear to be frivolous, irrelevant and improper, and are struck. [ 105 ] Para. 71: The Crown says this paragraph does not relate to or create a cause of action. Mr. Lee says that it is part of the negligence cause of action relating to the foreseeability of harm.

This paragraph follows the same objectionable theme of collateral attack on the court proceedings affecting the children. The existing paragraph is struck, and the sought amendments are disallowed. The last sentence, relating to the children's injuries and foreseeability, have already been pled and repetition here is unnecessary duplication. [ 106 ] Paras. 72(d), (

e) and (f): The Crown notes that no service plan was required. That is correct, so these subparagraphs are irrelevant and are struck. [ 107 ] Paras. 73 and 74: The Crown's argument is that these paragraphs are irrelevant. Mr. Lee seeks to add reference to these being a violation of the Plaintiffs' rights to life, liberty and security of the person. This would appear to be arguable in connection with allegations of Charter breaches. I will allow the amendments and will not strike any portion of the paragraphs. [ 108 ] Para. 75: The Crown argues that this paragraph is irrelevant. I agree.

The wishes of the children or the parents in relation to Child Welfare matters do not support any cause of action. This paragraph is struck. [ 109 ] Para. 78: The Crown objects to this as an improper attack on the court proceedings. I agree. The paragraph is irrelevant and is struck. [ 110 ] Para. 79: The Crown says that particulars are required of the policy and its relationship with the Plaintiffs. That is a matter for a demand for particulars, not a striking motion. The original pleading is not objectionable. Mr.

Lee seeks to add “ This is a breach of fiduciary duty to K and A and it is an abuse of public office. ” The first portion of the sentence is allowed; the second relating to abuse of public office is not relevant as misfeasance in public office is not pled in the statement of claim or made out on the facts pled. [ 111 ] Para. 81: The Crown argues that this paragraph is irrelevant. I do not see this paragraph as relating to a viable cause of action. The proposed amendment to tie this to a breach of fiduciary duty to the children does not save it.

There is no connection between the conduct and duties to the children. Nor does tying the statement to a punitive damage claim assist as punitive damages must relate to a

cause of action, and not simply conduct. [ 112 ] Paras. 82 to 84 are claims that are related to the TL class proceeding. J.O. agrees that these claims should be stayed, although the statement of claim suggests that criminal compensation has already been sought and obtained. [ 113 ] Para. 85: The Crown argues that as K and A have sued the Crown within the applicable limitation period, there is no air of reality to this claim. Mr. Lee on behalf of K and A argues that had the Crown sued earlier, it would have been at their expense, and there has or will be a loss of interest and costs.

Collection against Georgina Boucher will be more difficult because of the passage of time. In my view, all of these are speculative at best. Costs remain in the discretion of the trial judge, and solicitor and client costs have been sought. I do not see that there is a viable cause of action against the Crown in this regard. Any prejudice to K and A is entirely speculative. This paragraph should be struck. [ 114 ] Para. 86: The Crown argues that motivations are irrelevant, and the paragraph is related to a claim with no air of reality.

As with para. 85, I agree that the paragraph cannot stand. [ 115 ] Para. 87: The Crown says motivations are irrelevant. I do not see that the paragraph is relevant at all, and order it struck. Again, it is not saved by attempting to tie it to punitive damage claims, so the proposed amendment is disallowed. [ 116 ] Para. 94: The Crown says this paragraph is meaningless as it describes what it is like to be in care.

While the Plaintiffs can allege trespass and unlawful confinement, I agree with the Crown's argument that the words in between “ by controlling ” to “ list ” are meaningless in the context of the causes of action in the lawsuit. The words starting with “ by controlling ” to “ pre-approved list ” are struck. [ 117 ] Paras. 99(

j) and (k): The Crown objects on the basis that these do not constitute a cause of action. No cause of action exists for passing or repealing or amending legislation. The passage of legislation is not an actionable Charter breach capable of a claim against the Crown. These subparagraphs are struck. [ 118 ] Para. 100(

g) is objected to as being confusing. Presumably, J.O. is suggesting that Georgina Boucher should have considered suing the Crown for appointing her as a foster parent. I agree that the subparagraph makes no sense and should be struck. [ 119 ] Para. 106(k): The words “ maliciously ” and “ recklessly ” are objected to as being frivolous, irrelevant or improper. As with paras. 65 et al, I agree and those words are struck from the subparagraph. [ 120 ] Para. 106(l): Abuse of public office is objected to as it is not pled.

That phrase should be deleted. [ 121 ] Para. 107(a): This relates to service plans and is irrelevant and should be struck. [ 122 ] Para. 107(e): This suggests misfeasance in public office, which has not been pled, so this subparagraph is irrelevant and is struck. [ 123 ] Para. 107(f): This is an unauthorized attack on the court orders in place and is objectionable. It should be struck. [ 124 ] Para. 107(

g) and (h): These subparagraphs are struck as passing legislation does not give rise to a cause of action or damage claim.

[ 125 ] Paras. 107(

i) to (k): The Crown argues these are redundant. To the extent they relate to the negligence cause of action (systemic negligence, overwork, et cetera) they have already been pled and need not be repeated here. Paras (

i) and (

k) are irrelevant. All should be struck here. [ 126 ] Para. 108(a): Mr. Lee concedes this subparagraph should be deleted. [ 127 ] Paras. 108(

b) to (e): The Crown argues these are meaningless and there is no nexus with the Plaintiffs. I agree. These paragraphs should be deleted. [ 128 ] Para. 108(f): Abuse of public office is not a cause of action; misfeasance in public office is, but it has not been pled. This phrase should be struck. [ 129 ] Paras. 108.1 and 109: The Crown says that these paragraphs are irrelevant and redundant. I do not see how these paragraphs are relevant as they focus on the Crown's alleged motivations. They should be struck as irrelevant. [ 130 ] Para. 110: The Crown says this is not a cause of action and is irrelevant. I agree.

It is struck. Tying it to punitive damage claims does not make it relevant. [ 131 ] Para. 111: This is defensive, in anticipation of defences. It belongs in a Reply, not a Statement of Claim and should be struck. [ 132 ] Para. 117: The third sentence is objected to as being irrelevant. I agree. The sentence is struck. [ 133 ] Para. 118: No cause of action arises by passing legislation, or failing to pass legislation.

This paragraph is struck. [ 134 ] Para. 119: “ Without the consent of the children ” should be struck as it is not required and is irrelevant. [ 135 ] Para. 122(b)(e): The Crown seeks removal of reference to the Child Welfare Act from this paragraph, as it had been repealed by the time the Plaintiffs had interaction with Child Welfare. I agree. That reference should be struck. [ 136 ] Paras. 122b.(

f) to (h), (

j) to (p), (r), (s), (u), (y), (

z) and (aa) are objected to by the Crown as not being principles of fundamental justice. These paragraphs are dealt with in PL #1 and the amendments to the Statement of Claim here should be in accordance with what I permitted in PL #1 . As such, and on the basis that such matters might be determined to be principles of fundamental justice as this is a developing area of the law and some latitude is appropriate, subparagraphs a, b, c, d, e (subject to removal of “ The Child Welfare Act ” ), g, q, t, v, w, x, and bb may remain. The others are struck. Para aa is a duplicate of d and should be struck. Mr.

Lee argues that while “ best interests of the child ” is not a principle of fundamental justice in relation to criminal law, following Canadian Foundation for Children, Youth and the Law v. Canada , that case is distinguishable in the context of child welfare. I do not see that the Charter recognizes certain fundamental principles of justice in some areas and not others.

Some fundamental principles of justice may not be relevant to some areas of the law, but I consider myself bound by the Supreme Court decision and do not consider it distinguishable. [ 137 ] Para. 122c: The Crown notes that the paragraphs referenced are inappropriate and do not provide sufficient particulars. I agree. This point was decided by me in para. 97 of PL #1 . The amendment proposed by J.O. here does not answer the concerns. The pleading requires facts, not conclusions, to comply with the Court of Appeal requirements in LC and CHS .

[ 138 ] Paras. 125-127: The Crown argues that these do not support a cause of action. They were ordered struck in at para. 98 of PL#1 and are ordered struck here. [ 139 ] Para. 135: The Crown argues that references to “ anticipated conduct in the litigation ” is vexatious and does not support a cause of action. I agree. That paragraph is struck. Solicitor and client costs have already been sought in para. 134 of the prayer for relief.

Other Amendments [ 140 ] Any amendments to the statement of claim in the draft filed with the notice of application dated May 22, 2012 which have not been specifically dealt with above are allowed. Other Steps [ 141 ] J.O. seeks a lifting of the stay and a requirement that the Crown defendants file a statement of defence. [ 142 ] Once the statement of claim has been amended in accordance with this order, and filed and served on the Crown, the Crown should file its statement of defence within 30 days.

Any appeals from this decision would suspend that time from running as the Crown should only have to defend the “ final ” form of statement of claim so that its defense is responsive. Conclusion [ 143 ] When the portions ordered to be struck have been removed, and the permitted amendments added, the amended statement of claim should identify the real issues in this dispute. The Crown's defence may make J.O.'s consent to the children's apprehension and the family enhancement agreement relevant; it may not. J.O. may have to file a reply.

That should be done within 30 days from receipt of the Crown's defence. [ 144 ] The amended statement of claim will still not be concise, and my failure to cut deeper into the wording in the statement of claim should not be viewed as a tacit acceptance that the amended statement of claim satisfies Rule 13.6(1)(

a) or (2)(a). It will not be concise and it contains some evidence as opposed to facts. Slatter J.'s words (as he then was) in G.(A.J.) v. Alberta (supra) where he noted at para. 18: 18] The Statement of Claim is drafted in a repetitive and verbose manner. For example, the potential vicarious liability of the Crown for various foster parents is pleaded over and over, instead of just once: paras. 18, 24, 31. The allegation that the Crown ought to have known of abuse and did not sue to protect the Plaintiff's rights is likewise pleaded many times, in many places: paras: 16, 17, 23, 30, 36, 98, 101, 102, 103, 124.

Some paragraphs simple repeat each other: e.g. paras. 38 and 51; 67 and 68; 67 and 70; last two sentences of 84; 83 to 86 generally; 110 and 114, etc. This unconventional way of pleading is one thing that makes the Statement of Claim so long. It is contrary to the spirit of Rule 104, that pleadings should be “ concise ” , but it is not so objectionable that the Court should strike otherwise relevant provisions. [ 145 ] This pleading fits well within that description. Slatter J.'s words remain applicable under the new Rules of Court.

There is much remaining in the amended pleading to object to, but it is not so objectionable as to warrant further surgery. [ 146 ] The Crown defendants should now know the case they have to respond to, they only have to respond to causes of action which are not hopeless on the pleadings and not respond to facts which are irrelevant.

Heard on the 15 th day of June, 2012. Dated at the City of Edmonton, Alberta, this 28 th day of September, 2012. Robert A. Graesser J.C.Q.B.A. Appearances: Peter Barber Alberta Justice, Civil Law for the Defendants Robert P. Lee Robert P. Lee Professional Corporation for the Plaintiffs _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice Robert A. Graesser _______________________________________________________ The citation line has been changed to: J.O. v. Alberta , 2012 ABQB 599