JO v Alberta, 2013 ABQB 693

Court of Queen ’ s Bench of Alberta Citation: JO v Alberta, 2013 ABQB 693 Date: 20131128 Docket: 0903 07043 Registry: Edmonton Between: JO, KB by his next friend JO and AB by his next friend JO 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 Corrected judgment: A corrigendum was issued on December 2, 2013; 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 ] In this case management application, JO applies for approval of amendments to her statement of claim. HMQ opposes some of the proposed amendments and seeks to strike certain paragraphs of the existing statement of claim. Background

[ 2 ] It is not necessary for me to detail the background of this matter. It is set out in my decision O.(J.) v. Alberta, 2012 ABQB 599 . The progress of this matter has stalled while the parties sort out the pleadings. [ 3 ] In my 2012 decision, various paragraphs of the existing statement of claim were struck, and I allowed portions of JO’s application. It was left to Mr. Lee on behalf of the Plaintiffs to make the necessary changes. [ 4 ] The formal order following my decision has never been taken out, and so far there has been no appeal from my decision.

I recognize that because the formal order has not been taken out, I am not precluded from varying my previous decision. [ 5 ] I am mindful in particular that since my decision in 2012, the Court of Appeal has decided some related issues in G.H. v. Alcock, 2013 ABCA 24 . [ 6 ] From my review of the proposed draft amended statement of claim, I can observe that generally, Mr. Lee has followed my decision. There are a few paragraphs, however, that have been amended, and HMQ takes issue with the manner in which the amendments have been made. In addition, Mr.

Lee seeks to amend the statement of claim to add new causes of action for negligent investigation and malicious prosecution. [ 7 ] The controversial areas in relation to the Plaintiffs’ application are: Para. 13.b. Mr. Lee has amended the paragraph. He says he has accepted my invitation to add facts specifically relating to Georgina Boucher. HMQ maintains that the proposed amendments do nothing to convert the allegations from argument to statements of fact; 122.c. Mr. Lee argues that he has sufficiently described his Charter breach allegations; HMQ maintains that the pleading is still deficient; 27.1-4 (new) Mr.

Lee argues that the allegations of fact in the existing statement of claim are sufficient to support a claim for breach of the tort of malicious prosecution and negligent investigation plus the new provisions of para. 127.4; HMQ disagrees; and 27.5-6 (new) Mr.

Lee argues that the allegations of fact in the existing statement of claim are sufficient to support a claim for breach of the tort of negligent investigation. [ 8 ] HMQ has cross-applied to strike paras. 56-60 of the statement of claim, following up on my invitation that they do so as stated in para. 100 of my 2012 decision. [ 9 ] HMQ also cross-applies to strike other paragraphs in the statement of claim on the basis that they engage relitigation of court orders: Para 44 There were no reasonable grounds to Apprehend KB and AB on January 22, 2007.

The decision to apply to apprehend KB and AB was negligent, unreasonable and unsupported by the facts. The Crown knew that the Plaintiffs would suffer serious harm if KB and AB were separated from JO. The Crown maliciously, carelessly, recklessly and intentionally failed to consider the harm that the Plaintiffs would suffer if they were separated.

The incorrect decision to apprehend KB and AB was caused by inadequate investigation into JO’s situation, the lack of training, poor qualifications, excessive caseloads, racial prejudice, recklessness, carelessness and malice by the Crown (Charles Hattum, MaryLou Johnston). The motives of the Crown were consistent with an intent to breach its fiduciary duty to KB and AB and warrants the imposition of a punitive damage award against the Crown.

The actions violated the Plaintiffs right to life liberty and security of the person. 45 The Crown (Charles Hattum and MaryLou Johnston) did not conduct a proper and reasonable investigation prior to apprehending KB and AB. This was a result of negligence and a breach of fiduciary duty. This violated KB and AB’s life, liberty and security of the person . The Crown did so for its own self interests, to avoid spending time on JO’s case, to avoid doing work and to have more time to spend on other cases on their excessive caseload.

The motivation was to breach their fiduciary duty. 49 Despite there being no concerns regarding JO’s ability to parent her children, the Crown (Judi Macleod) applied to court for a 6 month Temporary Guardianship Order. 68 Prior to and after apprehending the children, the Crown did not conduct adequate investigation into the children and JO family circumstances. As a result, the Crown took apprehension steps that were not appropriate in the circumstances.

This was due to negligence and the self interest of saving time and effort. 69 The Crown acted as the guardian of the children, without any lawful authority over the children. During that time period the Crown prevented JO from exercising her parental and guardianship rights over the children. During that time period, the Crown denied the children family rights to be with their family. This was due to negligence and breach of fiduciary duty.

It resulted in a trespass against children and violated the life, liberty and security of the person of all of the Plaintiffs. 70 The Crown failed to comply with their statutory requirements to properly take the children into care. As a result the Crown had the care and custody of the children without lawful authority. This was a trespass and a charter breach. 72 The Crown apprehended the children. As a result of the systemic problems, the Crown was negligent , the Crown’s workers did not know how to properly and, in relation to the Plaintiffs, did not properly (

g) apply for a court Order; 94 The Crown committed a trespass against the children by controlling all aspects of the children’s lives, including where she could and could not go, without the children’s and JO’s consent. The Crown prevented the children from seeing their friends or any person, unless that person was on a pre-approved list. The children were unlawfully confined by the Crown.

105 Thereafter, the Crown continued to assert custody and exercise guardianship over the children without legal authority to the exclusion of __________ JO and without the consent of the Plaintiffs. 109 The Crown breached it’s (sic) fiduciary duty to the__________ children to avoid the time and effort of completing their duties to the __________ children. They wanted to save time and resources so that they could apply that time and resources to other children on their excessive caseload. They wanted to cut corners and save money rather than to make decision in the best interests of the children.

They wanted to conceal information to try to avoid being sued. They wanted to keep a high number of children in care to keep statistics high and to meet quotas. They wanted to exert power and control over the Plaintiffs to feel important and powerful. [ 10 ] The Crown argues in general terms that the proposed amendments to add claims for malicious prosecution and for negligent investigation are hopeless and should be denied under Rule 3.65 of the Rules of Court. The Crown cites Manson Insulation Products Ltd. v. Crossroads C & I Distributors , 2011 ABQB 51 and C.H.S. v.

Alberta , 2006 ABQB 528 for this proposition. Essentially, the Crown argues that it is not necessary for them to bring a motion to strike on any of the appropriate grounds to strike pleadings; those issues can be raised and resolved on an amendment application. Analysis [ 11 ] Para 13b 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. 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. [ 12 ] In para 65 of my 2012 decision, I stated: 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. [ 13 ] 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. [ 14 ] Mr.

Lee proposes that the first sentence now read: “The Crown created a foster care system whereby foster children lack any reasonable chance of financial recovery from harm committed by foster parents, Georgina Boucher was one of these foster parents.” [ 15 ] What remains problematic with this new sentence is that the Crown did not create a foster care system for Georgina Boucher. The first sentence remains objectionable and is struck. It remains argument, regardless of the band-aid addition of Ms.

Boucher’s name. [ 16 ] The remainder of the revised paragraph is allowed, as it now alleges facts relating to Georgina Boucher and arguably relates to the policy argument that vicarious liability ought to be imposed on HMQ when harm comes to children from their foster parents. [ 17 ] Para 122 – Charter claims 122 The infringements of the Plaintiffs’ rights guaranteed by sections____7, and 9, _________of the Charter were not reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Charter . [ 18 ] Mr.

Lee cites Canadian Foundation for Children, Youth and the Law v Canada (Attorney General) , 2004 SCC 4 (at para 8 ) relating to the definition of a principle of fundamental justice. The issue between him and HMQ at this stage is not whether he has identified principles of fundamental justice. I ruled specifically on this point in my 2012 decision and gave a generous scope to the pleadings on the basis that this was a developing area of law.

I allowed what I concluded might fall within that definition: a. legal principle which b. is vital or fundamental to our societal notions of justice and c identified with precision. [ 19 ] The proposed amended statement of claim follows the rulings in my 2012 decision, but proposed para 122c states: 122c) a reasonable process of judicial review prior to or promptly after the state removes a child from the care of the child’s parents, extended family or guardians; a reasonable process of judicial review prior to or promptly after the state removes a child from the care of the child’s parents, extended family or guardians; 122c The actions of the Crown against the Plaintiffs violated the principles of fundamental justice because, inter alia:

a) The Crown violated the Rule of Law by failing to follow the statutory requirements under the Act,

b) The Crown arbitrarily violated the Plaintiffs’ rights by limiting the Plaintiffs’ rights in a manner that bears no relation to, or is inconsistent with, the objectives that lie behind it,

c) The means used by the Crown to achieve the societal purpose or objectives of the Act were over broad and were not reasonably necessary,

d) The Crown’s actions were grossly disproportionate to any legitimate government interest,

e) The Crown’s actions against the Plaintiffs shocks the conscience of Canadians,

f) The Crown’s action violated the Plaintiffs’ right and ability to make full answer and defence to the proceedings,

g) The Crown removed the children from J and removed J from the children due to temporary and transitory financial difficulties brought about due to domestic violence, and

h) such other breaches that shall be particularized at trial . [ 20 ] I do not see how this paragraph identifies any Charter breaches. I suppose (

f) could relate to a principle of fundamental justice, although “full answer and defence” is not identified as a principle of fundamental justice in para 122b. That might be added as an arguable principle for the purpose of that paragraph in the statement of claim. [ 21 ] Breach of principles of fundamental justice relate to Charter claims and an attempt to attract remedies under s 24. [ 22 ] The proposed amendments do not contain any allegations of breaches of the principles of fundamental justice.

For example, an allegation that the Crown violated “the Rule of Law” does not equate to a Charter breach, or a damage claim. Proposed para 122c reads more like an argument against the Crown raising s 1 as a defence to Charter breaches and not an allegation of Charter breaches. [ 23 ] None of the allegations in 122c have anything to do with the principles of fundamental justice specified in para 122b.

What is required in 122c is for JO to particularize how the Crown has breached the principles listed in 122b. [ 24 ] Para 122c as it presently stands puts forward no facts relating to alleged principles of fundamental justice.

It is struck. [ 25 ] While the Court of Appeal has concluded in previous related decisions that Charter violations may occur in child welfare matters, and that both the children affected and their parents may have Charter rights in relation to those proceedings and the Crown actions in pursuing them, sufficient facts (not argument or conclusions) must be pled to engage a particular Charter argument. [ 26 ] This is not a purely semantic argument. Mr. Lee’s clients know the facts. They are the ones who know what circumstances they argue to be breaches of their Charter rights.

So far, potential Charter rights (fundamental principles of justice) have been pled; it remains for the Plaintiffs to allege facts as a result of which of their Charter rights have been violated. [ 27 ] Mr. Lee argues that “where there is a right there is a remedy”, citing Doucet-Boudreau v Nova Scotia (Minister of Education) , 2003 SCC 62 and the Latin maxim ubi jus, ibi remedium . I presume the maxim is intended to mean “where there is a breach of a right there is a remedy”.

There may be rights alleged here, but so far, no breach has been made out on the facts alleged. [ 28 ] It remains for the Plaintiffs to say what precisely they complain that HMQ did that violated a particular Charter right. It is not sufficient to say that bad things happened to the children while they were in Government care, therefore there must be a Charter remedy against the Government. [ 29 ] Mr. Lee also refers to provisions in the statements of claim in Amanda Inglis et al v Minister of Public Safety and Solicitor General of British Columbia et al , Supreme Court of British Columbia Action No.

S087858 (Amended Statement of Claim) and the amended statement of claim in Dix v Canada , Alberta Queen’s Bench Action No. 9903 01952. [ 30 ] With respect, I cannot treat a pleading as authority to support the validity of claims alleged in the pleading. Pleadings are drafted by counsel; opposing counsel and not the courts decide whether to object to portions of the pleadings.

The fact that a provision was not objected to by the defendant in an unrelated action does not mean that the provision has any merit or can be used as an example of proper and unobjectionable pleadings. [ 31 ] More work is required before the statement of claim can be said to properly advance Charter breach claims on the part of the infant plaintiffs or J.O. herself. C. 127.1-.4 Malicious Prosecution [ 32 ] Mr.

Lee references paras 32-60, 68, 70, 72(a)-(i), 79 and 80 of the draft amended statement of claim as constituting the tort of malicious prosecution against the government defendants. [ 33 ] He refers specifically to Ritter J.’s (as he then was) decision in Dix v. Canada , 2002 ABQB 580 and the findings in that case that Mr. Dix had been maliciously prosecuted. Not Proceedings in Context of Malicious Prosecution [ 34 ] The Crown vigorously opposes the claim on the basis that the tort of malicious prosecution does not apply to child welfare matters.

Put another way, child welfare matters, including apprehension of children from their parents or guardians, are not “proceedings” within the meaning of the tort of malicious prosecution. [ 35 ] The Crown relies on Winnipeg Child & Family Services (Central Area) v W.(K.L.) , 2000 SCC 48 , arguing that the courts should be “reluctant to import procedural protections developed in the criminal context into the child protection context.” (at para 98). [ 36 ] Differences between criminal proceedings and child protection proceedings were emphasized in T v Alberta (Director of Child Welfare) , 2000 ABCA 182 .

And most importantly, Syl Apps Secure Treatment Centre v B.D. , [2007] S.C.R. 83, 2007 SCC 38

holds that child welfare authorities do not owe a duty of care to parents or relatives of apprehended children. [37] The Crown’s primary objection to this pleading is that the tort has no application at all to child welfare matters. Incursionsinto matters not purely criminal have been limited to professional discipline matters, and the tort should not be expanded into other areas. [38] The law on malicious prosecution is defined in Nelles v Ontario, (SCC), [1989] 2 SCR. 170, 1989 SCJ No 86para 45, as requiring four elements: 1. Proceedings initiated by the defendant 2.

Resolution of those proceedings in favour of the plaintiff 3. Absence of reasonable and probable cause 4. Malice [39] These are described by Ritter J. (as he then was) in Dix v. Canada (Attorney-General) Alberta Queen’s Bench Action No.9903 01952 at p 69. The balance of that decision analyzes the facts in relation to each of the required elements. Proceedings Initiated by the Defendant [40] It is arguable in my view from HVK v Children’s Aid Society of Haldimand-Norfolk, (OSC) that thecommencement of child welfare proceedings may constitute proceedings for the purposes of malicious prosecution.

They wouldcertainly be a “process” in the context of the tort of abuse of process. I do not think a malicious prosecution claim based on child welfareproceedings should be struck at the pleadings stage as not being “proceedings” in the context of that tort. [41] The Crown argues that Syl Apps Secure Treatement Centre v BD bars actions like this against the Crown because no duty isowed by the Crown to the parents in child welfare cases. [42] I think that is an overstatement. Syl Apps does not deal with abuse of process, malicious prosecution or negligentinvestigation.

It was a case involving a claim by parents and siblings of a child in care against the treatment centre for the care shereceived there (which had alienated her from her family).

It was not a claim against the government relating to the girl’s apprehensionand placement in the treatment centre. [43] Syl Apps does not hold that government is not accountable to the parents or other family members if wrongs are committed inthe process leading up to a child’s apprehension and placement in care. [44] DC v Children’s Aid Society of Cape Breton Victoria, 2009 NSCA 73 sued the defendant agency for negligence, maliciousprosecution, abuse of process, breach of fiduciary duty and defamation of character in connection with the apprehension by the Societyof his child. [45] The chambers judge had struck the claim as disclosing no cause of action.

The Nova Scotia Court of Appeal dismissed theappeal, relying on Syl Apps. The trial judge’s reasoning is described at para. 13 of the decision: [13] The chambers judge concluded that the statement of claim, even if it were amended as proposed, did not disclose a reasonablecause of action. With respect to the claim in negligence, he found that the Syl Apps case precluded the action against the Agency. Theclaim for breach of fiduciary duty was not viable because the Agency did not stand in fiduciary relationship with the appellant.

As fordefamation, the statement of claim was deficient because it neither specified any defamatory statements nor how, where and to whomthey may have been published. There was no basis for the claim for malicious prosecution because the statement of claim did not set outany facts alleging proceedings initiated by the defendant which were terminated in favour of the plaintiff. The chambers judge assumedthat the appellant’s claim for abuse of position was a reference to the tort of misfeasance in public office.

The allegations and statementof claim were found not to amount to claims of deliberate unlawful conduct in the exercise of its public duty. And finally, regarding theclaim for abuse of process, the chambers judge found that the statement of claim lacked facts which, if proved, could support such aclaim.

The application to strike the statement of claim was therefore granted. [46] The court concluded at paras. 27 and 28: [27] I agree with the chambers judge in this case, and the decisions in C.H.S., Pearce and L.L.A. that the principles defined by theSupreme Court in the Syl Apps case are equally applicable to child protection agencies as they are to third-party treatment centers. TheChildren and Family Services Act of Nova Scotia, stipulates that in all matters pursuant to the Act the paramount consideration is thebest interest of the child and the chief function of the agency is to protect children from harm.

To impose a duty of care on the Children’sAid Society to the child’s family would create the potential for serious conflicting duties and inhibit its ability to discharge its statutoryduties to protect the child.

It would be unrealistic, unreasonable and unrealizable to create a duty of care to the parents. (see ¶ 50 SylApps) After a child is apprehended, the Agency and the parent are then involved in an inherently adversarial relationship. (see ¶ 42 SylApps) Although the Children and Family Services Act of Nova Scotia does not provide immunity to child protection workers, it doesmandate safeguards and remedies for parents who challenge the apprehension and placement of their child. As well, the agency’sactivities are continually subject to close court supervision.

There is therefore no reason to recognize a duty of care by the agency to theparents. [28] Accordingly, the statement of claim in this case, even as proposed to be amended, disclosed no reasonable cause of action. Thechambers decision discloses no error of law, and the appellant has not shown that any injustice results from the order striking out thestatement of claim…

[47] In my view, Syl Apps, DC and the cases referred to in DC do not preclude, in appropriate circumstances, claims against childwelfare agencies and authorities for abuse of process or malicious prosecution.

If this were the only impediment to the pleading of thetort in this action in the context of a claim against child welfare authorities, I would be inclined to allow it to proceed, recognizingvarious courts’ admonitions that courts should be careful about placing even greater burdens on already heavily taxed child welfaresystems. [48] The tort of abuse of process is presumably the civil equivalent to the tort of malicious prosecution. That tort has recently beenexplored in Westjet Airlines Ltd v Air Canada, [2005] O.J. No. 2310 (S.C.J.) and Metrick v.

Deeb, (2003), (ON CA),16 CCLT (3d) 298 (Ont CA). [49] Metrick v. Deeb holds at para 3, citing from Fleming on Torts, 4th ed. (1971) at p. 548: The essential elements of abuse of process are: first, a collateral and improper purpose, such as extortion, and secondly, a definite act orthreat, in furtherance of a purpose not legitimate in the use of the process. Some such overt conduct is essential, because there is clearlyno liability when the defendant merely employs regular legal process to its proper conclusion, albeit with bad intentions. [50] Child Welfare proceedings are civil, not criminal, proceedings.

But if a child welfare action might become the subject of anabuse of process claim, why not a malicious prosecution claim? The difference may be a matter of semantics. For an abuse of processclaim to succeed, the litigation must be proven to have been tantamount to extortion (the wrongful use of civil proceedings to obtain anunlawful remedy); for a malicious prosecution claim to succeed, the prosecution must be proven to have been motivated by or conductedwith malice. [51] The concepts are similar, as are both concepts to the tort of misfeasance of public office.

It is difficult for me to distinguishbetween these three areas of law. Circumstances do not come to mind where a malicious prosecution by the Crown (or an agent of theCrown) would not also be misfeasance in public office. Nor can I think of circumstances where an abuse of process committed by theCrown (or someone on its behalf) would not amount to misfeasance in public office. [52] That being said, this is an area where the maxim quoted above, ubi jus, ibi remedium, may well apply.

If there is egregiousconduct on the part of the Crown or a Crown agent in carrying out his or her duties under the Child, Youth and Family Enhancement Act,you would expect there to be a remedy for foreseeable harm to someone in proximity to the egregious conduct.

Whether that is styled asmalicious prosecution, abuse of process, or misfeasance in public office, the similarities among those difficult and rare torts are obvious. [53] By way of example, if a child welfare worker who is in a civil dispute with someone arranges to have that person’s childrenapprehended using false information and for the purpose of doing harm to the person, there is very likely a remedy for the person and thechildren for any harm occasioned to them. The real issues are whether the worker’s conduct was intentionally wrongful. [54] There are undoubtedly differences among these torts.

But where egregious facts are pled, I do not think the court shouldnecessarily be quick to strike pleadings or disallow amendments because of some failure in precision, or failure to describe the correcttort in the statement of claim. [55] However, I do not see any valid policy reason to hold that a parent who has had child welfare proceedings initiated againsthim or her does not have a potential claim for malicious prosecution or abuse of process. Dix to some extent turned on an examination ofa prosecutor’s representations during a bail review.

It was not a collateral attack on the decision itself, but rather on the actions of theprosecutor. [56] I thus do not think that Syl Apps delivers a knockout blow to the allegation of malicious prosecution. Resolved in Favour of the Plaintiff [57] The second of the Nelles tests is whether the proceedings were resolved in favour of the plaintiff. Here, JO says that thechildren were eventually returned to her care. But does that mean that the proceedings were resolved in her favour? The object of childwelfare legislation is to protect children.

Sometimes children need protection from their parents, or need assistance when the parents areunable to properly care for them or protect them from others. Child welfare involvement is not always intended to make permanentchanges in guardianship and custody of children. Parents’ abilities and children’s needs are not static. [58] The Child, Youth and Family Enhancement Act contemplates circumstances where children may need temporary assistance, orthe parents may need assistance with their parenting skills.

The object of temporary guardianship is to assist the parents in being able toproperly parent the children, and restore the family relationship as soon as it is appropriate to do so. [59] The statement of claim here alleges that the children were apprehended and placed in temporary guardianship. After a period,they were returned to the care of their mother. Those circumstances do not mean that the proceedings were resolved in favour of JO.

Theproceedings might have been considered to be resolved in JO’s favour if the first hearing after apprehension resulted in the children beingreturned to her. [60] If the end of the child welfare process had been that the children were ordered returned to JO with a corresponding findingthat they should never have been apprehended in the first place, that would support a claim for malicious prosecution.

But here, in theabsence of anything more, the appearance is that the children were apprehended, a court agreed with the apprehension, granted atemporary guardianship order, and in follow-up proceedings concluded that it was at some stage safe or appropriate to return the childrento the care of their mother. [61] Whether that was because JO had fulfilled some conditions placed on her, or whether she had been able to better protectherself (and inferentially her children) from her spouse is not clear. But the pleadings do not make it clear that there was ever a finding

that the children should not have been apprehended in the first place. [62] It is similar to Dix in this regard. It was not suggested there that the bail review judge erred in denying bail on the informationpresented to her; the complaint was as to the truth of the information she was given. [63] To prevent this from being an improper collateral attack on the child welfare proceedings, JO must allege more thannegligence on the part of the authorities. She must point to something said or done in the process that improperly influenced the courts’decision. That element is lacking from the statement of claim.

Reasonable and Probable Cause [64] The third element is the absence of reasonable and probable cause. Those are concepts coming out of the criminal law butmay be transferrable to non-criminal situations. The facts pled in the statement of claim do not lead to that conclusion. Because this is anamendment application, I am entitled to consider materials other than the pleadings. The pleadings describe an abused wife and motherwho needs protection from her spouse. Affidavit evidence filed in this matter indicates that JO or her mother went to child welfare forassistance. The children were subsequently apprehended.

The factual matrix here is not one where Child Welfare acted on a complaint orinstigated an investigation themselves. They were approached for assistance. JO’s complaint is that rather than providing assistance toher, the authorities apprehended the children. The circumstances described in the statement of claim do not lead to the conclusion thatthere was a complete absence of cause to be concerned for the welfare of the children.

Malice [65] The final, and perhaps most important test is that of malice. [66] Nelles v Ontario describes the element of malice in malicious prosecution cases: The required element of malice is for all intents, the equivalent of "improper purpose". It has according to Fleming, a "wider meaningthan spite, ill-will or a spirit of vengeance, and includes any other improper purpose, such as to gain a private collateral advantage"(Fleming, op. cit., at p. 609).

To succeed in an action for malicious prosecution against the Attorney General or Crown Attorney, theplaintiff would have to prove both the absence of reasonable and probable cause in commencing the prosecution, and malice in the formof a deliberate and improper use of the office of the Attorney General or Crown Attorney, a use inconsistent with the status of "ministerof justice".

In my view this burden on the plaintiff amounts to a requirement that the Attorney General or Crown Attorney perpetrated afraud on the process of criminal justice and in doing so has perverted or abused his office and the process of criminal justice. In fact, insome cases this would seem to amount to criminal conduct. (See for example breach of trust, s. 122, conspiracy re: false prosecution s.465(1)(b), obstructing justice s. 139(2) and (3) of the Criminal Code, RSC, 1985, c.

C-46. (SCC), [1989] SCJ No 86 para 45. [67] Malice goes beyond negligence and gross negligence (recklessness) and requires something more. [68] Mr.

Lee cites Rule 113 of the previous Rules of Court in support of his position that it is enough to allege malice withoutmore. [69] The Old Rule provided that particulars of malice were not required to be specifically plead: 113 Whenever it is material to allege malice, fraudulent intention, knowledge or other condition of the mind of any person, it issufficient to allege it as a fact without setting out the circumstances from which it is to be inferred. [70] That may have been applicable at the time the statement of claim was issued, but is not the state of the law now, at the time ofthis amendment and striking application. [71] The new rules in this area are different.

It is clear that the new rules apply to applications after November 1, 2010, regardlessof when the action was commenced. Rule 13.6(3) provides:

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

a) breach of trust; (

b) duress; (

c) estoppel; (

d) fraud; (

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

f) malice or ill will; (

g) misrepresentation; (

h) payment;

(

i) performance; (

j) release; (

k) undue influence; (

l) voluntary assumption of risk; (

m) waiver; (

n) lack of capacity or authority; (

o) wilful default; (

p) tender of payment; (

q) a limitation period; (

r) a provision of an enactment. [72] It is significant in my view that the new rules emphasize the importance of defining the real issues in dispute (see foundationalRule 1.2(2)). Where the essence of a cause of action is malice, it seems to me that it is just as important to give particulars in thestatement of claim as to the malice as it is in a negligence action to give particulars of negligence. [73] Case law dealing with intentional torts are now quite consistently requiring particulars of the facts rather than generalstatements or conclusions.

Some of these cases are dealt with later in this decision. [74] It would not be sufficient, in a motor vehicle accident, for the plaintiff to simply allege that that accident was caused by thedefendant’s negligence. More than that would be necessary for the pleading to require a meaningful response. Where the essence of anaction for malicious prosecution is malice, it is similarly ineffective to simply allege that the plaintiff’s prosecution was motivated by thedefendant’s malice. [75] This is an area where pleading generalities or legal conclusions are inadequate.

Otherwise, the statement of claim might say“the defendant acted maliciously”. The statement of defence might then say “the defendant denies acting maliciously”. How are thosepleadings helpful at getting to the issues? How would those pleadings help define the scope of record production and oral questioning? Likely not at all. [76] I am fortified in these views by GH v Alcock, 2013 ABCA 24. The Court there dealt with

summary dismissal of claims forabuse or misfeasance in public office. At para. 58, the Court stated at para. 58: [58] Nor are we persuaded there is any basis for abuse of public office, the tort now referred to as misfeasance in public office. Verybriefly, this intentional tort requires proof of deliberate, unlawful conduct in the exercise of public functions and awareness that theconduct is unlawful and likely to injure the plaintiff.

A plaintiff must also prove that the tortious conduct was the legal cause of his orher injuries, and that the injuries suffered are compensable in tort law: Odhavji Estate v Woodhouse, 2003 SCC 69 at para 32,[2003] 3 SCR 263. Moreover, it is not sufficient for a statement of claim to merely make bald allegations that recite the basic elements ofthe tort in very general terms but fails to provide material facts sufficient to demonstrate an intentional wrongdoing by a specific publicofficer aimed at those who complain of the officer’s conduct.

The lack of specificity “is not merely a technical defect - it goes to the coreof the ... claim”: AL v Ontario (Minister of Community and Social Services) (ON CA), (2006), 83 OR (3d) 512, 218OAC 150 at para 37. The amended statement of claim contains no material facts that show that Weir’s conduct was unlawful anddeliberate, or that he was aware that his conduct was likely to injure GH. [77] For malicious prosecution, bald assertions of the essentials of the tort are insufficient.

There has to be more meat on the boneby way of pleading material facts. [78] Paras 127.1-3 of the proposed amended statement of claim repeats earlier allegations in the statement of claim and allege thatthese make out the tort of malicious prosecution. [79] Particulars of malice, or the facts upon which malice is alleged, are found in para 127.4. The proposed pleading states: 127.4 The facts establishing malice are:

a) false statements being made by the Crown to the Plaintiffs and witnesses,

b) failure by the Crown to disclose all relevant facts, whether inculpatory or exculpatory,

c) concealing information from, misleading and manipulating the Plaintiff, Jessica Osbourne (sic),

d) protecting the image of the Crown and covering up the mistakes of the Crown,

e) failing to be frank with the Court,

f) delay in disclosure, and

g) proceeding when the infant children were “probably not in need of protective services”.

[ 80 ] It is trite to repeat that the test on striking applications requires the court to take the pleadings at face value, and to assume the truth of the factual allegations. Amendment applications are different, but as has been held before, applications to amend pleadings usually require little evidence to support the new allegations.

Sometimes no evidence is required; in other circumstances some threshold evidence is needed to determine that the proposed new provision is not simply illusory or a figment of the drafter’s imagination rather than grounded in some facts. [ 81 ] The allegations in para 127.4 are not supported by any evidence. They essentially come out of the blue. [ 82 ] If this were a striking application, it might be difficult to hold that these are insufficient facts to support a possible finding of malice in malicious prosecution.

False statements, deficiencies in disclosure, concealment of information or providing misleading information to JO, attempts at covering up Crown mistakes and failing to be frank with the Court are similar to the allegations in Dix . Coupled with allegations of failures in the investigation process, it would not be hopeless to think that malice might be proven. [ 83 ] The challenge here, as the Crown points out, is that there is no real detail supporting any of the supposed facts which might support malice. I previously struck similar statements because they were conclusions, not allegations of fact. Mr.

Lee has tinkered with the wording, but still provides no “meat on the bones”. [ 84 ] What were the false statements made during the child welfare proceedings? What were the deficiencies in disclosure to JO in the child welfare proceedings? What was concealed from JO during the proceedings? How did the alleged cover-up take place? And what were the deficiencies in candour or frankness to the Court in the proceedings? [ 85 ] Even if the generalities now pled were sufficient to prevent them from being struck, it would still be appropriate for the Crown to demand better particulars of the allegations.

A meaningful statement of defence could only be filed after the Crown had knowledge of what particular acts and statements are complained of.

And as record production and oral questioning are largely defined by the pleadings, the Crown would be entitled to more information on these allegations before having to respond with an affidavit of records or submit to questioning. [ 86 ] The facts alleged in paras 30 to 60 in the draft amended statement of claim complain about concealment of so-called “systemic problems” in the Child Welfare system, but that would not appear to substantiate malice. [ 87 ] For the tort of malicious prosecution to be pled properly, there need to be sufficient facts alleged which may support the claim.

There is a difference between what may be appropriate (or survive a challenge) in the original statement of claim, and what may be necessary to support new allegations in an amended pleading. [ 88 ] While the amended statement of claim may, in para 127.4, arguably plead particulars of malice sufficient to support a claim for malicious prosecution, or at least prevent such a claim from being struck, there is no evidence to support these facts. Some evidence is required on an amendment application, and the generalities pled do not suffice.

Conclusion on Malicious Prosecution [ 89 ] As a result, the proposed amended statement of claim is deficient in three of the four Nelles tests. It is unclear from the statement of claim how and why the proceedings were resolved in JO’s favour; it is unclear in the statement of claim why there were not reasonable and probable grounds to apprehend the children from J.O. Children may be apprehended from fit parents when fit parents are temporarily unable to fully care for their needs or protect them from outside harm.

And finally, there is no evidentiary support for the allegations of malice. [ 90 ] Thus, the proposed amendments in paras 127.1 to 127.4 are disallowed. Para. 127.5-6 Negligent Investigation [ 91 ] Mr. Lee references paras 32-60, 68, 70, 72(a)-(i), 79 and 80 of the draft amended statement of claim as constituting the tort of negligent investigation against the government defendants. [ 92 ] I am not prepared to find that the tort of negligent investigation applies to claims by parents or family members of apprehended children in child welfare proceedings.

That tort has so far been limited to claims against the police, arising out of Hill v. Hamilton-Wentworth (Regional Municipality)Police Services Board , 2007 SCC 41 . [ 93 ] At para 19 of that decision, the Supreme Court described the issue in the case as: whether the law recognizes a duty of care on an investigating police officer to a suspect in the course of investigation”.

JO seeks to have the tort expanded to create a duty of care towards herself in the context of a child welfare investigation into whether she is able to adequately care for her children. [ 94 ] Having regard to the strong words in Syl Apps emphasizing the duties to the child in child welfare matters, negligent investigation claims by anyone other than the child seem to me to be too close to the types of negligence claims which have been rejected in Syl Apps and the cases following it. [ 95 ] Finding a duty of care to parents or guardians to properly investigate whether children are in need of protection would accomplish through the back door what the Supreme Court has denied in Syl Apps . [ 96 ] Enlarging the scope of this tort would appear to run afoul of the warnings in Winnipeg Child & Family Services (Central Area) and T v Alberta (Director of Child Welfare) against incorporating criminal law concepts into child welfare matters.

[ 97 ] In my view, a claim for negligent investigation as described in the pleadings, or indeed in any child welfare proceeding, is bound to fail. That claim is inappropriately pled, and as a result, the proposed amendments in paras 127.5-6 are disallowed. Limitation Arguments [ 98 ] The Crown argued in the alternative that if the proposed amendments were appropriate, they should still be disallowed because of limitations issues. The statement of claim was issued in

Section 6 of the Limitations Act , R.S.A. 2000 c 12 allows amendments outside the normal limitation periods specified in s. 6(3) in some circumstances.

Section 6 provides: 6(1) Notwithstanding the expiration of the relevant limitation period, when a claim is added to a proceeding previously commenced, either through a new pleading or an amendment to pleadings, the defendant is not entitled to immunity from liability in respect of the added claim if the requirements of subsection (2), (3) or (4) are satisfied.

(2) When the added claim (

a) is made by a defendant in the proceeding against a claimant in the proceeding, or (

b) does not add or substitute a claimant or a defendant, or change the capacity in which a claimant sues or a defendant is sued, the added claim must be related to the conduct, transaction or events described in the original pleading in the proceeding.

(3) When the added claim adds or substitutes a claimant, or changes the capacity in which a claimant sues, (

a) the added claim must be related to the conduct, transaction or events described in the original pleading in the proceeding, (

b) the defendant must have received, within the limitation period applicable to the added claim plus the time provided by law for the service of process, sufficient knowledge of the added claim that the defendant will not be prejudiced in maintaining a defence to it on the merits, and (

c) the court must be satisfied that the added claim is necessary or desirable to ensure the effective enforcement of the claims originally asserted or intended to be asserted in the proceeding.

(4) When the added claim adds or substitutes a defendant, or changes the capacity in which a defendant is sued, (

a) the added claim must be related to the conduct, transaction or events described in the original pleading in the proceeding, and (

b) the defendant must have received, within the limitation period applicable to the added claim plus the time provided by law for the service of process, sufficient knowledge of the added claim that the defendant will not be prejudiced in maintaining a defence to it on the merits.

(5) Under this section, (

a) the claimant has the burden of proving (

i) that the added claim is related to the conduct, transaction or events described in the original pleading in the proceeding, and (ii) that the requirement of subsection (3)(c), if in issue, has been satisfied, and (

b) the defendant has the burden of proving that the requirement of subsection (3)(

b) or (4)(b), if in issue, was not satisfied. [ 99 ] The onus of establishing the factors in subsections (3)(

a) and (3)(

c) is on the party seeking amendment. [ 100 ] The Crown argues that these requirements have not been met. [ 101 ] As a result of my findings above, it is not necessary for me to deal with the limitation arguments. These claims are advanced on behalf of JO so the normal limitation periods for tort claims have long passed. The torts of abuse of process or malicious prosecution are not new. Neither are the claims for abuse of or misfeasance in public office, although it is perhaps better defined now following Odhavji Estate v. Woodhouse , 2003 SCC 69 .

These claims could have been pled in 2009 with the original statement of claim. [ 102 ] Claims for negligent investigation are quite new, following Hill in 2007, so it may be arguable that some discoverability applies, although the present application is some six years after the Supreme Court decided Hill . [ 103 ] The original statement of claim is very detailed, and is replete with allegations of misconduct and malice on the part of the Crown. The new claims are certainly connected with or arise out of what has already been pled. The facts of the child welfare proceedings are well known to the Crown.

According to the evidence in these proceedings, the facts are better known to the Crown than to JO as she has had difficulty obtaining access to court records. It is likely (although I do not need to find) that the Crown had sufficient information relating to these new claims within the appropriate limitation period. [ 104 ] I would also be inclined to find that there has been no prejudice to the Crown, or at least no prejudice which cannot be compensated for in costs. The Crown will have to rely on old records and old memories to defend itself against the claims that were made well within limitation periods.

Supplemental Arguments [ 105 ] By supplemental argument filed shortly at the July 19 application, JO seeks to have me revisit my finding in O(J.). v Alberta , 2012 ABQB 559 , that: 1) the plaintiffs could not collaterally attack the child welfare proceedings, and 2) the tort of misfeasance in public office had not been properly pled. [ 106 ] Because no order has been taken out with respect to that decision, I have the jurisdiction to revisit aspects of it. Collateral Attack [ 107 ] Mr.

Lee argues that the prohibition against collateral attack does not apply to children involved in the proceedings because they had no means of attacking the proceedings while they were involved in them. [ 108 ] No authority is cited for this proposition. I do not see that it is valid. During their minorities, children are represented by their guardians throughout the proceedings (whether it be JO herself or the Public Guardian or Public Trustee. In any event, it is JO herself and not the children who seek remedies against the Crown as a result of the guardianship proceedings.

She at all times had a right of appeal. [ 109 ] JO cannot found a claim against the Crown based on her children’s lack of a direct appeal. [ 110 ] Mr. Lee also argues that one of the exceptions to the collateral attack rule is fraud. He refers to a number of paragraphs in the earlier statement of claim. [ 111 ] For example, para. 56 says: The Crown swore an Affidavit … This Affidavit was false and the Crown knew it was false and yet she allowed the Court to rely on it.

The Crown intentionally … and maliciously relied on a false Affidavit. [ 112 ] The difficulty with this paragraph in a pleading where particulars of fraud or malice must be pled is that there is no statement as to what was false in the Affidavit. It is but one example of a pleading which pleads generalities and conclusions only, and is ineffective in this type of claim. [ 113 ] With appropriate particulars, the statement might well support claims based in fraud, malicious prosecution, abuse of process and misfeasance in public office.

But as presently stated, the allegation is unhelpful and impossible for the Crown to respond to other than by way of a general denial. [ 114 ] Mr.

Lee gives many other examples where malice or fraud have been pled: Para 40 obtaining a Family Enhancement Agreement by intentionally concealing information from J Para 44 apprehending the children due to malice Para 45 apprehension due to a motivation to breach their fiduciary duty Para 46 the Crown provided the Court with false and incomplete information Para 50 the Crown applied for a TO due to malice Para 51 the Crown obtained consent from J by misleading J due to malice Para 53 the Crown concealed information from J due to self-interest Para 55 the Crown failed to advise J of information due to malice Para 61 the Crown filed an Affidavit in court due to malice Para 62 all of the representations that the Crown made to J and the Court were false and made knowing they were false.

They were made to deceive J and the Court Para 71 the Crown misrepresented to the Court that they could keep the children safe Para 80 the Crown maliciously refused the requests of J for information thereby fraudulently concealing particulars of her and her children’s claims Para 81 the Crown failed to openly disclose information to frustrate her attempts to regain custody of her children in the Crown’s own self-interest Para 87 the Crown failed to disclose information to J and was motivated to use its fiduciary position against the Plaintiffs. [ 115 ] Most of these are again generalities which do not provide appropriate particulars.

Peppering a pleading with key words from

legal

definitions or tests does not provide particulars. [ 116 ] Para 62 is so exaggerated that, despite generally accepting the truth of the allegations as pled on these applications, it has no chance of success. Undoubtedly, the Crown advised the court as to some uncontroverted facts (the children’s names, ages, parentage, et cetera). [ 117 ] Para 71 does not satisfy the requirement of particularity. What was said about keeping the children safe? By whom and when? And why did the Crown know that was false? Para 80 what information was concealed and when? Para 81 what information, and what self-interest?

Para 87 what information and how did the Crown use its fiduciary position against the Plaintiffs? [ 118 ] I will not change this aspect of my earlier decision. I am not persuaded that I made any errors in this respect. Misfeasance in Public Office [ 119 ] Mr. Lee argues that my decision did not properly interpret Odhavji v Woodhouse . He is critical of my distinction between abuse of public office and misfeasance in public office, citing Wolfert v. Shuchuk , 2003 ABCA 109 and Alberta v.

Nilssson , 2002 ABCA 283 , where the Court of Appeal dealt with and described the tort of abuse of public office. [ 120 ] I did not dismiss amendment requests or strike provisions of the statement of claim based on the difference in name. The tort has become known and is now described as misfeasance in public office, following Odhavji . [ 121 ] Mr. Lee says Odhavji describes two means of establishing the tort of misfeasance of public office, at para 22 of the decision.

Both involve the unlawful exercise of a statutory power or unlawful conduct by a public officer in the exercise of public functions. [ 122 ] The first category is when the officer specifically intends to injure a person or class of persons. [ 123 ] The second is where the officer acts with knowledge that the officer has no power to do the act and that the act is likely to harm the plaintiff. [ 124 ] The first category is thus an illegal act with specific intent to harm the plaintiff. An intention to commit an illegal act is not necessary.

The focus, after proving the illegal conduct, is the specific intent to cause harm. [ 125 ] The second category is an intentionally illegal act with knowledge that harm to the plaintiff is likely. The motivation is not to harm the plaintiff, but to commit the illegal act. The focus is no knowledge that the act is illegal, and the foreseeability of harm to the plaintiff. [ 126 ] Mr.

Lee says that the original pleading, while not specifically alleging abuse of public office or misfeasance in public office, contained all of the requisite elements, namely that “the Crown did things in their capacity of the child welfare proceedings that were done: Intentionally Maliciously Knowingly Recklessly To mislead or that they misled That they concealed In their own self-interest and Knowing that they would cause harm to the plaintiffs. [ 127 ] The difficulty, as described above, is that there are no particulars of any of these allegations. [ 128 ] Of the specific examples provided, Mr.

Lee focuses on Para. 57: The Crown knew that if they advised J of the material facts regarding TGO’s that J would not have consented. [ 129 ] However, the statement of claim does not related to JO’s consent to the TGO. That might be a defence for the Crown to raise, but as I held in my earlier decision, pre-emptively rebutting a potential defence is not part of a proper statement of claim. Additionally, for this tort, more than “material facts” must be provided. [ 130 ] Para.44: There were no reasonable grounds to apprehend K and A. The decision was negligent, unreasonable and unsupported by the facts.

[131] Mr. Lee says this paragraph establishes that the children’s apprehension was unlawful. Because other areas of the statement ofclaim say “the Crown knew that the Plaintiffs would suffer serious harm if they were separated, that completes the tort.” I disagree. Thatmay well support a negligence claim, but not misfeasance in public office.

No specific intent to harm the children is pled in theseprovisions, and no specific intent to commit unlawful acts is pled. [132] By adding that “the Crown maliciously, carelessly, recklessly and intentionally failed to consider the harm the plaintiffs wouldsuffer if separated” does not give particulars of an intention to commit an unlawful act, nor does it give particulars of an intention to harmthe plaintiffs. [133] The tort is not committed by conduct that does not amount to either an intention to harm the plaintiffs nor an intention tocommit an illegal act. [134] In any event, these provisions are again just generalities. [135] The Crown responded to the supplemental argument with an extensive supplemental brief filed August 1, citing a number ofauthorities: G.(A.J.) v Alberta, 2006 ABQB 446; S.(C.H.) v Alberta (Director of Child Welfare), 2006 ABQB 241; O.(J.) v Alberta, 2012 AQB 599; Elder Advocates of Alberta Society v Alberta, 2011 SCC 24; Merchant Law Group v Canada (Revenue Agency), 2010 FCA 184; Adventure Tours Inc v St John’s Port Authority, 2011 FCA 198; and Knight v Imperial Tobacco Canada Ltd, 2011 SCC 42. [136] AJG and CHS emphasize the need for allegations such as fraud, misrepresentation and (by extension) malice with particularity. [137] Mr.

Lee ultimately submits that his pleadings demonstrate the essential elements of the tort: That the public officer has engaged in deliberate and unlawful conduct in his or her capacity as a public officer, and That the public officer was aware that the conduct was unlawful, and the conduct was likely to harm the Plaintiff. [138] Mr. Lee says the draft amended statement of claim does that; Mr. Barber for the Crown says that no unlawful conduct is pled.What precisely was misrepresented in court?

What lies were told by whom in what circumstances? [139] There is overlap here with the elements of deliberate, unlawful conduct with knowledge that the conduct was unlawful andlikely to harm the Plaintiff necessary to support this tort, the element of malice necessary to support the tort of malicious prosecution andthe unlawful collateral purpose necessary to support the tort of abuse of process. [140] All require deliberate, unlawful conduct with foreseeable harm or a specific intention to harm the Plaintiff and unlawfulconduct. [141] None of these torts should be pled in generalities.

Generalities will only invite a striking application or demands for particulars. [142] This view is supported by the Supreme Court in Elder Advocates. There, the court stated at para. 79: [79] At the hearing, counsel for the plaintiffs sought to argue that we should read the plea of bad faith as disclosing the tort ofmisfeasance in public office: Odhavji Estate v. Woodhouse, 2003 SCC 69 , 2003 SCC 69, [2003] 3 S.C.R. 263. Notwithstandingthe difficulty of raising this

interpretation of the pleadings for the first time in response during oral hearing, I do not see how this claim issustainable at law: The facts necessary to support such an allegation cannot be extricated from the pleas of negligence and fiduciary duty,and a court is not obliged to divine causes of action apart from those deliberately pleaded and argued by a party.

Misfeasance in a publicoffice was not raised before the courts below, and I would not now accede to this submission. [143] In para 34 of Merchant Law Group, the Federal Court held: …when pleading bad faith or abuse of power, it is not enough to assert, baldly, conclusory phrases such as “deliberately or negligently”,“callous disregard” or “by fraud and theft did steal”…Making bald, conclusory allegations without any evidentiary foundation is anabuse of process. [144] It is clear that for this tort, particularization of the key elements is essential for the pleading to survive. [145] The Federal Court of Appeal upheld Merchant Law Group in St John’s Port Authority. [146] On the pleadings as they stand, with or without the amendments sought by JO, a claim for misfeasance in public office is

simply not made out with sufficient particularity to either allow the Crown to defend itself, or to demonstrate that it has some reasonable process of success, bringing into play the words of the Supreme Court in R v Imperial Tobacco at para 20: [20] This promotes two goods — efficiency in the conduct of the litigation and correct results. 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. [ 147 ] As a result, I am not persuaded that I should revisit my previous ruling on the tort of misfeasance in public office. [ 148 ] My decision should not be read as saying in any way that the tort of misfeasance in public office cannot occur in child welfare matters. In appropriate circumstances, such claims might be made and may succeed.

The problem with the Plaintiffs’ statement of claim is that the tort is alleged without providing the necessary particulars. Crown Application To Strike Paragraphs 57 - 60 [ 149 ] HMQ has cross-applied to strike paras 57 - 60 of the statement of claim, following up on my invitation that they do so as stated in para 100 of my 2012 decision.

I ruled that JO’s consent was not relevant to the statement of claim, and would be more appropriate in a reply if the Crown raised her consent to the TGO as some sort of bar to her claims. [ 150 ] Paras 57 – 60 are in exactly the same vein as paras 55 and 56 and should meet the same fate. They are either an improper collateral attack on the child welfare proceedings following Toronto (City) v CUPE , 2003 SCC 63 (as recently affirmed in Behn v Moulton Contracting Ltd , 2013 SCC 26 ) or are irrelevant (or both). [ 151 ] Paras 57 to 60 are struck.

This ruling is, I believe, consistent with the treatment of paras 55 and 56 in my 2012 decision. Crown Application to Strike Other Paragraphs The Crown cross-applies to strike a number of other paragraphs that were not struck by my 2012 decision. The Crown says they are objectionable because they attempt to relitigate the child welfare proceedings. [ 152 ] I think there is a difference between what the Crown did to investigate the children’s situation and make decisions as to how best to proceed and what happened in court.

The court proceedings did not validate all Crown action to the time of the various decisions. I do not see allegations that the children’s apprehension and various decisions as to how to deal with them are an attempt to relitigate the result of the child welfare proceedings. [ 153 ] The child welfare proceedings resulted in various decisions affecting the children. Those decisions were acted on and eventually resulted in the children being placed back in their mother’s care. The result of this action will not be to determine if the provincial court was right or wrong on any particular decision.

It may determine if child welfare authorities acted negligently and failed in their fiduciary obligations to the children at any step along the way, including positions taken in the court proceedings. [ 154 ] In this vein, I do not see paragraphs 44, 45, 46 or 68 as being objectionable or attempting to relitigate the proceedings. I agree that in para 69, it should not be stated that the Crown acted “without any lawful authority over the children.” That phrase should be struck. [ 155 ] I do not find paras 70 or 72(

g) to be objectionable. Negligence in making applications or in strategic decisions is a proper subject matter of this claim in relation to the children. [ 156 ] Para 94 is pled in relation to keeping the children in care after a time when the Director’s authority has expired. That is not a hopeless argument, depending on the circumstances, following the Court of Appeal decision in T. S. v Alberta (Director of Child Welfare ), 2002 ABCA 46 .

Paras 105 and 119 are in the same vein, and I would not at this stage prevent the Plaintiffs from arguing those allegations. [ 157 ] I decline to strike any further provisions of the statement of claim, but for that portion of para 69 referenced above. Further Provisions [ 158 ] When reviewing my 2012 decision, it appears that there was a typographical error in para 132 of the decision. The decision stated that the third sentence should be removed. It should have stated that the second sentence should be removed.

The proposed amended statement should restore the third sentence from the draft attached to the 2012 decision, and delete the second sentence (which has been reintroduced into the present draft of the amended statement of claim).

Heard on the 18 th and 19 th days of July, 2013 . Dated at the City of Edmonton, Alberta this 27 th day of November, 2013. Robert A. Graesser J.C.Q.B.A. Appearances: Robert P. Lee for the Plaintiffs Peter Barber for the Defendants _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice Robert A.

Graesser _______________________________________________________ This decision has been corrected by changing the following four paragraphs: [15] What remains problematic with this new sentence is that the Crown did not create a foster care system for Georgina Boucher. The first sentence remains objectionable and is struck. It remains argument, regardless of the band-aid addition of Ms. Boucher’s name. [98] The Crown argued in the alternative that if the proposed amendments were appropriate, they should still be disallowed because of limitations issues. The statement of claim was issued in 2009 .

Section 6 of the Limitations Act, R.S.A. 2000 c 12 allows amendments outside the normal limitation periods specified in s. 6(3) in some circumstances.

Section 6 provides: [101] As a result of my findings above, it is not necessary for me to deal with the limitation arguments. These claims are advanced on behalf of JO so the normal limitation periods for tort claims have long passed. The torts of abuse of process or malicious prosecution are not new. Neither are the claims for abuse of or misfeasance in public office, although it is perhaps better defined now following Odhavji

Estate v. Woodhouse, 2003 SCC 69 . These claims could have been pled in 2009 with the original statement of claim. [158] When reviewing my 2012 decision, it appears that there was a typographical error in para 132 of the decision. The decision stated that the third sentence should be removed. It should have stated that the second sentence should be removed. The proposed amended statement should restore the third sentence from the draft attached to the 2012 decision, and delete the second sentence (which has been reintroduced into the present draft of the amended statement of claim).