T.L. , R.M. v. J.S., 2013 ABQB 272

Court of Queen ’ s Bench of Alberta Citation: T.L. v. Alberta (Child, Youth and Family Enhancement Act, Director), 2013 ABQB 272 Date: 20130506 Docket: 0403 12898 Registry: Edmonton Between: T.L. , R.M. and J.S. Plaintiff - and - Her Majesty the Queen in Right of Alberta as represented by The Director of Child Welfare and The Public Trustee Defendant Restriction on Publication: No one may publish any information serving to identify a child or guardian of a child who has come to a Minister ’ s or a director ’ s attention under the Child, Youth and Family Enhancement Act .

See the Child, Youth and Family Enhancement Act , s. 126.2. _______________________________________________________ Case Management Decision Re Appointment of N.B. as a Representative Plaintiff of the Honourable Mr. Justice D.R.G. Thomas _______________________________________________________

I.

Summary..................................................................................................................... Page: 3 II. Background to application for appointment of N.B. as a representative plaintiff....................................................................................................................... Page: 3 III. Issues.......................................................................................................................... Page: 4 IV. Position of the Parties..................................................................................................

Page: 4 V. Analysis...................................................................................................................... Page: 4

(1) Jurisdiction...................................................................................................... Page: 4

(2) Appointment of Ms. N.B. as an additional representative plaintiff in this Action?................................................................................................. Page: 5 VI. Conclusion.................................................................................................................. Page: 7 I.

Summary [ 1 ] This is a case management decision arising from an application to appoint N.B. as a representative plaintiff in this class proceeding. I have jurisdiction to appoint an additional representative plaintiff and Ms. N.B. is an appropriate choice. I deal with the other requests for directions by Class Counsel (Messrs. Klein and Docken) at the end of this decision. II. Background to application for appointment of N.B. as a representative plaintiff [ 2 ] The Action was commenced in 2004 and the first attempt to certify the matter is reflected in the decision of Slatter, J. (as he then was) in T.L. v.

Alberta (Director of Child Welfare), 2006 ABQB 104 , 58 Alta. L.R. (4 th ) 23 [ “ T.L. No. 1 ” ]. [ 3 ] The Action was certified as a class proceeding by me in T.L. v. Alberta (Child, Youth and Family Enhancement Act, Director ) , 2008 ABQB 114 ) [ “ T.L. No. 2 . ” ] and that decision was implemented by my Order of February 19, 2008 (the “ Certification Order ” ). This decision uses some of the terms defined in T.L. No. 2 .

[ 4 ] Since issuance of the Certification Order, this Action has proceeded pursuant to a filed Updated Litigation Plan (the “ Plan ” ) and according to a timetable found in the Complex Case Plan ( “ Complex Case Plan ” ), also filed. [ 5 ] Paragraph 35 of the Plan provides for settlement discussions, which were to be held and completed by December 31, 2012 pursuant to para. 27 of the Complex Case Plan. Settlement discussions were held before the Hon. Jack Major, QC, as mediator on December 11 and 12, 2012 and were continued on February 7 and 8, 2013 with the assistance of the Hon. Terrence C.

McMahon, also acting as mediator. I am assured by Class Counsel that discussions have made significant progress towards the generation of a proposal for settlement from the Defendants. I note that any proposed settlement of this class proceeding must be approved by this Court. [ 6 ] The date for the completion of the mediation process has gone by. If settlement efforts fail, the common issues will then go on to trial. I expect that a trial of these matters would be a long trial, and would require at least one year of lead time to organize.

As things now stand, this would likely mean that a trial could not begin until the late Fall of 2014 or the Spring of 2015, fully 6 to 7 years after certification and 10 to 11 years after commencement of the Action. As I have said on many occasions during case management sessions, I am concerned that this matter be kept moving in the interests of all participants, but particularly in the interest of the up to 4,000 members of the Certified Class. III. Issues [ 7 ] The issues are:

(1) Do I, as the case management Judge, have jurisdiction to appoint an additional representative plaintiff?

(2) Should Ms. N.B. be appointed as an additional representative plaintiff in this Action? IV. Position of the Parties [ 8 ] The Class Counsel bringing the application advise the Court that the appointment of an additional representative plaintiff makes sense, given the problems which appear to exist between the existing Representative Plaintiffs and the Class Counsel. The Representative Plaintiffs appeared at this application through Mr. Poole, who sought an adjournment of the application, which I declined. The existing Representative Plaintiffs take no particular position in respect to the appointment of Ms.

N.B. as being an appropriate person, they simply indicate through Mr. Poole that they do not know enough about her. A similar position is taken by the Respondent (Defendant) Her Majesty the Queen in Right of Alberta, as represented by the Director of Child Welfare (the “ Director ” ). The Director does not appose the appointment of Ms. N.B., but requests that the appointment be a conditional one. The Director wishes to reserve the right to cross-examine Ms. N.B. on her Affidavit of April 18, 2013 (the “ Affidavit ” ) and, with leave of the Court, to challenge the suitability of Ms.

N.B. to be added as an additional representative plaintiff. The Public Trustee takes a similar position. V. Analysis

(1) Jurisdiction [ 9 ] This Action was certified as a class proceeding in the Certification Order. I am now being asked by Class Counsel to amend

the existing Certification Order to add an additional representative plaintiff to the currently existing Representative Plaintiffs, namely Ms. T.L., Ms. R.M. and Mr. J.S. [ 10 ] Under s. 9(4) of the CPA I have the power, at any time, to amend the Certification Order on my own motion. [ 11 ] Further, as Class Counsel have pointed out, under s. 13(1) of the CPA I have the authority, at any time, to make an order which I consider to be appropriate to ensure the fair and expeditious determination of this Action which is a certified class proceeding.

It is the expeditious advancement of this Action which is my main concern in the current circumstances where the Representative Plaintiffs have sided with Mr. Lee and seek to eject Class Counsel from having any further involvement in the Action. [ 12 ] I have expressed my concern about further delay in either resolving this matter through settlement, or moving it on for a trial. [ 13 ] All of these considerations and the information provided to me through the Affidavit comes together to assist me in making a decision that I do have jurisdiction and will take jurisdiction and decide the application.

(2) Appointment of Ms. N.B. as an additional representative plaintiff in this Action? [ 14 ] The starting point in respect to answering this question is to consider the provisions of s. 5(1) of the CPA and in particular s. 5(1)(

e) of the Act which reads: s. 5(1) ...the Court must be satisfied ... (

e) there is a person eligible to be appointed as a representative plaintiff who, in the opinion of the Court, (

i) will fairly and adequately represent the interests of the class, (ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and (iii) does not have, in respect of the common issues, an interest that is in conflict with the interests of other prospective class members. [ 15 ] A somewhat similar exercise to this application was gone through in respect to the existing representative plaintiffs. See the discussion of Slatter, J. (as he then was) in T.L. No. 1 in respect to Ms.

T.L. and by me at paras. 25 to 50 in T.L. No. 2 in respect to Ms. T.L., Ms. R.M. and Mr. J.S. I take a similar approach in considering the suitability of Ms. N.B. for appointment as a representative plaintiff. [ 16 ] The only evidence on this application consists of the filed Affidavit made by Ms. N.B. and sworn on April 18, 2013 (the “ Affidavit ” ). None of the evidence contained in that Affidavit is contradicted by any other evidence on this motion. [ 17 ] In terms of her background Ms. N.B. was born on October 24, 1964 and she is now 48 years of age.

She has been a resident of Alberta all her life. [ 18 ] In April, 1971 Ms. N.B. was made a temporary ward of the Government of Alberta ( “ GOA ” ) and was placed in a number of foster homes during the period 1971/1972 when she was finally placed with her grandparents. She became the subject of a Permanent Guardianship Order, ( “ PGO ” ) made on January 3, 1973. She remained subject to this PGO as a permanent ward of the GOA until she turned 18 years of age, on October 24, 1982.

[ 19 ] Ms. N.B. ’ s evidence reveals that her grandparents were alcoholics, who left her in the care of an uncle. Apparently Ms. N.B. was the subject of repeated serious sexual assaults between the ages of 7 and 14 at the hands of an uncle and others. She ran away from home at 14 years of age, but has since gone on to overcome her difficult past and receive an education and work as a productive member of society. Ms. N.B. deposes that she has not received any compensation under the Criminal Injuries Compensation Act , RSA 1980 C. C- 33 or the Victims of Crime Act , RSA 2000, C.

V-3 , nor has she commenced a civil action to obtain compensation for these alleged wrongs. [ 20 ] Based on the evidence contained in the Affidavit, I am satisfied and find that Ms. N.B. is a “ class member ” within the meaning of the Certification Order and, further, that she has consented to act as a representative plaintiff in this Action. [ 21 ] Moving on to the requirements of s. 5(1)(e)(

i) of the CPA , I am satisfied that Ms. N.B. is capable of fairly and adequately representing the interests of the class members by virtue of her background as a support worker in the Alberta aboriginal community and also by virtue of her history as a counsellor for persons with addiction problems and other difficulties. Further, I note her assertion in para. 22 of the Affidavit that she has taken a number of steps to prepare for the fair and adequate representation of the interests of members of the Certified Class. These measures include retaining Mr. Docken, one of the Class Counsel, as her lawyer.

She has met with Mr. Docken to discuss the case and to provide information which enabled him to prepare the Affidavit for her. Ms. N.B. understands that Messrs. Klein and Docken have been appointed as Class Counsel in this Action. All of this taken together convinces me that she is sincerely committed to fairly and adequately representing the interests of all members of the Certified Class. [ 22 ] In respect to the requirements of s. 5(1)(e)(ii) of the CPA, Ms. N.B. Affidavit reveals a knowledge of the litigation to date. She has had an opportunity to review and comprehend the Plan and the Complex Case Plan.

She accepts the processes outlined therein. Further, she is aware of the steps which have been taken to mediate the dispute involving The Hon. Jack Major, QC and Hon. Terrence McMahon. (See paras. 14 and 15 of Ms. N.B. ’ s Affidavit). [ 23 ] In respect to the requirements of s. 5(1)(e)(iii) of the CPA Ms. N.B. has deposed in para. 23 of her Affidavit that the common issues certified in T.L. No. 2 have been drawn to her attention. She states that she does not have, in respect to the common issues, any interest which is in conflict with the interests of any other class members. I am satisfied that Ms.

N.B. does not have a conflict of interest on the common issues with any other members of the certified class. [ 24 ] Therefore, taking into account the evidence before me in the Affidavit, I am satisfied that Ms. N.B. is a suitable representative plaintiff and should be appointed on a conditional basis. That condition is that legal counsel for the Director may cross- examine Ms. N.B. on her Affidavit and, with leave of the Court, may challenge her suitability as a representative plaintiff. VI. Conclusion [ 25 ] Messrs.

Klein and Docken had also sought directions from me as to the conduct of this Action pending the appeal of my January 31, 2013 Order removing Mr. Lee as counsel in this matter. They also seek directions from me as to the role of the existing Representative Plaintiffs, Ms. T.L., Ms. R.M. and Mr. J.S., pending the appeal of that Order. Those requests for directions are adjourned sine die . However, they may come back to me for directions at any time should circumstances arise which require my assistance. [ 26 ] Mr. Klein shall prepare an Order appointing Ms.

N.B. as a representative plaintiff on the conditional basis I have noted above. I have dealt with the direction for circulation of a draft Order in correspondence addressed to the counsel involved.. Heard on the 25 th day of April, 2013. Dated at the City of Edmonton, Alberta this 6 th day of May, 2013.

D.R.G. Thomas J.C.Q.B.A. Appearances: Mr. David A. Klein (Klein Lyons) -and- Mr. Clint G. Docken, Q.C. (by telephone) (Docken and Company) Class Counsel Mr. Peter Barber (Dept. of Justice, Legal Services Division) for the Director Mr. David N. Jardine (Shores Jardine LLP) for the Public Trustee Mr. Jeffrey D. Poole (Jeffrey D. Pool Prof. Corp.) for the Representative Plaintiffs