DM v Reeves, 2017 ABQB 139

Court of Queen’s Bench of Alberta Citation: DM v Reeves, 2017 ABQB 139 Date: 20170228 Docket: 1401 10710, 1401 10856 Registry: Calgary Between: 1401 10710 DM and MM Plaintiffs - and - Jonathan (Jon) Reeves, Christina Tortorelli, Val Naslund, Sam McLeod and Donika Collins Defendants Between: 1401 10856 DM and MM - and – Child & Family Services Authority, Christina Tortorelli, Associate Director (Executive Manager), Val Naslund, Manager, Sam McLeod, Team Leader, Donika Collins, Case Worker _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice P.R.

Jeffrey _______________________________________________________ [ 1 ] DM and MM appeal the decision of Master Prowse striking their two lawsuits.

He concluded that DM and MM did not have the necessary status to proceed with their claims and that their claims constituted an impermissible collateral attack on earlier court decisions: DM v Reeves , 2016 ABQB 68 . [ 2 ] DM and MM say that in striking their claims Master Prowse exceeded his jurisdiction, ignored pre-existing facts including that the Defendant Applicants (the Respondents) did not follow the Rules of Court , erred in concluding they do not have status with respect to the three children to bring these claims, misapprehended facts “altering testimony to suit his decision”, and allege the Courts’ complicity in a “corporate-cover-up for poor judgment and bad decision-making on the part of the Defendants [which] cannot be acknowledged because that makes the Government liable for an embarrassing cock up!!”.

Standard of Review [ 3 ] Decisions of a Master on appeal are reviewed for their correctness on all issues: Bhachelli v Yorkton Securities Inc , 2012 ABCA 166 at para 30 . An appeal of a master’s decision under Rule 6.14 is heard de novo and the standard of review is correctness: Stoney First Nation v Imperial Oil Resources Limited , 2014 ABQB 408 at para 31 ; Shallow Gas Drilling Corp v Legacy Oil & Gas Inc , 2015 ABQB 606 at para 31 . I consider de novo the Respondents’ application to strike. [ 4 ] As a de novo hearing, whether the Master erred is of no consequence.

I consider the merits of the original application rather than assessing whether the Master erred in any of the many ways that the Appellants allege. As a de novo hearing, the burden is not on DM and MM to persuade me that Master Prowse erred. I am considering anew the application to strike.

Legal Test [ 5 ] The test for whether to strike the Plaintiffs’ claims under Rule 3.68 of the Alberta Rules of Court , Alta Reg 124/2010 was summarized in R v Ernst v Alberta (Energy Resources Conservation Board) , 2014 ABCA 285 at para 14 , relying on R v Imperial Tobacco Canada Ltd , 2011 SCC 42 , namely: “whether there is any reasonable prospect that the claim will succeed, erring on the side of generosity in permitting novel claims to proceed.” Background [ 6 ] DM and MM are the paternal grandparents of three children who were apprehended by and placed in care of the Director of Child and Family Services (the “ Director ”).

DM and MM applied for guardianship; so did one of their sons, an uncle to the children; so did the Director. A lengthy trial was held in the Provincial Court of Alberta to determine those competing applications. [ 7 ] Prior to learning the outcome of that trial, DM and MM commenced these two law suits against various individuals employed by or on behalf of Child and Family Services (“ CFS ”) that they encountered during the events leading up to that trial, and against CFS itself.

The treatment DM and MM received at their hands compelled DM and MM to commence legal action – regardless of the outcome of the child protection and guardianship trial. [ 8 ] The Provincial Court of Alberta granted permanent guardianship to the Director: GBM (Re) , 2014 ABPC 248 . Attempts to appeal that decision have failed (decisions unreported): GBM (Re) , (25 November 2015), Calgary [FL01-14554] (ABQB); GBM (Re) , (18 August 2016), Calgary [FL01-14554] (ABQB); GBM (Re) , (13 December 2016), Calgary [1301-0371AC] (ABCA).

The following list outlines the events and procedural steps in that litigation and these claims.

It was provided by the Respondents and appeared to be accepted as accurate by DM and MM: May 2, 2012 Apprehension of plaintiffs’ grandchildren and order for interim custody to Director June 2012 Custody hearing – custody granted to Director June and July 2012 Director filed application for permanent guardianship and plaintiffs filed application for guardianship – trial dates scheduled in Provincial Court July 2012 Court order allowing plaintiffs access to records of Director, subject to terms and conditions August 2012 Plaintiffs appeal custody decision to QB appeal dismissed in August 2012 November 2013 Various applications by plaintiffs in QB concerning objections to the Director’s decisions on access to the children and to have the children transferred to their care.

Court Order: the court has no jurisdiction, plaintiffs barred from bringing further applications in QB until Provincial Court hearing concluded in its entirety Plaintiffs appeal to Court of Appeal; appeal dismissed in March 2014 November 2013 Provincial Court order barring plaintiffs from bringing further applications in that court before the trial date December 2013 Male plaintiff ordered by court to have no contact with the children other than that approved in advance and in writing by the Director December 2013 Disclosure by plaintiffs of confidential records about the children to third parties leads to court order allowing the plaintiffs access to records of the Director only through the Clerk’s office, on terms and conditions March – May 2014 Provincial Court guardianship trial (Judge Shaw) September 2014 Plaintiffs commence Action 1401-10710 October 2014 Plaintiffs commence Action 1401-10856 October 22, 2014 Judge Shaw decision: permanent guardianship of children granted to the Director; plaintiffs’ and other family member’s applications for guardianship dismissed Plaintiffs appeal decision of Judge Shaw October 2014 Defendants file Statements of Defence in both actions, indicating intention to bring applications to strike/dismiss and for extension of time to file Affidavits of Records (AORs) February 23, 2015 Defendants file applications to strike and to extend time to file AORs until after striking application (returnable March 10)

February 24, 2015 Plaintiffs file applications to compel Defendants to file AORs (returnable March 3) March 3, 2015 Application before Justice Millar – dispute as to order and subsequent matters result in no order being filed to date March 10, 2015 Order of Master Hanebury setting applications to strike for hearing on July 13, 2015; other matters set for April 13, 2015 April 13, 2015 Order of Master Prowse restricting publication of names of persons subject to identification ban under Child, Youth and Family Enhancement Act ; matter of AORs referred back to Justice Millar Justice Millar refers the matter of AORs to Master Prowse June 25, 2015 Defendants file and serve brief for special application July 3, 2015 Plaintiffs file applications to adjourn special application July 10, 2015 Order of Master Prowse extending time for Defendants to file AORs until conclusion of striking application; adjourning the special to November 25, 2015 (peremptory on the plaintiffs); staying the action in the interim; and awarding costs to the Defendants payable forthwith and in any event in the cause July 16, 2015 Plaintiffs file application for leave to appeal Master Prowse’s order August 5, 2015 Order of Justice Rawlins dismissing application for leave to appeal; directing all costs to be paid within a limited time; granting the Defendants leave to apply to strike the action should costs not be paid as ordered; and granting the plaintiffs leave to speak to the costs awarded at the special September 3, 2015 Defendants file application for leave to strike action for non-payment of costs by plaintiffs September 21, 2015 Order of Master Farrington ordering costs to be paid no later than September 23; costs of application to be decided at the special November 25, 2015 Plaintiffs’ appeal of Judge Shaw’s guardianship orders of October 22, 2014 struck by Justice Dario November 25, 2015 Application by Defendants before Master Prowse to strike actions Plaintiffs appeal decision of Justice Dario February 2, 2016 Decision of Master Prowse striking both actions; parties granted leave to speak to costs March 30, 2016 Application before Master Prowse regarding costs; costs awarded to Defendants July 19, 2016 Assessment of costs before assessment officer; costs assessed at $15,500 August 11, 2016 Plaintiffs appeal assessment officer’s decision August 18, 2016 Application by Plaintiffs to Justice Dario to reinstate appeals denied August 24, 2016 Order of Justice Kenny adjourning appeal of assessment officer’s decision to November 9, 2016; costs of application awarded to Defendants [ 9 ] I am also aware of the following further decisions made since then, after the foregoing list was compiled by the Respondents: December 18, 2016 Appeal of Justice Dario’s decision by Plaintiff’s to the Alberta Court of Appeal to reinstate the appeals denied by Appeal Justice MacDonald January 24, 2017 Decision of Judge O'Gorman to dismiss application by Plaintiffs to terminate guardianship of the Director over the children: DM v Alberta (Child, Youth and Family Enhancement Act, Director) , 2017 ABPC 12 . [ 10 ] Significantly, DM and MM chose to not testify at the Provincial Court Trial before Judge Shaw and, in particular, chose to not present evidence regarding any of the facts they allege in these civil claims.

Also, in that trial separate counsel participated for the children. [ 11 ] The Appellants construe all their defeats as evidence of a conspiracy against them. They say, in their oral submissions to the Court: MM: ...

I have a hypothesis that the Director of the legal enhancement team is, in actual fact, has a finger on manipulating the courts....And I will see if we get to the Supreme Court of Canada and that still steadfastly in unanimity with all the other dismissals, then I will know for a surety that there is something going on in the courthouse of Calgary that is not representing madam justice with blind eyes. It is deliberating and very systemically and systematically manipulating things, and I don’t like that feeling that one gets when we get into the courthouse here. And so I am testing this hypothesis.

So far I have found – The Court: And so if I decide against you am I part of the broader conspiracy? MM: Well, you might be... And later: MM: There are separate secret letters coming from separate secret person [ sic ] somewhere in the hierarchy of the Ministry of Human Services Child Welfare and Protection. Somewhere there are secret documents coming. And still further:

MM: There is a mole for Child Welfare and Protection in every government department. And in every professional governing body there is a mole in there that is usable by Child Welfare and Protection civil servants to get their wishes and their will done. [ 12 ] DM and MM’s shared belief that there is some CFS-centric directing mind orchestrating the actions of everyone that they have encountered, designed to undermine their specific interests, impedes me from receiving their allegations in these lawsuits at face value.

That is, DM and MM are the deponents of the evidence adduced in support of their arguments that their claims have merit and should be allowed to continue on to trial. Yet their affidavit evidence as to their observations and experiences will reflect that same conspiracy bias, reducing the weight of that evidence. [ 13 ] Nevertheless, strictly as a matter of logic, their belief in a CFS-controlled universe does not preclude the possibility that the allegations in their pleadings are true.

Their conspiracy theories do not mean they have not experienced the things of which they attest or that their allegations are without any merit or that their claims have no reasonable prospect of success. [ 14 ] DM and MM recognize that these law suits will not result in the return of their grandchildren. They say the claims were not filed for that purpose: MM: If we never get it – we would get the children back, and we would get something – some accountability from the – Court: Well, I can tell you right now, sorry for interrupting, in this process you won’t be getting the children back.

MM: No, I understand that. ...we want them to acknowledge they erred in decision-making and judgment... So the – the issue is we need relief. We want these civil servants held accountable for all the hurt, the aggravation, the emotional trauma. [ 15 ] The first law suit, Court Docket No. 1401-10710, seeks damages against various CFS employees and is founded primarily in tort. The parties refer to this as the “ Tort Action ”, as shall I.

The second law suit, Court Docket No. 1401-10856, seeks damages pursuant to the Canadian Charter of Rights and Freedoms against most of those same Defendants as the first action, plus CFS itself. The parties referred to it as the “ Charter Action ” and so shall I. I will deal with the Charter Action first.

The Charter Action [ 16 ] The Charter Action alleges breaches of sections 2 , 6 , 7 , 9 , 12 and 15 of the Charter , by the apprehension of the grandchildren, by the restrictions on mobility of and access to the children, for isolating the children from their support network, by cruel and unusual punishment in holding the children hostage, by unlawful detention of the children, and by kidnapping the children without first a diligent and good faith investigation.

They plead also a “Genocide Convention”. [ 17 ] These claims constitute a direct challenge on prior court decisions on applications under the provincial child protection legislation. It would be impossible for DM and MM to succeed on any of these claims without invalidating that legislative regime or undermining the court decisions made and upheld following appeals in applying that legislative regime. The Charter Action therefore must be struck. [ 18 ] It also warrants mention that individuals are not liable for damages under the Charter in their personal capacity.

Put another way, the individual Defendants in the Charter Action owe no Charter duty in their personal capacity to the Plaintiffs. The Charter addresses governmental action (and inaction). The action or inaction of governmental agents and employees may on behalf of government expose that government to liability under the Charter , but not those agents or employees personally.

Therefore the Charter Action claims against the individual Defendants have no hope of success. [ 19 ] Finally in respect of the Charter Action, the circumstances in which Charter damages have been awarded are very narrow: Vancouver (City) v Ward , 2010 SCC 27 at para 34 – 37 .

The procedural record, chronicled at paragraphs 8 and 9 above, and the other initiatives the Appellants have already pursued in respect of these same complaints (Professional Governing Body of Social Workers, Child Advocate Office, Legal Representation for Children and Youth, the Alberta Ombudsman, Premier Rachel Notley, prior to her becoming Premier, and several Ministers of Human Services, including Manmeet Bhullar and Heather Klimchuk), satisfy me as to the existence of an alternative remedy for them.

The Tort Action [ 20 ] The Tort Action names a wide range of causes of action: negligence, intentional infliction of mental suffering, defamation, deceit, intimidation, misfeasance in public office, breach of fiduciary duty, invasion of privacy and civil contempt. In oral argument more were added to the list, such as: “breach of moral turpitude”, breach of trust, breach of care, misfeasance, and intentional infliction of emotional distress. [ 21 ] Their actual pleadings, however, lack the requisite level of specificity as to who they allege did what to whom and when.

This alone militates strongly in favour of the Defendants succeeding in their application to strike the Tort Action. But pleadings can be amended to match evidence presented: Balm v 3512061 Canada Ltd , 2003 ABCA 98 at para 43 ; Paniccia Estate v Toal , 2012 ABCA 397 at para 33 – 35 ; Dow Chemical Canada Inc v Nova Chemicals Corp , 2010 ABQB 524 at para 21 . [ 22 ] The Defendants’ properly say they cannot defend themselves if they cannot know the case that will be asserted against them. DM and MM complain about that demand of the Defendants:

...the defendants’ argument seems to be ... that we have to name every breach, violation, feasance and act of negligence and attach the name of the civil servant who committed it... And our argument is you can’t determine success or failure based on facts that have not been heard... [ 23 ] While the law is flexible and accommodating in permitting parties to amend pleadings late into their litigation, it is nevertheless governed by principles of fairness.

A fair process entitles a party being sued to know the details of those allegations. “It is incumbent on the claimant to clearly plead the facts upon which it relies in making its claim”: Canada v Imperial Tobacco Canada Ltd , 2011 SCC 42 at para 22 . [ 24 ] Further, proceedings like this are the opportunity for plaintiffs to, as has been said in not dissimilar

summary dismissal processes, “put their best foot forward” and not hide the basis of their claims or their supporting evidence until trial. “A claimant is not entitled to rely on the possibility that new facts may turn up as the case progresses”: Imperial Tobacco at para 22. Now was the opportunity for DM and MM to demonstrate their claims have a reasonable prospect of success. If there are no such details, the sued party has a right to not be drawn through an expensive litigation process needlessly, where their success is obvious from the start. [ 25 ] DM and MM do offer some limited specifics.

The vast majority of the supporting examples they do offer were not committed by any of the Defendants. They refer to a Saskatchewan emergency room doctor who allegedly destroyed evidence of a grandchild’s sexual abuse by the maternal grandfather (DM is their paternal grandfather). They refer to judges editing transcriptions of their court rulings. They refer to overhearing CFS staff at the Hunterhorn Plaza office say amongst each other “As long as we have Mr So-and-so on the [ professional association conduct review ] appeal board, we don’t have to worry”.

The incidents attributed to others do not prove the case against the people DM and MM have named as Defendants. [ 26 ] DM and MM connect them all to the CFS, via their directing-hand conspiracy theory. They say, for example: The Court: Why are the defendants at risk for those events?...They’re behind it, is what you believe?...their clients, are behind it? MM: Yes.

And the chief manipulator is Tortorelli because I had written her and said that if the children come back from Saskatchewan having been molested, I will hold you, the executive manager at the time, accountable because you’re the one that gave the green light to the manager if the early intervention team to let the mother take the children to Saskatchewan after we told you that the children will be at risk for sexual molestation because the maternal grandmother [ sic ] is a documented, known sexual predator. And later: The Court: ...But we need to come back to whether these defendants can be held liable.

MM: Because they represent the same client and the finger that got [ their lawyer ] appointed is the same finger that got Judge Shaw appointed. [ 27 ] DM and MM theorize that this is why they have suffered so. They imply that no other explanation is possible, given the truth about, they say, what actually happened to their grandchildren. They maintain there must be corruption at the core; there must be a mole for CFS in the halls of all government departments; there must be some secret documents; there must be dishonesty and cover-up and the courts are complicit.

The CFS is controlling all the players DM and MM have encountered. For that theory to be accepted at trial the trial judge would have to be persuaded on balance that any other explanations for DM and MM’s experiences are not as plausible. [ 28 ] I consider that outcome to be extraordinarily unlikely. Any one of many, many alternate theories that would explain DM and MM’s experiences will far more likely be the trial finding.

Among the alternate possible outcomes are that one of the grandchildren did not tell DM and MM everything or everything accurately, or that DM and MM misperceive the evidence of their son’s possible role, or that DM and MM might have just been mistaken about one or some of the events that transpired, or that one or some player in these series of events made an honest mistake or error, and so on. None of these could result in legal liability for any of the Defendants. Again, to be clear, this assessment assumes that the things DM and MM allege are proven true at trial.

Given that assumption, I am just assessing the likelihood that their conspiracy theories would necessarily follow, leading to liability for one or some of the Defendants. I see no reasonable prospect for success for DM and MM from the actions of persons not named as party Defendants being attributed to the named Defendants by the conspiracy theory or, frankly, by any other means. [ 29 ] DM and MM do point to a select few behaviours, actions and statements of some of the actual Defendants.

They allege misleading affidavit evidence placed before the court – erroneous birthdates for their grandchildren in written documents for the court, mis-spelling one of the grandchildren’s names in documents for court, mis-stating which party initiated a particular legal application, mis-characterizing DM and MM’s actual request in the legal process. [ 30 ] They allege the Defendant Tortorelli instructed the Saskatchewan emergency room doctor to destroy evidence. They say also: MM: Sam McLeod told us that what the judge says from the bench doesn’t apply to us – to Sam McLeod and the caseworker and those people.

And so here we have an example for those people who need examples, that we were told interesting things. We were told that what the judge says from the bench doesn’t apply to Child Welfare and Protection workers, we were told that we are more powerful than the Police by Child Welfare and Protection workers. We were told that nobody will believe you anything because everybody is going to testify to our narrative and our version of the story by Child Welfare and Protection workers.

We were told that if you demand that, Ms. [M], in writing, you will never see your grandchildren again, and the man’s eyes were bulging out of his head and his whole face was puffed up and red. [ 31 ] Even assuming DM and MM prove at trial that such extraordinarily reprehensible and outrageous things were said and done by Tortorelli and McLeod, they do not persuade me DM and MM have any reasonable prospect of proving any of the causes of action in their Tort Action. Such conduct can be sanctioned and the perpetrators held to account, but not by these law suits. At law, the Defendants

did not owe any duty or obligation to DM or MM. [ 32 ] Therefore, the Plaintiffs’ Tort Action cannot succeed. [ 33 ] The Defendants say that DM and MM’s allegations relate directly to the decisions made in the child protection line of litigation and therefore constitute an impermissible collateral attack upon it. DM and MM say they are not attacking collaterally the earlier court decisions in the child protection line of litigation and that they are not by the Tort Action seeking to re-litigate anything. They say: MM: We don’t believe we are re-litigating any issues already dealt with in the ... trial.

We are only litigating issues of breaches of trust, breaches of care, breaches of fiduciary care, violations, feasance and acts of negligence, which were not heard [during trial] [ 34 ] But their comments elsewhere confirm how inextricably linked these matters are (see, for but one example, their comments excerpted at para 39 below). Their examples of allegedly tortious conduct are all in the context of the child protections proceedings.

By these comments they prove the Respondents’ argument that the only way DM and MM can succeed in the Tort Action is by establishing that there was a wrongful apprehension or at least by re-litigating some or all of the child protection litigation. [ 35 ] In my view, the Tort Action collaterally attacks the decisions of all three levels of court of this province in the child protection litigation. It impugns CFS decisions during the child protection process. It alleges that CFS brainwashed their grandchildren during the child protection process.

It alleges that CFS wrongfully obtained the May 2, 2012 apprehension order, and that CFS placed the children in foster homes where their needs were not met. These allegations directly attack through this collateral legal process the court decisions in the child protection line of litigation. They must be struck from the Tort Action. Nothing of substance is left of the Tort Action after that is done. [ 36 ] The Respondents also say, in any event, that DM and MM have no standing to bring these claims.

They say that DM and MM are not the children’s guardians, litigation representatives, or occupy any other capacity that would entitle them at law to bring action on behalf of the children. [ 37 ] DM and MM say in that regard: MM: ...we have and have had status as per common law as per the Family Law Act by practice, by literature, by execution of acts and duties and by case law out of the Supreme Court. Paragraph 19 talks about the duties and the power, and paragraph 22 talks about the English courts and the care, control, custody, actual custody, guardian and possession of the children. ...

MM: The children were apprehended only on a notice of apprehension, given to us. Not even given to the birth father or birth mother – to us, the grandparents – who apparently have no status, according to the Crown. No court order was presented to us because the children were with us in our home. They basically lived with us. [ 38 ] It may seem ironic to DM and MM that they were given the Notice of Apprehension at the time of apprehension, but that the Defendants now say they have no legal right to sue on behalf of the children.

However, first, DM and MM’s evidence that children were with them at the time of apprehension was contradicted by the evidence of a case worker, which Judge Shaw seemed to accept: “When she arrived to apprehend, only the youngest [grandchild] was with her grandparents, the other two siblings were at [another] house with their father and GM.” (para 22) Second, Judge Shaw, and on appeal also Justice Dario, rejected the argument that DM and MM stood in loco parentis to the children. Third, permanent guardianship of the children was vested in the Director by Judge Shaw.

DM and MM have no standing to bring any claim on behalf of or in the name of the children. They cannot usurp the rights of the children’s court ordered guardian. [ 39 ] DM and MM say their claims are not about the children, but about their own losses as a consequence of the harm done to the children. DM and MM’s pleadings name only themselves as plaintiffs, not the children. They stated in argument: DM: ...this is all about not what they did to the children, but also what they did to us. You see we, because of that, suffered PTSD, suffer trauma, suffer loss of – illness because of what they did to us ...

The children has [ sic ] been sexually molested in the foster care and there were physical hurt. [Our grandchild] for example broke his leg and I was – found out and I went to hospital and I met him. And so (INDISCERNABLE) was really total abuse, and in disclosure she was allowed to lie down for over half an hour on a bed and cry without end. And all the time says, how come I cannot come home? Why? Why? Why? And the disclosure document indicates the children have been actually hurt and spanked by the foster parents. Sexual abuse by the foster parents. We told them, we show it to them.

That’s why we say we will – all this issue has never been raised in a provincial court. We wanted to bring expert in the field to examine the children, bring expert from everything. We were not allowed. We would like to go to trial so we can point it out everything that has been done to children and the consequences of this.

This only serves to illustrate that in order to succeed in proving an entitlement to damages for the treatment of the children, DM and MM will first be undermining one or more of the decisions or rulings in the child protection litigation. [ 40 ] Ultimately, I am persuaded by the argument of the Defendants, that DM and MM have no standing to sue on behalf of the children, and the Defendants owe no duty of care to DM and MM. Nothing else is left of the Tort Action after I am persuaded of those two propositions, as I am.

Canadian Courts have reiterated on multiple occasions that “child protective authorities do not owe a duty of care to family members of children in their care” (see CHS v Alberta (Child, Youth and Family Enhancement Act, Director) , 2010 ABCA

15 at para 22 ; LC v Alberta , 2010 ABCA 14 at para 5 ; Syl Apps Secure Treatment Centre v BD , 2007 SCC 38 at para 48 ). Rather, the duty is to the child. Creating a duty of care to the family members would create a potential conflict that would “place additional undue strain in child welfare authorities and create...unnecessary policy consequences”, since the “well-being of a child will not always align with the interests of the child’s [family]” ( CHS at para 27 ). This case law is abundantly clear.

I am bound by it; that is, I cannot find otherwise no matter how sympathetic may be DM and MM. [ 41 ] While the law is clear that child protection agencies do not owe a duty of care to parents or extended family, it is equally clear that child protection agencies are not above the law. Courts have allowed claims of misfeasance of public office to proceed against child protection agencies (see LC v Alberta , 2010 ABCA 14 , where the Court allowed the plaintiff to amend the pleadings to properly disclose misfeasance).

In carrying out their mandate to “act in the best interest of the child”, child protection agencies are subject to the rule of law and are expected to display the independence, forbearance, respect and integrity that is demanded of individuals in whom statutory authority is entrusted. [ 42 ] Also, as I alluded to earlier, if I assume that all the facts DM and MM allege in their two Claims will be proven true at trial, they still cannot succeed on virtually any of their causes of action.

The facts alleged fall short of the facts that would have to be proven for them to succeed at law on most all of the things they have claimed. That is so even after I include in my considerations of DM and MM’s Tort Action not just their pleading but also all their affidavit evidence and the unsworn things said as part of their oral argument. The only exception I can possibly detect, acting generously to DM and MM, is the misfeasance claim. They allege that Tortorelli instructed evidence be destroyed and that CFS created ‘false court orders’.

Such allegations, if proven, may suffice to make out the tort of misfeasance. However, “absent the breach of an obligation that the Defendant owes to the plaintiff, there can be no liability” for public misfeasance ( Odhavji Estate v Woodhouse , 2003 SCC 69 at para 29 ). In this case, the Defendants do not have any obligations, statutory or otherwise, to the Plaintiffs as individuals. Further, in the guardianship trial the trial judge and subsequent appeal judge dealt specifically with the issue of the destruction of evidence. The trial judge found that there was no improper destruction of evidence.

His finding was not overturned on appeal.

Allowing the Plaintiffs to bring forward a claim of misfeasance of public office on this basis would be a collateral attack on the trial decision of Judge Shaw. [ 43 ] I note that in FRN v Alberta , 2014 ABQB 375 at para 32 , this Court stated that “grandparents...do not have misfeasance in public office claims relating to a grandchild...in child protection proceedings. [However,]...grandparents who are guardians or possible “near-guardians” may have a [misfeasance of public office]... claim... in exceptional circumstances”. [ 44 ] This does not assist these Plaintiffs for two reasons.

First, the Plaintiffs have never been guardians of the children. According to Justice Dario’s decision dismissing the Plaintiffs’ application to reinstate the appeal of the permanent guardianship order, the Plaintiffs first made a guardianship application for the children in February 2012, after the issues of alleged abuse started to arise. The Plaintiffs have never been the guardians of the children and their desire to be guardians only arose a few months prior to the children being apprehended. [ 45 ] Second, these are not exceptional circumstances.

DM and MM have not pleaded exceptional circumstances and the allegations they do plead have been addressed by Judge Shaw at the guardianship trial. Therefore, the Plaintiffs do not have the foundation for a misfeasance of public office claim against the Defendants. [ 46 ] In result, DM and MM have no reasonable prospect of succeeding on any of the causes of action they have named. Conclusion [ 47 ] For these reasons I dismiss the appeal. Heard on the 20 th day of September and the 18 th day of November, 2016. Dated at the City of Calgary, Alberta this 28 th day of February, 2017. P.R. Jeffrey J.C.Q.B.A.

Appearances: DM and MM, Self-Represented Appellants/Plaintiffs Jo-Ann L. Burgess, Alberta Justice and Solicitor General, Civil Litigation

for the Respondents/Defendants