LC v Alberta, 2016 ABQB 151

Court of Queen ’ s Bench of Alberta Citation: LC v Alberta, 2016 ABQB 151 Date: 20160314 Docket: 0703 10836 Registry: Edmonton Between: LC, EMP by her Litigation Representative Phillip Tinkler, DC by his next friend LC and CC by her next friend LC Plaintiffs - and - Her Majesty the Queen In Right of Alberta and Metis Settlements Child & Family Services, Region 10 Defendants 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. _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Table of Contents

A. Introduction . 3 B. Background . 3 C. The Certification Application . 16 1. Plaintiffs’ Argument 16 2. HMQ’s Argument 19 3. “Sur-rebuttal” Brief 20 4. Authorities Citied During the Application . 22 5. Decision on Additional Authorities . 23 D. Overview .. 23 E. Analysis . 26 A. LC Claims - Family Class . 31 i. Charter Claims . 31 ii. Misfeasance in Public Office . 34 iii. Malicious Prosecution . 37 iv. Fraudulent and Equitable Concealment 38 v. Conclusion on Causes of Action for LC – Relative Class . 38 B. EMP Claims . 38 i. Breach of Charter Duties Under s 7 and s 9 . 38 ii.

Breach of Fiduciary Duties and Failure to Protect Legal Rights . 40 iii. Negligence and Breach of Duty to Prepare, File, Implement and Review Service Plans . 40 iv. Assault, Trespass, Unlawful Confinement/False Iprisonment/Unlawful Detention . 42 v. Abuse of Public Office . 42 vi. Malicious Prosecution . 43 vii. Fraudulent and Equitable Concealment 43 viii. Conclusion on Claims for EMP . 43 C. Effect of 2002 Amending Act 43 1. Is There an Identifiable Class of Two or More Persons? . 45 2. Are There Common Issues? . 50 3.

Would a Class Proceeding be the Preferable Procedure for the Fair and Efficient Resolution of the Common Issues? . 54 4. Is there a Person Eligible to be Appointed as a Representative Plaintiff? . 57 F. Conclusion . 60 F. Next Steps . 61 A. Introduction [ 1 ] The Plaintiffs, LC and her daughter EMP by her litigation representative Philip Tinkler, seek certification of this action as a class proceeding pursuant to the Class Proceedings Act , SA 2003, c C-16.5 (“CPA”). The application is opposed by Her Majesty the Queen in Right of Alberta (“HMQ”).

B. Background [ 2 ] This action has a lengthy history before the courts. I have been case managing it since 2010.

Starting in 2010, it became the intended action to carry on as a class proceeding against HMQ arising out of the failure of successive Directors of Child Welfare to comply with the requirements of the Child Welfare Act , SA 1984, c C-8.1 as amended and replaced from time to time concerning the preparation and filing of care or service plans for apprehended children who had become the subject of a temporary guardianship order (“TGO”). [ 3 ] From 1984 until 2004, the Child Welfare Act required that a service plan be prepared and filed with the Provincial Court of Alberta within 30 days from the granting of a TGO.

In 2004, the Child Welfare Act was replaced by the Child Youth and Family Enhancement Act , RSA 2000, c C-12 (“CYFEA”). That Act removed the obligation to file a service plan in court and introduced “concurrent planning” which required the preparation of a plan within 42 days from the date of the initial application for custody. [ 4 ] The obligation to prepare concurrent plans was removed by the Child Youth and Family Enhancement Amendment Act , SA 2008, c C-31. [ 5 ] The genesis of this action is the Court of Appeal’s decision in TS v Alberta , 2002 ABCA 46 .

In that case, the Court of Appeal concluded that if the Director failed to prepare and file a care or service plan within 30 days from the granting of a TGO as required by the Child Welfare Act , the underlying TGO became “void on the 31st day following its issue” (at para53). [ 6 ] The Court of Appeal noted at paragraph 51: [51] While the prejudice of non-compliance is significant, the inconvenience caused by a finding of nullity is not. The Act’s objective of child protection is not compromised, since, as discussed below, the Director can still make other applications under the Act.

This is not a serious inconvenience, resulting as it does from the Director’s own failure to comply with the legislation. [ 7 ] The Court of Appeal considered the consequences of a TGO becoming void in these circumstances, stating at paras 55 – 57: [55] Despite the conclusion that failure to file a plan under s. 29(3) renders void a TGO granted under s. 29(1), the Director must still be able to take other action in order to protect the child. Failure to file a plan under s. 29(3) and the resulting nullification of a s. 29 TGO cannot leave the Director powerless to intervene in the best interests of the child.

Any other approach would undermine the purpose of the Act. [56] All other provisions of the Act remain available to the Director notwithstanding nullification of the TGO. It is not an abuse of process for the Director to seek an apprehension order, a new TGO under s. 29, or a PGO pursuant to s. 16. Indeed, if the child is still in need of protection, it is essential that the Director retain this authority. Nothing in the Act indicates an intention by the Legislature to limit the Director’s power to make fresh applications. I agree with Franklin P.C.J.’s observation at para. 11 that “[a]n application under

section 30 does not preclude an application under

section 26, 29 or 32. To rule otherwise would be to fail to give effect to the statutory rights given the Director by the Legislature.” This approach is consistent with both the purpose and the wording of the Act discussed above. [57] Although the Director may make an application under s. 16 for a s. 32 PGO when an existing TGO has been nullified due to his failure to file a plan under s. 29, it would be a rare case when such a PGO application would succeed. A PGO is a drastic remedy in light of the Act’s goal of maintaining the family unit.

Equally seriously, once a PGO is made, the guardian’s sole remedy is to appeal the order. If the appeal is not filed in time, the Court has no discretion to extend the time for filing. J.U. v. Regional Director of Child Welfare, supra. These factors mean that the Director must meet a very high burden of proof to obtain a PGO.

Under s. 32(1)(c), the Director must show that “it cannot be anticipated that the child could or should be returned to the custody of his guardian within a reasonable time.” If no plan of care was ever filed relating to a previous TGO, it will be exceedingly difficult for the Director to discharge his onus. [ 8 ] The purpose for preparing and filing a care or service plan is described in TS v Alberta at paras 29 - 32 : [29] Apprehension orders give the Director short-term authority over a child at risk.

After an apprehension order is obtained, s. 19 requires the Director to make an application within ten days for either a supervision order, a TGO or a PGO. This process provides a safeguard for guardians whose child has been removed pursuant to an apprehension order. [30] In contrast to apprehension orders, TGOs are for a longer term.

Section 15 permits the Director to apply for a TGO under s. 29 if of the opinion that the child is currently in need of protective services but it is foreseeable that, within a reasonable time, the child may be returned to the custody of her guardian. The Court may appoint the Director as guardian of a child for no longer than one year if satisfied that the child is in need of protective services but it is foreseeable that the child may be returned to the custody of her guardian.

Section 29(3) requires that, within 30 days of a TGO being granted, the Director “shall file with the Court a plan for the care of the child, including a description of the services to be provided.” This is the only place in the Act that specifically addresses the Director’s obligation to file a plan of care. [31]

Section 16 allows the Director to take the more drastic step of applying under s. 32 for a PGO if of the opinion that the child is in need of protective services and it cannot be reasonably anticipated that the child will be able to return to the guardian in a reasonable period of time.

Section 32 permits the Court to grant a PGO if it is similarly satisfied that the child is in need of protective services and it cannot be reasonably anticipated that the child will be able to return to the guardian in a reasonable period of time. Section 16(1)(

a) states that the application for a PGO can be made when the Director is of the opinion that the child is in need of protective services or the child

is already subject to a TGO. Therefore, while an application under s. 16 can be made and an order granted under s. 32 when a TGO is already in place, the Director can also apply for a PGO without first obtaining a TGO. [32] Alternately, if a TGO has already been granted, the Director can apply under s. 30 “for an order renewing, varying or terminating the original order or for a new order under

section 26, 29 or 32” (namely, for a new PGO or TGO). If the application is made under s. 30, the Court is required to consider the filed plan of care.

Section 30 is the only place in the Act which directs the Court to take account of the filed plan of care. [ 9 ] It is significant that the Court stated at para 44: [44] The plan of care is a fundamental part of the Director’s obligation when a TGO is put in place under s. 29. It describes what is to happen to all the family members after the order is given and helps the parents know what they must do to regain custody.

The plan also provides a guide which s. 30(2) obliges the Court to consider when reviewing a TGO. [ 10 ] It is also significant that when HMQ sought a stay of the decision in TS , the Court of Appeal denied the stay at 2002 ABCA 90 , stating at para 11 : There has been no explanation given as to why there has been such extended and extensive non compliance with the Act. Nor does the evidence indicate that there will be future compliance.

All this is especially troubling given the legislative history of the Act (discussed in our Reasons) and the fact that more than two years have passed since judges of the Provincial Court first reached the same conclusion about the legal effect of s. 29(3) that we now have. We do not know why there has continued to be non compliance with the Act in the face of those judicial pronouncements.

These are not circumstances in which the Court ought to facilitate ongoing non compliance by the Director with requirements that were imposed on him by the Legislature in order to address specific concerns about the care of Alberta’s children. [ 11 ] In its decision, the Court of Appeal noted at para 4: [4] The motion was supported by the affidavit of Bertsch, a highly experienced social worker who is Acting Manager of Child Welfare Resources for the Ministry of Children’s Services.

He deposes that we were wrongly informed during argument on the appeal that the Ministry was in full compliance with the Act’s requirements concerning the filing of plans of care. He states that “[t]here have been efforts to comply” but that “it has been discovered that there are approximately 600 current temporary guardianship orders for which a plan of care” has not been filed.

He adds that this gives rise to “a serious legal concern” because “[t]here is doubt about the right of the Director of Child Welfare to keep a child in care ...”. [ 12 ] Thereafter, HMQ passed the Child Welfare Amendment Act , 2002 (No. 2), SA 2002, c 10 which provided in s 31.1 and 31.2: Temporary guardianship orders valid 31.1(1) Despite any decision of any court, a temporary guardianship order for which a plan for the care of the child has not been filed in accordance with section 31(3) [formerly 29(3)] is deemed to be valid from the date the order was made. (2) Subsection (1) applies only to temporary guardianship orders made before February 21, 2002.

Late filing of plans 31.2(1) Despite section 31(3), if a director files with the Court a plan for the care of a child before or within 30 days after the coming into force of this section, the director is deemed to have filed the plan in accordance with section 31(3). (2) Subsection (1) applies only to plans filed in respect of temporary guardianship orders made before February 21, 2002. [ 13 ] February 21, 2002 was 11 days before the Court of Appeal’s March 4, 2002 decision in TS . [ 14 ] In CHS v Alberta (Director of Child Welfare) , 2006 ABQB 528 , Slatter J described the effect of the amending legislation at para 5: New s. 31.1 provided that (with respect to T.G.O.s made before February 21, 2002) the failure to file a care plan was merely an irregularity, and did not render the T.G.O. void.

New s. 31.2 allowed the Director to file a plan within 30 days of the coming into force of the

section (May 14, 2002), and thereby be deemed to be in compliance with the provision.

Section 31.2 appears to be directed at the situation where a care plan had been prepared, and there had simply been a failure to actually file it with the Court. However, because s. 31.1 validated the T.G.O.s, the failure to comply with s. 31.2 would probably not have the effect of making a T.G.O. granted before February 21, 2002 void. [ 15 ] The Child Welfare Act was replaced by the Child, Youth and Family Enhancement Act by SA 2003, c. 16 , effective November 1, 2004. At that time, the provisions requiring the filing of a care plan were repealed.

The Director was still required to prepare a “concurrent plan” dealing with family reunification issues within 42 days from the date of the initial application for custody of the child. That regime continued until October 1, 2009 when concurrent planning was removed as a legislated requirement. [ 16 ] Initially, the action in CHS v Alberta (Director of Child Welfare) was commenced with a view to being the class proceeding arising out of the Directors’ failure to prepare and file care or service plans in a timely way. CHS commenced the action on her own

behalf and on behalf of her children, who had been apprehended from her. The first reported decision in that case, reported at 2005ABQB 695, was an application by HMQ relating to use of personal information from its records to defend herself against the plaintiffs’claims. An application was later brought by HMQ to strike the plaintiffs’ Reply. That decision is reported at 2006 ABQB 241. There,Slatter J (as he then was) noted at para 2: [2] The Plaintiffs sue because the infant Plaintiffs were apprehended under the Child Welfare Act, R.S.A. 2000, c.

C-12, and theTemporary Guardianship Orders (“T.G.O.s”) under which they were apprehended were subsequently held to be void. The Plaintiffspropose to apply to have this action certified under the Class Proceedings Act, R.S.A. 2000, c. C-16.5, and thereafter prosecute the actionon behalf of all persons who were the subject of void Temporary Guardianship Orders. [17] The Reply was struck, but the Plaintiffs were given leave to bring an application to amend their pleadings.

The amendmentapplication was heard by Slatter J and his decision reported at 2006 ABQB 528. [18] In his decision, Slatter J permitted some amendments and disallowed others. He held at para 41: [41] In conclusion, the fresh Statement of Claim is unacceptable in its present form. The Plaintiffs must decide whether they wish toproceed as a class proceeding or not. If they decide to proceed with this action as a class proceeding, the Statement of Claim must beamended so that it is suitable for that purpose.

The Plaintiffs must decide what claims are common, and therefore suitable for a classproceeding, and which are not common, and therefore suitable for a private action. [19] That decision was appealed by the plaintiffs. The Court of Appeal’s decision dismissing the appeal is reported at 2006 ABCA355. [20] An application by HMQ to strike the plaintiffs’ pleadings was brought before Thomas J, who had then replaced Slatter J ascase management judge.

In his decision, reported at 2008 ABQB 513, he struck CHS’s claim in her personal capacity and asrepresentative plaintiff for the intended Parent/Guardian Class in the proposed class proceeding. [21] The Court of Appeal allowed the plaintiffs’ appeal from that decision at 2010 ABCA 15. The court dealt with the plaintiffs’Charter claims at paras 34 - 39: [34] The appellants also claim that their rights under the Charter were violated, and that they are entitled to a remedy pursuant to s.24(1). The Director submits that the appellants have not properly pled the alleged causes of action in their Statement of Claim.

In thatregard, paragraph 21 of the Statement of Claim alleges that the Director violated the appellants’ rights under the Charter, particularly“their rights to life, liberty and security of the person.” The parties focussed on s. 7 of the Charter in their submissions, and we will limitour discussion to that provision. [35]

Section 7 states that “[e]veryone has the right to life, liberty and security of the person” and “the right not to be deprived” of these“except in accordance with the principles of fundamental justice.” A party seeking a Charter remedy under this provision bears the onusof demonstrating both a deprivation of their life, liberty, or security of the person, and a breach of fundamental justice: CanadianFoundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4 , [2004] 1 S.C.R. 76; R. v.

Beare, R. v.Higgins, (SCC), [1988] 2 S.C.R. 387 at 401. [36] The Director concedes that the security of the person may be engaged in the course of child protection proceedings. Indeed, theSupreme Court held that in New Brunswick (Minister of Health and Community Services) v. G. (J.), (SCC), [1999] 3S.C.R. 46. Nonetheless, the Director suggests that the appellants’ submissions are bound to fail without further amendment, based on thereasons expressed by Slatter J. when dismissing the proposed amendments to the Statement of Claim. We disagree.

Here, we are notdealing with the issue of whether the Amending Act violates the appellants’ Charter rights, as was the question before Slatter J. Rather,the issue here is whether the Director’s conduct in failing to file a care plan within the time mandated by the Act, and by failing to returnthe children to their parents/guardians once the TGO became void, engages the appellants’ rights to security of the person.

In our view,these allegations loosely support an argument that the appellants were deprived their security of person. [37] Nonetheless, the current pleadings are lacking, given that they fail to identify any principle of fundamental justice. However, forthe reasons explained further below, we grant the appellants leave to amend their Statement of Claim to address this deficiency. [38] We also note that the law does not (at least not yet) require a plaintiff to demonstrate bad faith, abuse of power, or tortious conductin order to receive an award of damages under s. 24(1) of the Charter: see Ward v.

Vancouver (City), 2009 BCCA 23 , 265B.C.A.C. 174, leave to appeal granted [2009] S.C.C.A. No. 125 (QL). However, there is authority for the proposition that a wilfuldisregard for the appellants’ Charter rights, or an intent to violate those rights, forms an essential part of a constitutional tort, and must beproperly pled: Burns v. Johnston, [2003] O.T.C. 290 at paras. 43- 50 (SC); Whatcott v. Schluff (2009), 2009 SKQB 56 , 329Sask.R. 24 at paras. 51 - 53 (QB); McGillivary v. New Brunswick and Moncton (City) (1994), (NB CA), 149 N.B.R.(2d) 311, 116 D.L.R.(4th) 104 (C.A.), leave to appeal refused, [1994] S.C.C.A.

No. 408 (QL). [39] To the extent that the appellants have failed to make any such allegations in their pleadings, we allow them leave to amend theirStatement of Claim to meet the proper requirements. Rule 113 would seemingly permit such an assertion to simply be pled as a fact,

since it goes to the Director’s state of mind. [22] It is significant that the Court of Appeal dismissed the Plaintiffs’ appeal from the striking of the parents’ claims against HMQin negligence. In doing so, the Court stated at paras 20 - 28: [20] The chambers judge determined that children subject to the TGO could maintain their negligence claim, but that the mother’s claimin negligence disclosed no cause of action, as the Director did not owe her a common law duty of care.

She appeals this finding. [21] Assessing whether a duty of care exists requires consideration of whether, using the lens of reasonable foreseeability and proximity,a prima facie duty of care exists, and whether policy reasons exist to preclude recognition of that duty: Cooper v. Hobart, [2001] 3 S.C.R.537, 2001 SCC 79 ; Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38 , [2007] 3 S.C.R. 83 at para. 24 [SylApps]; Holland v. Saskatchewan, 2008 SCC 42 , [2008] 2 S.C.R. 551; Hill v. Hamilton Wentworth Regional Police ServicesBoard, 2007 SCC 41 , [2007] 3 S.C.R. 129 at para. 20.

Here, the question is whether a relationship of sufficient proximity existsbetween the Director and the parent/guardian. [22] The Director submits that the ruling in Syl Apps is a complete answer to the appellant’s claim. Prior to Syl Apps, the SupremeCourt held that a breach of a custody order does not give rise to a common-law duty of care in negligence: Frame v. Smith, (SCC), [1987] 2 S.C.R. 99. Nonetheless, courts have often found a prima facie duty of care in circumstances similar to the case at bar:see L.C. v.

British Columbia (Minister of Children and Families), 2005 BCSC 1668 , 49 B.C.L.R. (4th) 164; A.G. v. BritishColumbia (Family and Child Services) (1989), (BC CA), 38 B.C.L.R. (2d) 215, 61 D.L.R. (4th) 136; Delaronde v. R.,2000 BCSC 700; D.B. v. Children’s Aid Society of Durham Region, [1994] O.J. No. 643 (Gen. Div.)(QL), aff’d (1996), (ON CA), 136 D.L.R. (4th) 297, 92 O.A.C. 60 (C.A.); A.A.D. v. Tanner (2004), 2004 MBQB 213 , 188 Man. R. (2d) 15(QB).

Since Syl Apps was decided, courts have almost unanimously found that child protection authorities do not owe a duty of care tofamily members of children in their care: see P.K.A. v. Children’s Aid Society of Toronto, 2007 Carswell Ont. 6808, (sub nom. Pearce v.Children’s Aid Society of Toronto), (ON SC), [2007] O.J. No. 4091 (Sup. Ct. Jus.) (Q.L.); Ashford v. Children’sAid Society of Cape-Breton Victoria, 2008 NSSC 73 , 2008 NSSC 73 (sub nom. L.L.A. v. C.A.S.), 263 N.S.R.(2d) 1; D.C. v.Children’s Aid Society of Cape Breton Victoria, 2009 NSCA 73 , 278 N.S.R. (2d) 394.

These cases all find, for reasons similarto those in Syl Apps, that the proximity test is not met due to the conflict that such a duty would place on the child protection authorities,who are obligated to ensure that the best interests of the child are met. Thomas J.’s decision is consistent with this approach. [23] We begin our analysis by noting that the relationship considered by the Supreme Court in Syl Apps differs from the one arising inthis case.

Different relationships raise different considerations, and each requires an in-depth proximate analysis that takes into accountthe factors relevant to that inquiry (Hamilton Wentworth at paras. 24, 27).

Nonetheless, the analysis in Syl Apps is relevant, and may beapplicable and informative to the current circumstances. [24] In that regard, we do not interpret the Supreme Court’s comments in Syl Apps to be strictly limited to third-party service providers.The court noted that the relationship in Syl Apps arose in a treatment context, which “invokes medical paradigms of confidentiality andprivacy.” However, Arbour J, writing on behalf of the Supreme Court, did not narrowly base the decision on this analogy, but broadlyconsidered the Ontario legislation and found that it created “an inherently adversarial relationship between parents and the state”: para.43.

Moreover, the court did not consider the statutory references to the significance of the family in child welfare context to be “stand-alone principles,” and held that they could not “be relied upon for finding a relationship of sufficient proximity”: para. 46. It was on thisbasis that the Supreme Court found the relationship between state and family members to be inherently adversarial. [25] This discussion is important, given that the relationship between the appellant mother and the Director arises in the context of thestatutory scheme.

Indeed, the appellant mother relies on a number of provisions in the Act, particularly those in s. 2, as the basis for herclaim. Those provisions stress the interests of family members and the importance of maintaining the family unit when making decisionsin relation to a child in need of protective services. For instance, the Act provides: 2. A Court and all persons shall exercise any authority or make any decision relating to a child who is in need of protective servicesunder this Act in the best interests of the child and in doing so shall consider the following as well as any other relevant matter: (

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

c) the family has the right to the least invasion of its privacy and interference with its freedom that is compatible with its own interest,the interest of the individual family members and society; ... (

e) the family is responsible for the care and supervision of its children and every child should have an opportunity to be a wanted andvalued member of a family, and to that end (

i) if protective services are necessary to assist the family in providing for the care of a child, those services should be supplied to the

family insofar as it is reasonably practicable to do so in order to support the family unit and to prevent the need to remove the child from the family, ... (

f) any decision concerning the removal of a child from the child’s family should take into account ... (iv) the merits of allowing the child to remain with the family compared to the merits of removing the child from the family; (

g) if it is not inconsistent with the protection of a child who may be in need of protective services, the child’s family should be referred to community resources for services that would support and preserve the family and prevent the need for any other intervention under this Act; [emphasis added] [26] These provisions are similar, if not identical, to those cited in Syl Apps.

However, as noted there, they are not stand-alone principles and cannot form the basis for a finding of proximity. [27] While we consider ourselves bound by this finding in Syl Apps, we would reach the same conclusion even without the benefit of the Supreme Court’s ruling. The above-referenced legislative provisions are only some of the factors to be considered when making decisions under the Act.

Though they recognize that the interests of the families and the maintenance of the family unit should be taken into account, the overriding premise remains that any decisions made in relation to a child in need of protection must be governed by the best interests of that child. Unfortunately, the well-being of a child will not always align with the interests of that child’s parents and siblings, and too often the two will conflict.

This reality reflects the fact that child welfare authorities are often in the unenviable position of having to make hard and difficult choices when making decisions for a child in need of protective services. Importing a duty of care in favour of the child’s family members into this mix is both unwarranted and undesirable, as the potential for conflict will place additional undue strain on child welfare authorities and creates unnecessary policy consequences. [28] Accordingly, we find that the statutory scheme gives rise to an inherent conflict, such that a duty of care is precluded.

To find otherwise would place undue and unwanted pressure on the Director to make decisions under the Act that may not align with the overriding policy objective of ensuring the best interests of the child. [ 23 ] The Court also commented on the effect of the 2002 Amending Act which validated TGO issued prior to February 21, 2002, stating at para 42: [42] In any event, even if we were to accept that the intention of the Amending Act is to validate those TGO’s issued prior to February 21, 2002, it still does not preclude a cause of action by those children and parents or guardians affected by TGOs issued prior to that date.

The Amending Act did not eliminate the Director’s obligation to file a care plan, but simply attempts to validate those TGO’s where no care plan was filed. Seemingly that would prevent affected litigants from alleging that the TGO is void, which in turn would preclude them from arguing that the Director maintained custody of the children without lawful authority and that the Director was obligated to return those children to the parents or guardians. But it does not otherwise affect the obligation to file a care plan for those TGOs issued before that date.

It is not beyond all doubt that a court may award damages based on the Director’s failure to file a care plan, even if that omission does not result in a void TGO. [ 24 ] The Court of Appeal gave the plaintiffs leave to amend their pleadings in relation to the Charter claims, but upheld Thomas J’s decision to strike allegations of a duty of care and fiduciary duties allegedly owed to the parents or guardians. [ 25 ] That decision is of significance here, as it is a parallel decision to LC v Alberta , 2010 ABCA 14 . The appeal there arose from a decision by Nielsen J as case management judge in this action.

The application before him was HMQ’s application to strike portions of the Plaintiffs’ Statement of Claim. [ 26 ] Nielsen J’s decision, which was unreported, is described at para 4: [4] Nielsen J. heard the application to strike portions of the Statement of Claim.

Though he acknowledged that these pleadings contained more details than those in C.H.S., he accepted Thomas J.’s reasoning to strike the various causes of action, including the alleged contraventions of the Bill of Rights, international conventions, and the constitutional torts, as well as the purported fiduciary duties and duties of care owed to family members.

While he opined that the claims based on s. 7 of the Charter and abuse of public office had potential, he found that they were not properly pled, and he shared Thomas J.’s view that it was inappropriate to grant leave to amend the pleadings in relation to these claims. [ 27 ] The Court of Appeal noted in para 3: [3] The allegations are framed against the Director based on the torts of trespass, negligence, breach of fiduciary duty, misfeasance in a public office/abuse of public office, unlawful confinement, along with a number of constitutional torts, violations of the Alberta Bill of Rights and certain international conventions.

The claim also alleges that the Amending Act was made in bad faith.

[28] At paras 17 - 19, the Court of Appeal held: [17] As in C.H.S., the appellants rely on the Director’s alleged failure to comply with its statutory duties. Additionally, they state thatthe procedures taken by the Director were unfair and failed to comply with principles of fundamental justice. In our view, this isarguable, and we will allow this claim to proceed at this preliminary stage of the proceedings, albeit with one exception.

That exceptionrelates to the allegations at paragraph 67 of the Statement of Claim, which challenge the constitutionality of the Amending Act on thebasis that it removed the Director’s obligation to file care plans. We think this allegation is irrelevant to the appellants’ claims, since theTGO here falls within the time period for which the Director remained obligated to file care plans, namely between February 2002 andNovember 2004.

The constitutionality of the Amending Act has no application to the appellants’ claims, and is essentially moot. [18] We will also permit the appellants to maintain their action under s. 9 of the Charter, as, in our opinion, it is at least arguable thatthe apprehension and confinement of a child is equated with the right to be free of arbitrary arrest and detention under s. 9 of the Charter:Alberta (Director of Child Welfare) v. K.B., 2000 ABPC 113 at para. 93.

The factual basis for this pleading is otherwisecontained in the Statement of Claim. [19] Nonetheless, as noted in C.H.S., the constitutional tort allegations are technically inadequate, as they do not plead that the Directorviolated their Charter rights intentionally or with wilful disregard for their Charter rights.

To the extent that the appellants have failed tomake any such allegations in their pleadings, we will allow them leave to amend their Statement of Claim to fulfil this requirement.Accordingly, the appellants are given leave to amend their pleadings within 30 days to clear up the defects in relation to theconstitutional torts. [29] At the time of that decision, CHS was still intended to be the class proceeding.

LC was proceeding as an individual action onbehalf of LC and her three children. [30] By late 2010, however, it appeared that CHS was no longer interested in or willing to pursue her action, so the intended classproceeding transferred to TW v Alberta (Edmonton and Area Child & Family Services, Region 6), Action No. 0803 08196. Difficultieswith that action made it unsuitable to proceed, so this action became the vessel for the intended class proceeding. [31] I have been case managing it since 2010.

My decisions in LC v Alberta (Metis Settlements Child & Family Services, Region10), 2011 ABQB 12 and LC v Alberta (Metis Settlements Child & Family Services, Region 10), 2011 ABQB 42, provide the backgroundto this litigation, so I need not repeat it here. [32] Parallel to that decision were decisions relating to the Plaintiffs’ application for advanced costs as well as applications relatingto the appointment of litigation representatives for both LC and EMP.

The pleadings in the action had yet to be amended following theCourt of Appeal’s decision at 2010 ABCA 14. [33] Since that time, I have had a number of applications and given a number of decisions. At 2011 ABQB 12, I dealt with theappointment of a litigation representative for EMP and gave the Plaintiffs advanced costs to amend the pleadings so that the action couldproceed to the certification application stage. [34] I summarized my rulings at para 95:

Summary 1. E.M.P. is in need of a next friend/litigation representative. 2. Denise Lightning is not appropriate to be a Court-appointed next friend/litigation representative because she is attorney for L.C. undera power of attorney and might be placed in conflict situations; 3. An appropriate next friend/litigation representative should be agreed between Mr. Lee and the Public Trustee; 4. The next friend/litigation representative is entitled to be paid for such service by the Crown; 5.

E.M.P. is entitled to advance costs from the Crown to obtain advice on her action against the Crown and to amend her pleadings toconform to the Court of Appeal decision in this matter and in C.H.S. as well as to convert it to a proposed class action (if determined tobe appropriate by the next friend/litigation representative); 6. E.M.P. may reapply for further advance costs once the pleadings have been amended; 7.

L.C. is not entitled to advance costs from the Crown at this stage of the litigation. [35] I dealt with issues concerning the involvement of the Public Trustee at 2011 ABQB 236 and then more substantively with theappointment of Philip Tinkler as EMP’s litigation representative at 2011 ABQB 237. [36] I approved Mr. Lee’s contingency agreement in this matter with Mr. Tinkler at 2011 ABQB 394. [37] At 2014 ABQB 183, I dealt with the Plaintiffs’ application to amend the Statement of Claim to include claims on behalf of the

grandparents and siblings of apprehended children who were the subject of TGOs. [ 38 ] I noted at paragraph 17: [17] The argument on this application (on December 20, 2013) focused on Charter claims, misfeasance in public office and duties owed by Child Welfare (and other government bodies or personnel) to the siblings and grandparents of apprehended children or children in government care.

With the exception of the claims put forward on behalf of siblings and grandparents, the Crown was content to allow the amendments, subject to their right to object to various claims proceeding at the certification hearing. [ 39 ] I had dealt with similar pleadings in an application to amend and cross application to strike in JO v Alberta , 2013 ABQB 693 which was a follow-up decision to JO v Alberta , 2012 ABQB 599 . [ 40 ] The significance of that case is that it was an individual action and was not intended to be a class proceeding.

It was not one of the “failure to file” cases. [ 41 ] In 2014 ABQB 183 , I dealt with the Plaintiffs’ claims for misfeasance in public office, and held at para 100: [100] In this case, the Court of Appeal gave the Plaintiffs leave in January 2010 to amend their pleadings to correct the deficiencies in pleading this tort. The Plaintiffs were given 30 days to do so. They have yet to advance amendments which satisfy this requirement. The time has come for the Plaintiffs to either comply (on behalf of EMP and LC) to put forward amendments which comply with Odhavji and now H(

G) v Alcock. One last 30 day period is appropriate. [ 42 ] My conclusions, at para 108, were as follows:

Section 7 Charter claims on behalf of parents may remain in the statement of claim, subject to finalization of appropriate pleadings in that regard;

Section 7 Charter claims on behalf of guardians should inferentially be included; 3. Siblings of apprehended children do not have s. 7 Charter claims in regard to the apprehension or the process surrounding the apprehension of their sibling and subsequent court proceedings in such matters; 4. Grandparents of apprehended children do not have s. 7 Charter claims in regard to the apprehension or the process surrounding the apprehension of their grandchild and subsequent court orders in those proceedings; 5.

Siblings and Grandparents do not have claims for malicious prosecution in relation to child protection proceedings involving their sibling or grandchild; 6. Siblings and Grandparents do not have claims for misfeasance in public office relating to the apprehension or the process surrounding the apprehension of their siblings or grandchildren and subsequent court proceedings in such matters; 7.

The misfeasance in public office presently advanced on behalf of EMP and LC is deficient, and must be amended to conform to the requirements of the Court of Appeal in C(L), within 30 days. [ 43 ] No appeal was taken from that decision. [ 44 ] Following that decision, the Plaintiffs sought to amend the Statement of Claim to include additional claims. When the application was withdrawn, a protracted fight over costs ensued, resulting in my decisions at 2014 ABQB 557 and 2015 ABQB 84 . The latter decision paved the way to the certification application. [ 45 ] On its path, however, was an application to exempt Mr.

Tinkler from potential liability for costs. I granted his application at 2015 ABQB 713 . [ 46 ] Outstanding is an application by the Plaintiffs for advanced costs relating to the certification application and the action post- certification application. [ 47 ] The certification application has overtaken the advanced costs application relating to it, but if I order certification, Mr.

Lee has made it clear that he is only prepared to proceed as counsel for LC and EMP if advanced costs are ordered. [ 48 ] I repeat this background here in detail to put the certification application in context, as well as to reflect decisions that have already been made on various aspects of the Plaintiffs’ claims and allegations by the Court of Appeal in CHS and in this case. C. The Certification Application [ 49 ] In this application, in essence, the Plaintiffs submit that all circumstances favour certification of the proposed class proceeding.

On the other side, HMQ argues the entire matter is overly complex and not well suited as a class proceeding. I summarize each of their respective arguments below. 1. Plaintiffs’ Argument [ 50 ] Below is my brief

summary of the Plaintiffs’ argument. They argue that the statutory requirements of s 5(1) are fully satisfied.

The pleadings, as they currently exist, disclose a whole host of causes of action against HMQ. The Plaintiffs propose two classes, the “Child Class” and the “Relative Class” (sometimes referred to as the “Parent/Guardian Class” or “Family Class”), as follows: Child Class All children who:

i) were in the care of the Crown, after April 17, 1982, under a Court Order granted under the Child Welfare Act, RSA 1980 c C-8 as amended, Child Welfare Act, SA 1984 c C-8.1 as amended, Child Welfare Act, RSA 2000 c C-12 as amended, and the Child, Youth and Family Enhancement Act, RSA 2000 c C-12 as amended (the “Child Welfare Acts”); and ii) remained in the custody, care and possession of the Crown, after the Crown failed to prepare a service plan and/or failed to file a service plan with the Court for the Children in care:

a) within 30 days of the child being taken into the care of the Crown or

b) within 30 days of each Court Order. Relative Class Parents and guardians of Child Class members. [ 51 ] The Plaintiffs argue that there is one overarching common issue: “What compensation, if any, are individuals affected by TS entitled to?” In their briefs, the Plaintiffs identify ten other common issues that fall under this general umbrella: 1.

Did the Defendant, during the period from April 17, 1982 to the date of the certification of this action as a class proceeding (the “Class Period”), owe a duty to some or all of the Child Class members to ensure that a service plan was prepared and/or filed with the Court and if so, what was the nature of the duty and when did the duty arise? 2. What policies, practices and systems did the Defendant have in place during the Class Period relating to the duties identified in #1? 3.

If a service plan was not prepared and/or filed with the Court by the Defendant, in accordance with the duties identified in #1, did the Defendant, during the Class Period, owe a duty to some or all of the Child Class members to protect their legal rights to take appropriate steps to obtain judicial review of their continued custody, care and possession, or to seek compensation on their behalf in relation to the Defendant’s failure to prepare a service plan and/or to file the service plan with the Court and, if so, what was the nature of the duty?

More particularly, did the nature of the duty require the Defendant to: a. advise the Child Class member, independent representative of the Child Class member, their parent, and/or their guardian of the breach of duty identified in #1? b. avoid a conflict of interest? c. provide independent representation and, where appropriate, independent legal advice? 4. What polices, practices and systems did the Defendant have in place during the Class Period relating to the duties identified in #3? 5.

Did the existence of, absence of, content of and/or motivation behind the policies, practices and systems of the Defendant identified in #2 and #4 result in a breach of the duties identified in #1 and #3 and, if so, did the breach constitute negligence and result in the legal consequence of being a trespass to the person, unlawful confinement, breach of fiduciary duty, abuse of public office, s. 7 Charter breach and/or s. 9 Charter breach against the Child Class members? 6.

If the answer to #5 is affirmative, can a quantum of general damages, special damages, exemplary damages, aggravated damages and/or a s. 24(1) Charter remedy be determined, and if so, what quantum are the Child Class members entitled to? 7. If the answer to #5 is affirmative, did the Defendant’s establishment and maintenance of the policies, practices and systems identified

in #2 and #4 amount to conduct that is so egregious or high handed as to justify an award of punitive damages? 8. If the answer to #7 is affirmative, what amount of punitive damages are the Child Class members entitled to? 9. During the Class Period, did the Defendant engage in systemic conduct that fraudulently concealed from the Child Class membersthat:

i) the Defendant had failed to prepare a service plan and/or failed to file a service plan with the Court for the Child Class members:

a) within 30 days of being taken into the care of the Crown or

b) within 30 days of each Court Order. Or ii) The Defendant had failed to protect the Child Class member’s legal rights, by failing to take appropriate steps to obtain judicialreview of the Child Class member’s continued custody care and possession, or to seek compensation on the Child Class member’s behalfin relation to the Defendant’s failure to prepare a service plan or to file the service plan with the Court in time. 10.

Any other common issues that arise as a result of a more complete Statement of Defence from the Defendant. [52] The Plaintiffs argue that when the Court considers the total circumstances of this case, all factors point towards a classproceeding as the preferable procedure for the fair and efficient resolution of the common issues. Moreover, a class proceeding willensure justice for all those who were wronged by the Crown’s failure to prepare and/or file service plans.

Lastly, the Plaintiffs argue thatEMP (by her litigation representative) is an appropriate representative plaintiff for the Child Class and that one of LC, Denise Lightning,or The Aboriginal Commission on Human Rights and Justice, would be an appropriate representative plaintiff for the Family Class. [53] Simply stated, the Plaintiffs argue that all the factors point to the Court granting their application for certification. [54] For the evidentiary foundation for the certification application, the Plaintiffs rely on the affidavits of Philip Tinkler (litigationrepresentative of EMP), LC, and Muriel Stanley Venne.

All three of them were cross-examined, and the transcripts of the cross-examination as well as undertaking responses are in evidence before me. [55] In support of the Plaintiffs’ arguments, a number of authorities are cited, including: Winnipeg Child and Family Services v KLW, 2000 SCC 48, [2000] 2 SCR 519; New Brunswick (Minister of Health and Community Services v G(J), [1999] 3 SCR 46, (SCC); TS v Alberta (Director of Child Welfare), 2002 ABCA 46 (TS #1); TS v Alberta (Director of Child Welfare), 2002 ABCA 90 (TS #2); LC v Alberta (Metis Settlements Child & Family Services, Region 10), 2011 ABQB 42; Strohmaier v British Columbia (Attorney General), 2015 BCSC 1189; Papassay v The Queen (Ontario), 2015 ONSC 3438; Pederson v Saskatchewan (Minister of Social Services), 2015 SKCA 87; Alberta (Child, Youth and Family Enhancement Act, Director) v CM, 2005 ABPC 357; AIC Limited v Fischer, 2013 SCC 69; Child Welfare Act (in all its iterations); Child, Youth and Family Enhancement Act, RSA 2000 c C-12; Class Proceedings Act, SA 2003, c C-16.5; Leonard I Rotman, Fiduciary Law, (Toronto: Thomson Carswell, 2005) at pp 297-349; Michael Ng, Fiduciary Duties: Obligations of Loyalty and Faithfulness, (Aurora, Ont: Canada Law Book, 2003) at pp 2-6 to 2-12, 5-15to 5-24;

Ward Branch, Class Actions in Canada, loose-leaf (Vancouver: Western Legal Publications, 1996); “Access to Justice, Judicial Economy, and Behaviour Modification: Exploring the Goals of Canadian Class Actions”, Alberta LawReview, (2009) vol 47:1, pp 187-188; “Reconciling Unity and Diversity in the Modern Era: Tolerance and Intolerance”, lecture by the Right Honourable Beverly McLachlin,PC, at the Aga Khan Museum, Toronto, Ontario, May 28, 2015; “Honouring the Truth, Reconciling for the Future”,

Summary of the Final Report of the Truth and Reconciliation Commission ofCanada, 2015; For the Welfare of Children: Lessons Learned from Class Action Litigation, Centre for the Study of Social Policy. 2. HMQ’s Argument [56] The Crown responded with an extensive brief, citing some 80-plus authorities in support of their opposition to certification.Affidavits from Russ Pickford, Danielle Lorieau, and Melissa Ferreira were provided in support of HMQ’s position. Mr.

Pickford wascross-examined and his transcript as well as undertaking responses are in evidence. [57] The Crown’s argument can fairly be described as an attack on all fronts. Respecting the first statutory requirement (whetherthe pleadings disclose a cause of action), the Crown suggests that the causes of action alleged are muddled and confusing. They areoverly broad in substance and, given that they cover more than 35 years and several changes to the legislative regime, they simply do notfacilitate certification.

Across those 35 years, the Director only had a statutory requirement to file care plans for 19 of them. Even if thefailure to file care plans gives rise to an action, the 2002 legislative amendments deemed all TGOs valid between 1985 and February 21,2002. According to the Crown, this remedied the situation during that time. Moreover, looking at each prospective cause of action, theCrown says the Plaintiffs cannot succeed on any of them. [58] In addition, the Crown argues that the Plaintiffs have not satisfied the second requirement for certification (identifiable classof two or more persons).

Specifically, the Crown points to the fact that there is seemingly no single overarching class. Rather, thePlaintiffs purport to graft many separate potential classes together. The Crown suggests that there will “inevitably be conflicts” betweenthe various groups and relies on Bywater v Toronto Transit Commission, [1998] OJ No 4913 (Ont Gen Div) at paras 10-11 in support ofthe argument that “the class definition ought not to be unduly narrow nor unduly broad”. Conflicts within a class are fatal to a proposedclass proceeding.

Essentially, argues the Crown, the claim is an amalgam of potential classes, not a true unified class. [59] Turning to whether there is a common issue, the Crown argues that none of the Plaintiffs’ proposed common issues justifiesclass certification – for either the proposed Child Class or the proposed Family Class. Specifically, the Crown argues that all of theproposed issues demand a review of the facts pertaining to the individual damages claims. This, it argues, is not conducive to classproceedings.

The Crown attacks every proposed common issue on similar bases. [60] Even if the Court is inclined to find that there are common issues to the proposed classes, the Crown argues that thePlaintiffs’ application fails on the preferability considerations. The Crown points to Hollick and the British Columbia Court of Appealcase of Thorburn v BC (Public Safety and Solicitor General), 2013 BCCA 480, as the authority for the process of ascertaining whethera class action is the preferable procedure to resolve the common issues.

An analysis of each of the factors identified at s 5(2) of the CPAinescapably points against certification. [61] Lastly, when looking at the suitability of the proposed representative plaintiff, the Crown urges the Court to look at thecapacity of the proposed class counsel, relying on Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46. [62] A proper consideration of the relevant statutory and common law factors, submits the Crown, can only lead to this Courtdismissing the Plaintiffs’ application for certification.

Particularly telling, it says, is that notwithstanding certification of the proposedclass proceeding, individual claims would still need to be evaluated and assessed on their own merits. None of the usual costs savings ofa class proceeding would be achieved, and all of the complexities of it would be present. 3. “Sur-rebuttal” Brief [63] The Plaintiffs filed what they described as a “Sur-rebuttal” brief that included an amended Reply to Statement of Defence anda number of further authorities.

The Reply to Statement of Defence was purportedly meant to address concerns raised in the Statement ofDefence and in HMQ’s Brief for this application. Further authorities were cited in the “Sur-rebuttal” brief: R v Ewanchuk, [1999] 1 SCR 330, (SCC); Susana Mas, “Truth and Reconciliation Commission final report points to ‘growing crisis’ for indigenous youth”, CBC News (14December 2015) online: www.cbc.ca/news; Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62; Wi-Lan Inc v St.

Paul Guarantee Insurance Company, 2005 ABCA 352; Vivendi Canada Inc v Dell’Aniello, 2014 SCC 1; R v Henkel, 2003 ABCA 23; Henry v British Columbia (Attorney General), 2015 SCC 24;

Alberta, Legislative Assembly, Hansard, 25th Leg, 2nd Sess, (24 April 2002) at 938-944; Alberta, Legislative Assembly, Hansard, 25th Leg, 2nd Sess, (17 April 2002) at 785-786; Alberta, Legislative Assembly, Hansard, 25th Leg, 2nd Sess, (25 April 2002) at 946-947, 949, 1009-1013; Alberta, Legislative Assembly, Hansard, 25th Leg, 2nd Sess, (25 April 2002) at 972-973; Alberta, Legislative Assembly, Hansard, 25th Leg, 2nd Sess, (30 April 2002) at 1019-1021; Alberta, Legislative Assembly, Hansard, 25th Leg, 2nd Sess, (6 May 2002) at 1179-1182; Alberta, Legislative Assembly, Hansard, 25th Leg, 2nd Sess, (6 May 2002) at 1179-1182; Alberta, Legislative Assembly, Hansard, 25th Leg, 2nd Sess, (8 May 2002) at 1248-1251; Bruce Cheadle, “Retroactive Conservative Rewrite of Legislation Undermines Rule of Law: Lawyers” , Huffington Post (January 1, 2016), online: www.huffingtonpost.ca; Affidavit of Lorne Sossin, affirmed September 21, 2015, Ontario Superior Court of Justice, Court File No. 15-64739 (Information Commissioner of Canada v Attorney General of Canada); Truth and Reconciliation Commission of Canada, What We Have Learned: Principles of Truth and Reconciliation , 2015; Final Report of the Truth and Reconciliation Commission of Canada, Canada’s Residential Schools: Missing Children and Unmarked Burials , vol 4, (Montreal & Kingston: McGill-Queen’s University Press, 2015); Suresh v Canada (Minister of Citizenship and Immigration), 2002 SCC 1 ; Universal Declaration on Human Rights Declaration on the Rights of the Child, 20 November 1959; Convention on the Rights of the Child, 20 November 1989 (entered into force 2 September 1990); Child Welfare Act , RSA 1980 c C-8; Child Welfare Act , SA 1984, c C-8.1; Authorson v Canada (Attorney General), 2003 SCC 39 ; Child, Youth and Family Enhancement Act , RSA 2000 c C-12 (as amended, including by SA 2003 c 16 s 3 and SA 2008 c 31 s 7; Canada (Prime Minister) v Khadr , 2010 SCC 3 ; A lberta ( Child, Youth and Family Enhancement Act , Director) v CAC , 2005 ABPC 345 ; Fontaine v Canada (Attorney General) , 2015 ONSC 7007 ; TR v Alberta (Criminal Injuries Review Board), 2006 ABCA 306 ; PAL v Alberta (Criminal Injuries Review Board), 2012 ABCA 177 ; CHS v Alberta (Director of Child Welfare) , 2008 ABQB 620 ; TL v Alberta (Director of Child Welfare) , Transcript of Proceedings (Excerpt), January 31, 2013; TL v Alberta (Director of Child Welfare) , Transcript of Proceedings, January 27, 2014. [ 64 ] One of the Plaintiffs’ main arguments in the “Sur-rebuttal brief” focuses on s 7 of the Charter .

The deprivation of life, liberty and security of person, as contemplated, can only occur in accordance with the principles of fundamental justice. Thus, HMQ’s failure to follow the express provisions of the Child Welfare Act and the CYFEA amounts to a failure to follow the rule of law. They further argue that the rule of law is a principle of fundamental justice. As such, when HMQ failed to prepare and/or file care plans or concurrent plans, the Crown deprived the Plaintiffs of their liberty or security of person not in accordance with the principles of fundamental justice. 4.

Authorities Citied During the Application [ 65 ] In the course of the application, as well as the lead up to the hearing, counsel identified and sought to rely on additional authorities: Affidavit of Donald Brookwell, sworn January 5, 2016 and filed January 12, 2016 (in this action); Alberta ( Child, Youth and Family Enhancement Act , Director) v CAC , 2006 ABPC 139 ; Alberta ( Child, Youth and Family Enhancement Act , Director) v CM , 2005 ABPC 357 ;

Alberta ( Child, Youth and Family Enhancement Act , Director) v GD , 2011 ABPC 4 ; Alberta ( Child, Youth and Family Enhancement Act , Director) v TP , 2007 ABPC 10 ; Brown v Canada (Attorney General) , 2013 ONCA 18 ; CHS v Alberta (Director of Child Welfare) , 2006 ABQB 241 ; Ernst v Alberta (Energy Resources Conservation Board) , 2014 ABCA 285 HMA, Re , 2015 ABPC 29 ; Horseman v Canada , 2015 FC 1149 ; Jones v Canada (Attorney General) , 2015 FC 1372 ; KR, Re , 2005 ABPC 210 ; R v Ipeelee , 2012 SCC 13 ; Rumley v HMTQ , 2003 BCSC 234 ; Rumley v British Columbia , 2001 SCC 69 ; SD v Alberta ( Child, Youth and Family Enhancement Act , Director) Alberta (Child, Youth and Family Enhancement Act, Director) , 2013 ABPC 29 ; Syl Apps Secure Treatment Centre v BD , 2007 SCC 38 ; Vancouver (City) v Ward , 2010 SCC 27 . 5.

Decision on Additional Authorities [ 66 ] At the hearing of the application, the Crown objected to the use of some of the Plaintiffs’ authorities. I advised that having regard to the Charter arguments being raised by the Plaintiffs, there was a broader scope for considering materials that would otherwise not be treated as evidence or authority.

This being so, I advised that I would not consider the following: Truth and Reconciliation Commission of Canada, What We Have Learned: Principles of Truth and Reconciliation , 2015; Final Report of the Truth and Reconciliation Commission of Canada, Canada’s Residential Schools: Missing Children and Unmarked Burials, vol 4, (Montreal & Kingston: McGill-Queen’s University Press, 2015); Susana Mas, “Truth and Reconciliation Commission final report points to ‘growing crisis’ for indigenous youth” , CBC News (14 December 2015) online: www.cbc.ca/news; Bruce Cheadle, “Retroactive Conservative Rewrite of Legislation Undermines Rule of Law: Lawyers” , Huffington Post (January 1, 2016), online: www.huffingtonpost.ca; Affidavit of Lorne Sossin, affirmed September 21, 2015; Ontario Superior Court of Justice, Court File No. 15-64739 (Information Commissioner of Canada v Attorney General of Canada); Affidavit of Donald Brookwell, sworn January 5, 2016 and filed January 12, 2016 (in this action).

D. Overview [ 67 ] It is clear that the Plaintiffs are taking an overly simplistic view of certification of a class proceeding in the circumstances of this case.

Conversely, HMQ is attempting to portray this action as an incredibly complicated matter that cannot possibly be conducted and managed as a class proceeding. [ 68 ] The main difficulty for HMQ is the basic, underlying circumstances of this case: a government department in a fiduciary relationship to vulnerable children who have been removed from their parents’ or guardians’ care by government authority that regularly failed to follow clear legislated requirements with respect to hundreds if not thousands of children.

When taken to task for this by the Court of Appeal in TS , HMQ brought an application for a stay which they later acknowledged was based partly on misrepresented facts. When the stay was unsuccessful, they legislated a “fix”. Despite the fix, the Department continued to breach its legislated requirements.

These circumstances cry out for some sort of class proceeding to determine if the victims of this conduct deserve some sort of remedy. [ 69 ] In my view, the most significant piece of evidence on this application is the chart prepared for the Deputy Minister of Children’s Services following the Court of Appeal decision in TS and leading up to the application for a stay and the amending legislation in June, 2002.

The information compiled in the chart came as a result of an email from Darryl Bertch, Acting Manager of Child Welfare Resources of the Ministry of Children’s Services, dated Friday, March 8, 2002 (four days after the TS decision)

requesting the recipients to, amongst other things, provide “a list of child ID numbers for any TGOs in your worksite that are notcompliant (i.e. a TGO granted over 39 days ago for which no care plan was filed). The introduction to the memo advises: It is therefore possible that if you have a TGO that was granted more than 30 days ago and for which no care plan has been filed, thatTGO no longer exists and the child is in care illegally. [70] The response to Mr.

Bertch’s request for information as of May 15, 2002 provides the statistics: Number of invalid TGOs 539 Number where the granting of the TGO had been contested 72 Number of families involved 332 Number where plans on file but not filed in Court 450 How many TGOs remain invalid 212 How many reapprehensions were conducted 49 How many letters were sent to parents 151 [71] A memo from the then-Minister Iris Evans to the Deputy Minister dated April 25, 2002 expresses: ...my most sincere dissatisfaction with the non-compliance of some staff members to file case plans as dictated in

Section 33 of the ChildWelfare Act. Although I understand there was refusal to file some of these case plans by the court itself, it was also discovered that notfiling within the dictated timelines was also a case of ‘regular practice’. [72] The above statistics, of course, do not tell the individual stories as to how the children came to be in government care and whya TGO was issued.

However, from the perspective of policy and legislation, the Director only sought TGOs when there was a reasonablechance as assessed by the individual child protection worker involved that the child might be reunited with the parents or guardian withina reasonable time. [73] The main difficulty for the Plaintiffs is the over-reach in their attempted class proceeding.

Rather than focus on the childrenwho remained in government care in the face of an expired TGO, the Plaintiffs seek remedies for all children taken into government caresince the effective date of the Charter to the present time as well as their parents or guardians. TS deals with children who were thesubject of a TGO that expired or became void because of the failure of the Department to comply with the requirements of the ChildWelfare Act. Expanding the potential plaintiffs to children subject to any order is simply too much of a reach.

As well, expanding thetemporal scope to pre-Child Welfare Act times and post-concurrent planning times is far too broad.

I do not intend to lose focus on thefact that the intended class action is to address remedies for parties affected by a child continuing in care after the expiry of TGO or otherorder that has expired because of the failure of the Department to comply with its legislated obligations. [74] HMQ acknowledges that children such as EMP, who fall within the time period from February 21, 2002 to October 31, 2004,have the strongest claims against HMQ as their circumstances were not “fixed” by the 2002 amendments to the Child Welfare Act. [75] Decisions from the Court of Appeal in this case and in CHS have already determined that parents and guardians were owed noduty of care by HMQ in the apprehension process, following Syl Apps Secure Treatment Centre v BD, [2007] 3 SCR 83, 2007 SCC 38.For parents and guardians, that leaves only Charter claims and claims for misfeasance in public office. [76] Claims for the children have been given more scope. [77] I can say from the outset that the claims as presented cannot be certified as a class proceeding.

There are too many flaws in thedescriptions of the classes, the common issues and the scope of the claims. HMQ urges me to simply dismiss the application, relying onCaputo v Imperial Tobacco Ltd., (2004), 236 DLR (4th) 438 (ONSC), because they say the Court should not be involved in framing theclasses or the common issues. [78] In my view, HMQ’s argument in that regard overstates the approach to be taken on a certification application.

In Hollick vCity of Toronto, 2001 SCC 68, McLaughlin CJ stated at paras 20 and 21: 20 The respondent is of course correct to state that implicit in the “identifiable class” requirement is the requirement that there be somerational relationship between the class and common issues. Little has been said about this requirement because, in the usual case, therelationship is clear from the facts. In a single-incident mass tort case (for example, an airplane crash), the scope of the appropriate classis not usually in dispute.

The same is true in product liability actions (where the class is usually composed of those who purchased theproduct), or securities fraud actions (where the class is usually composed of those who owned the stock). In a case such as this, however,the appropriate scope of the class is not so obvious. It falls to the putative representative to show that the class is defined sufficientlynarrowly. 21 The requirement is not an onerous one. The representative need not show that everyone in the class shares the same interest in theresolution of the asserted common issue.

There must be some showing, however, that the class is not unnecessarily broad – that is, thatthe class could not be defined more narrowly without arbitrarily excluding some people who share the same interest in the resolution ofthe common issue. Where the class could be defined more narrowly, the court should either disallow certification or allow certificationon condition that the definition of the class be amended: see W. K. Branch, Class Actions in Canada (1996), at para. 4.205; Webb v. K-Mart Canada Ltd. (1999), (ON SC), 45 O.R. (3d) 389 (S.C.J.) (claim for compensation for wrongful dismissal; class

definition overbroad because included those who could be proven to have been terminated for just cause); Mouhteros v. DeVry CanadaInc. (1998), (ON SC), 41 O.R. (3d) 63 (Gen. Div.) (claim against school for misrepresentations about marketabilityof students after graduation; class definition overinclusive because included students who had found work after graduation). [79] It is possible to certify a proceeding, conditional on amendments. I recognize that the Court should be slow to do the draftingitself, but in my view the Court can and should in appropriate cases give guidance.

Otherwise, the certification process becomes a game,waiting for the plaintiff to come forward with the perfect statement of claim describing the right classes and the right common issues. Ifthe plaintiff misses the mark, he or she is sent away to try again. That is hardly a wise use of scarce judicial resources, and misses thethrust of the new Alberta Rules of Court: to identify the real issues in dispute and to facilitate the quickest means of resolving the disputeat the least expense (Rule 1.2). E.

Analysis [80] The starting point for an analysis as to whether an action should be certified as a class proceeding is the legislation itself, andHollick v City of Toronto, on which the statute appears to be based: Sections 5(1)-(3) of the CPA provide: 5(1) In order for a proceeding to be certified as a class proceeding on an application made under

section 2 or 3, the Court must besatisfied as to each of the following: (

a) the pleadings disclose a cause of action; (

b) there is an identifiable class of 2 or more persons; (

c) the claims of the prospective class members raise a common issue, whether or not the common issue predominates over issuesaffecting only individual prospective class members; (

d) a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues; (

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 ofnotifying 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.

(2) In determining whether a class proceeding would be the preferable procedure for the fair and efficient resolution of the commonissues, the Court may consider any matter that the Court considers relevant to making that determination, but in making thatdetermination the Court must consider at least the following: (

a) whether questions of fact or law common to the prospective class members predominate over any questions affecting only individualprospective class members; (

b) whether a significant number of the prospective class members have a valid interest in individually controlling the prosecution ofseparate actions; (

c) whether the class proceeding would involve claims that are or have been the subject of any other proceedings; (

d) whether other means of resolving the claims are less practical or less efficient; (

e) whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief weresought by other means.

(3) Where the Court is satisfied as to each of the matters referred to in subsection (1)(

a) to (e), the Court is to certify the proceeding as aclass proceeding. [81] As a result, this is a sequential process, with a Court considering and weighing each of the above factors. Only when all of thefactors under (2) are determined in favour of certification is the action to be certified. In other words, all of these factors must be met (sees 5(4)).

The Plaintiffs bear the burden of establishing each of the certification requirements: Hollick; Windsor v Canadian PacificRailway, 2007 ABCA 294 at para 17. [82] The Court’s role on certification has been described recently in Pro-Sys Consultants Ltd. v Microsoft Corporation, 2013 SCC757 as a “meaningful screening device” (at para 103). 1.

Do the pleadings disclose a cause of action? [83] Pro-Sys Consultants describes the test at para 63, referring to its decision in Alberta v Elder Advocates of Alberta Society,2011 SCC 24: The first certification requirement requires that the pleadings disclose a cause of action. In Alberta v. Elder Advocates of Alberta

Society, 2011 SCC 24 , [2011] 2 S.C.R. 261 (“Alberta Elders”), this Court explained that this requirement is assessed on thesame standard of proof that applies to a motion to dismiss, as set out in Hunt v. Carey Canada Inc., (SCC), [1990] 2S.C.R. 959, at p. 980. That is, a plaintiff satisfies this requirement unless, assuming all facts pleaded to be true, it is plain and obviousthat the plaintiff’s claim cannot succeed (Alberta Elders, at para. 20; Hollick v. Toronto (City), 2001 SCC 68 , [2001] 3 S.C.R.158, at para. 25). [84] Both of these cases were decided before the Supreme Court’s decision in Hryniak v Mauldin, 2014 SCC 7. I recognize thatHyrniak v Mauldin dealt with

summary judgment. The principles in that case have been applied to cases other than

summary judgmentcases. An example of the approach being taken is Canadian National Resources Limited v ShawCor Ltd, 2014 ABCA 289. Theapplication there was in relation to privilege claims in affidavits of records. The Court of Appeal stated at para 5: [5] The Rules reflect the cultural shift identified in Hryniak v Mauldin, 2014 SCC 7 [Hryniak] at para 2: “... a culture shift isrequired in order to create an environment promoting timely and affordable access to the civil justice system. This shift entailssimplifying pre-trial procedures...” Accordingly, this shift should inform not merely this Court’s

interpretation of the specific rules underconsideration but the overall approach to civil justice issues before the courts. [85] The British Columbia Court of Appeal suggested as much in Wakelam v Wyeth Consumer Healthcare, 2014 BCCA 36, in itsdiscussion at para 64: [64] In so ruling, she acknowledged that it is “admittedly difficult” to strike a claim as having no prospect of success in the context ofrecent class action decisions.

The issue was, however, a matter of law alone which did not require a factual record for determination.(Para. 80.) As she explained: I find support for those conclusions in the recent decision of Justice Lax in Andersen [v. St. Jude Medical, Inc. 2012 ONSC 3660], which encourages a

summary appraisal of a claim in waiver of tort where circumstances permit. Further, her final comment atpara. 594 of her decision countenances a role for the legislature in developing the doctrine, a view consistent with the result I havereached: Given the philosophical and policy considerations mentioned above, it is my view that the fundamental question for a court to answer iswhether the recognition (or not) of the waiver of tort doctrine is within the capacity of a court to resolve, or whether it has such far-reaching and complex effects that it is best left to consideration by the Legislature.

On the basis of my experience, the answer to this andthe other questions surrounding the waiver of tort doctrine is not dependent on a trial with a full factual record and may require noevidence at all. I have considered whether this result unreasonably interferes with the objectives of class proceedings described by Chief JusticeMcLachlin in Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at 27-29, [2001] 2 SCR 534. I appreciate thatwhile striking Ms.

Koubi’s claim at this early stage may serve judicial economy, it may thwart access to justice for the class and may notserve the objective of deterring the appellants and other manufacturers and sellers from similar actions.

Nevertheless, while one mightadmire the strategic and creative use of a novel doctrine to transform individual loss to a common issue in a class proceeding, I amsatisfied it does not benefit the parties or the court to permit such a claim to proceed when it has no hope of success. [At paras. 81-82;emphasis added.] I fully agree with these observations (by which I am bound in any event) and would add that scarce judicial resources may be squanderedwhen difficult questions of law are continually side-stepped in the class action context. Certainly the Hunt v.

Carey test is an easy one tomeet, but it is not surmounted in all cases.

As recent decisions of the Supreme Court of Canada discussed below illustrate, it is likely tobe beneficial to all concerned, including the justice system, if such questions are directly addressed when raised at an early stage, ratherthan left for a trial that may never take place, or for another court in another case. [86] This decision was handed down before the Supreme Court’s decision in Hyrniak. [87] It is difficult to see that the “plain and obvious”, hopeless”, or “bound to fail” tests from Hunt v Carey and otherpre-Hryniak cases should still apply in light of changing times.

A “chance of success” should no longer determine whether a lawsuitshould proceed, especially in the context of class proceedings. It is curious that the penultimate paragraph in Hunt v Carey refers to a“reasonable” claim, following the Court’s discussion about the societal benefits of novel claims being allowed to proceed: The fact that a pleading reveals "an arguable, difficult or important point of law" cannot justify striking out part of the statement ofclaim.

Indeed, I would go so far as to suggest that where a statement of claim reveals a difficult and important point of law, it may wellbe critical that the action be allowed to proceed.

Only in this way can we be sure that the common law in general, and the law of torts inparticular, will continue to evolve to meet the legal challenges that arise in our modern industrial society. [88] I am inclined to think that a more modern test for striking pleadings will involve an assessment of a reasonable likelihood ofsuccess, rather than a chance of success. [89] This is, I believe, consistent with the approach taken by the Alberta Court of Appeal in Windsor v Canadian Pacific Railway,2014 ABCA 108.

As noted by HMQ in their argument, the tests of bound to fail or hopeless may have been replaced with a “reasonableprospect of success”. [90] Put another way, claims should not be allowed to proceed if there is no reasonable prospect of success. [91] This discussion is relevant to my approach on whether the Amended Amended Amended Statement of Claim (“SOC”)discloses a cause of action. [92] Broadly speaking the SOC alleges a number of causes of action:

(

a) Breach of Charter duties under s 7 and s 9; (

b) Breach of fiduciary duties; (

c) Breach of duty to prepare, file, implement and review service plans; (

d) Negligence; (

e) Assault; (

f) Trespass; (

g) Abuse of public office; (

h) Unlawful confinement/false imprisonment/unlawful detention; (

i) Malicious prosecution; (

j) Failure to protect legal rights; and (

k) Fraudulent and equitable concealment. [ 93 ] In her Brief of Law opposing this application, HMTQ describes her understanding of the nature of the claims she faces at para 16: 16. Since this action was filed in 2007 as an ordinary claim that was primarily focused on the failure in 2004 to file a service plan within 30 days of the granting of a temporary guardianship, it has metamorphosed into a proposed class action with vastly expanded claims vaguely now set out in an Amended, Amended, Amended Statement of Claim. Two certification proposals seem to seek yet further expansion of the causes of action.

These revised pleadings, different than those before the Alberta Court of Appeal when it decided CHS v Alberta and LC v Alberta in 2010, now claim as far as HMTQ is able to understand the following causes of action:

a) Breach of s.7 of the Charter for family members and children;

b) Breach of s.9 of the Charter for children;

c) Breach of a duty of care owed by HMTQ to children in care under any type of court order regarding service planning generally;

d) Breach of a fiduciary duty owed to children in care under any type of court order by HMTQ regarding service planning generally;

e) Breach of a duty of care owed to children in care under any type of court order by HMTQ to consider suing HMTQ for failing to file service plans;

f) Breach of a fiduciary duty owed to children in care under any type of court order by HMTQ to consider suing HMTQ for failing to file service plans;

g) Breach of a duty of care owed to children in care under any type of court order by HMTQ to consider suing HMTQ for breach of other alleged duties;

h) Breach of a fiduciary duty owed to children in care under any type of court order by HMTQ to consider suing HMTQ for breach of other alleged duties;

i) Unlawful confinement arising from children in care under allegedly invalid orders due to service plan issues;

j) Assault of children in care under allegedly invalid orders due to service plan issues;

k) Trespass of children in care under allegedly invalid orders due to service plan issues;

l) Malicious prosec

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