LC v Alberta, 2017 ABQB 710

Court of Queen ’ s Bench of Alberta Citation: LC v Alberta, 2017 ABQB 710 Date: 20171121 Docket: 0703 10836 Registry: Edmonton Between: LC, EMP by her Litigation Representative Philip 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. _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Robert A.

Graesser _______________________________________________________ Introduction [ 1 ] This is the companion decision to my recent decision on advance costs for the child class in the class proceeding for the purposes of an application for leave to appeal to the Supreme Court of Canada in LC v Alberta , 2017 ABQB 629 .

[ 2 ] In that decision, I granted advance costs of $18,000 to allow EMP, as representative plaintiff for the child class certified in my decision LC v Alberta , 2016 ABQB 151 , to seek leave to appeal the Court of Appeal decision in LC v Alberta , 2017 ABCA 284 to the Supreme Court of Canada. [ 3 ] In this application, LC, as representative plaintiff for the parent and guardian class, seeks advance costs to file an application for leave to appeal the Court of Appeal decision on behalf of the parent and guardian class. [ 4 ] For the purposes of this application, I asked LC and Alberta to provide me with written arguments.

They have done so and I am now prepared to rule on the application without hearing oral argument. I have also received submissions on behalf of EMP through her litigation representative, a reply and sur-reply from LC and a reply from EMP. Background [ 5 ] Most of the relevant background is outlined in LC v Alberta , 2017 ABQB 629 .

It is not necessary for me to repeat it here. [ 6 ] The Court of Appeal narrowed the scope of the class proceeding to children and parents or guardians affected by the Director of Child Welfare’s failure to file care plans for children who were the subjects of Temporary Guardianship Orders within the time prescribed by the Child Welfare Act between 2002 and 2004.

My decision included children and parents or guardians similarly affected between 1985 and 2002 and from 2004 to 2009. [ 7 ] In my recent decision, EMP and LC sought advance costs so they could pursue a leave application on behalf of the excluded potential plaintiffs. For the reasons stated in that decision, I granted EMP advance costs in the amount sought.

I agreed to defer a decision on LC’s application so LC and Alberta could have additional time to submit further arguments because of changes in circumstances. [ 8 ] When the applications were filed, LC’s application was framed “in the alternative” in the event EMP was not given advance costs. [ 9 ] At the time the application was argued before me, EMP’s prospective Supreme Court counsel were going to seek leave on behalf of both the excluded child class members and the excluded parent and guardian class members. [ 10 ] All class members had been jointly represented in the Court of Appeal. [ 11 ] Between the time the application was argued and my making a decision on the matter, the wheels came off between EMP and LC.

EMP’s litigation representative filed a notice of change of solicitors such that EMP and the child class are now unrepresented. That is a significant development as the Class Proceedings Act requires that all classes have legal counsel. [ 12 ] Additionally, LC and the parent/guardian class, who continue to be represented by her original counsel, have refused to allow counsel proposed by EMP to act on the leave application because they had jointly acted for EMP and LC in the Court of Appeal.

The basis for such refusal is unclear, but Lerners LLP has now indicated they will not act for EMP and the child class in light of LC’s objection.

That leaves EMP scrambling for counsel with filing deadlines looming in the Supreme Court of Canada. [ 13 ] Alberta, to its credit, is prepared to consent to reasonable extensions in time for filing leave applications to the Supreme Court so the advance costs applications can be properly argued. [ 14 ] LC argues now that though EMP has advance costs, LC should have her own advance costs to seek to protect the interests of the potential parent and guardian class who have been excluded by the Court of Appeal’s decision.

It is clear that EMP is now not putting forward the interests of the excluded parent/guardian class. [ 15 ] LC has never been granted advance costs in this litigation, although she has made it clear throughout much of the proceedings before me that she will at some stage apply for advance costs to continue to pursue the litigation for herself and the parent and guardian class. [ 16 ] Mr.

Lee argues that when I last considered advance costs for LC and the then prospective parent and guardian class members in LC v Alberta (Metis Settlements Child & Family Services) , 2011 ABQB 42 , I concluded that LC met all of the criteria for advance costs, except for the test of having a prima facie meritorious cause of action. [ 17 ] That is not accurate.

I was satisfied that the first of the three Okanagan tests was met: that LC was unable to pursue the claim on her own behalf or on behalf of the parent and guardian class if she did not receive an award of advance costs. [ 18 ] I was then unable to conclude if there was a reasonable cause of action because of problems with LC’s pleadings. I did not find that LC met the third part of the test: whether the claims advanced transcended her personal interests. I stated at paragraph 92 of that decision: [92] However, different considerations apply for L.C. than with E.M.P.

L.C. was owed very different duties by the Crown. Until it can be established that her Charter claims are prima facie meritorious (which will require some analysis of the facts in the context of the pleadings specifically putting forward the Charter claims) the public interest aspect cannot be properly analyzed. [ 19 ] I stated at paragraph 94 that I could not then conclude that the public interest component of the Okanagan test had been satisfied. It is not satisfied by finding that LC and the parent/guardian class have a reasonable cause of action. [ 20 ] I think it is a fair

interpretation of the Court of Appeal’s decision at 2017 ABCA 284 that it confirms there is a reasonable cause of action for the parent and guardian class with respect to their Charter and other claims. Those have withheld the scrutiny of the Court of Appeal on two occasions, this fall and earlier in LC v Alberta , 2010 ABCA 14 .

[21] Since 2011 and the initial advance costs application on behalf of EMP and LC, LC has entered into a contingency feeagreement with Mr. Lee for the class proceeding. One gap in the contingency agreement is the conduct of appellate proceedings duringthe litigation. The current application relates to appellate proceedings, so LC presently has no counsel willing to pursue these appellateproceedings in the absence of advance costs. [22] For the purposes of this application, I accept that the first two Okanagan tests have been met.

That leaves the public interestquestion. [23] Is it in the public interest that LC and the parent/guardian class have advance costs to pursue a leave to appeal application? [24] On behalf of LC, Mr. Lee notes that in LC v Alberta, 2017 ABQB 93, I granted EMP advance costs for the purposes ofpursing the class proceeding on her behalf and on behalf of the child class. Alberta sought leave to appeal that decision to the Court ofAppeal. The leave application was denied at LC v Alberta, 2017 ABCA 133. [25] Alberta has since applied to appeal that decision to the Supreme Court of Canada.

On November 9, 2017, the Supreme Courtof Canada dismissed that leave application. [26] Mr. Lee argues here that the same public policy issues apply to LC and the parent/guardian class as apply to EMP and thechild class. Mr. Lee states “the only difference is that the Courts have decided that Child Welfare owes a fiduciary duty of care and aCharter duty to children. Child Welfare only owes a Charter duty of care to the Relative Class Members.” [27] With respect, those are significant differences.

The child class members, regardless of whether they were in the 1985-2002,2002-2004, or 2004-2009 groups, were wards of Alberta at the relevant times. Alberta owed them fiduciary duties. As apprehendedchildren in government care, these children were among the most vulnerable children in society. Essentially, these were innocent childrenwho were for some reason taken out of the care of their parents or guardians and kept in care following the expiry of the applicable courtorder. [28] The parents and guardians are in a very different situation.

No fiduciary obligations were owed to them by Alberta, and therewas no common law duty of care owed to them, as held in Syl Apps Secure Treatment Centre v BD, 2007 SCC 38 , [2007] 3SCR 83 and CHS v Alberta (Child, Youth and Family Enhancement Act, Director), 2010 ABCA. For various reasons, they were at therelevant time unable or unwilling to care for their children (in the eyes of Alberta and the Provincial Court of Alberta, which had grantedtemporary guardianship orders). [29] The ranks of the parent and guardian class undoubtedly include many disadvantaged and vulnerable adults.

But they wereadults at the time their children were removed from their care, presumably capable of making their own decisions, and they were notowed any specific duties of care by Alberta. [30] Governments do owe a duty to Canadians and residents of Canada not to violate their Charter rights, but there is to myknowledge no decision in Alberta that has found Charter violations in the Child Welfare context. Allegations of Charter breaches arebeing litigated, primarily in this case. But it is an overstatement to say that Child Welfare owes a Charter duty of care to the Relativeclass.

That is what this lawsuit is about, and that issue has not yet been decided. It will ultimately be decided at the trial of this action, ifand when that occurs. The strongest pronouncements on this come from the Court of Appeal’s decisions in various striking applications.Allowing pleadings to go forward is a far different test than finding that a duty has been breached. [31] In his argument on behalf of advance costs for the purposes of seeking leave to appeal, Mr. Lee relies heavily on principles offairness and access to justice for disadvantaged people.

He cites R v Jordan, 2016 SCC 27, and speaks of inordinate delays in getting hismatter to trial. It would be unhelpful for the purpose of this decision to analyze the delays in this matter and then apportion the timebetween the parties. In any event, Jordan is a criminal case and relates to the rights of accused persons under

section 11 of the Charter.That

section provides no rights or remedies for those involved in civil litigation. [32] Access to justice is a different matter. Hryniak v Mauldin, 2014 SCC 7, bemoans the civil justice system relating to expenseand the time taken to get to trial.

Again, this is not the time in this matter to address either of these issues. [33] The question for me is if there is a public interest sufficient to require the Government of Alberta to fund a leave applicationfor the parents and guardians who have been excluded from this class proceeding as a result of the Court of Appeal’s decision. [34] There are no accurate estimates of how many parents and guardians have been excluded from this action. Both sides appear toagree that the number is likely in the thousands.

It likely far exceeds the number of parents and guardians who have been permitted tocarry on by way of this class proceeding. It is interesting that over the course of the various lawsuits seeking to certify a class proceedingon behalf of parents and guardians affected by the Director’s failure to file timely care plans, only a handful of adults have come forward.All of those but for LC have fallen away. [35] Undoubtedly, as Mr. Lee has long argued, many of the potential parent/guardian class members do not know that they havepotential claims.

The potential scope of the claims goes back to 1985 and for many people the events of thirty plus years ago are longforgotten, or represent an unhappy time in their lives better kept suppressed and not fresh in their memories. [36] For me, one thing is clear: if the excluded parents and guardians are not included in class proceedings, their claims will neverbe advanced. Pursing individual claims would be a near impossibility. Self-represented litigants would be hard pressed to argue difficultliability and damage issues in a matter this complex.

So far, the only lawyer prepared to pursue these types of claims is Mr. Lee, and hehas for some time maintained that he is no longer willing to pursue these cases on a pure contingency basis and that he requires advancefunding. [37] There has been no rush of lawyers seeking to join in the class proceeding on behalf of any other plaintiffs. I doubt very muchthat an individual plaintiff would be able to find counsel to represent him or her on a pure contingency or pro bono basis.

[ 38 ] In most cases, it would appear that the “upside” is limited. Damages have not been argued and may vary widely depending on the circumstances of each family involved. But if the Director of Child Welfare’s failings over the relevant period amounts to a breach of parents/guardians’ Charter rights, all would appear to be entitled to some remedy.

As has often been repeated in these proceedings, rights without remedies are not really rights. [ 39 ] Alberta argues that “It would be contrary to the interest of justice and the principles pertaining to advance costs to award a second set of advance costs for a second leave application in these circumstances.” [ 40 ] In particular, Alberta notes that in previous submissions on this application, both Mr. Lee and Mr. Tinkler have taken the position that there are no differences in the legal arguments that would be made for the Child class and the Relative class members on the intended leave to appeal application.

Lerners LLP, when proposing to act for both classes on the leave application, stated that “there is no conflict between the Child class and the Parent class.” [ 41 ] Alberta had unsuccessfully argued before this Court and the Court of Appeal that the Parent class and the Child class were in conflict, and that they could not be maintained in one class action. [ 42 ] Alberta suggests on this application that the existence of conflict between the classes demonstrates that there should not be two classes of plaintiffs and there should not be separate funding for both sets of classes. [ 43 ] Alberta also submits that “One of the purposes of class actions is to have a fair and efficient resolution of the common issues and that awarding advance costs twice for the same application would fly in the face” of one of the main purposes for class proceedings: the avoidance of unnecessary duplication of fact finding and legal analysis. [ 44 ] Alberta argues that any conflict between the Child class and the Parent class demonstrates that there should not be two classes in the same class proceeding. [ 45 ] Further, Alberta suggests that LC’s current situation is of her own doing.

It was LC who refused to have Lerners represent the excluded parents and guardians, and it was LC who refused to allow Lerners to continue to represent EMP. [ 46 ] Until a month ago, EMP and LC were making common cause. Common cause continued at the beginning of this application. The reasons for the currently dysfunctional relationship between EMP and LC are presumably sheltered by solicitor and client privilege. [ 47 ] Alberta argues that “the reason LC apparently no longer wants Lerners LLP involved is that LC believes that Lerners LLP has not done a good job, and that she needs Mr.

Lee to fix the case.” [ 48 ] Without knowing more about the reasons for the falling out, I am critical of Mr. Lee’s conduct in causing these difficulties for EMP, his former client. How this works to LC’s advantage is unknown. The reality is that EMP (although she is LC’s daughter) has a court-appointed litigation representative, Philip Tinkler. One of the reasons Mr. Tinkler was appointed litigation representative was because of potential conflicts of interest between the child class and the parent/guardian class.

It appears that is coming to pass. [ 49 ] I note here that there are differences between conflicts in legal positions and conflicts in strategic positions and strategy. What I have decided previously and what the Court of Appeal seems to have confirmed is that the legal positions between EMP and LC are not inconsistent. Once class’s claims do not contradict or negate the other’s. [ 50 ] That does not mean that there may be different strategic approaches. Here, LC is not saying that her legal position, or that of the parent/guardian class she represents, is in conflict with EMP’s legal position.

The differences between the two classes appear to relate to who should be representing the interests of both classes on the leave application. Mr. Tinkler as EMP’s litigation representative says it should have been Lerners; while LC was initially in agreement with that, her position is changed and she now wants Mr. Lee to be in charge of presenting the leave application or finding someone other than Lerners to do it. [ 51 ] In Mr. Lee’s sur-reply brief, he states: Mr. Tinkler is not acting in EMP’s interests and he will be taking steps to have Mr. Tinkler removed. Mr. Lee also suggests that Mr.

Tinkler wants LC removed as representative plaintiff. [ 52 ] What this demonstrates is that the entire proceedings are at risk of grinding to a halt because of infighting. It is indeed unfortunate that these events are occurring. In the meantime, however, there are excluded parent/guardian class members whose hope for preserving their claims is slipping away. Their last realistic chance to receive a remedy for any Charter breach is to be included in this class proceeding. [ 53 ] I am very reluctant to grant advance costs in this situation. I do see it as largely self-inflicted by LC.

There is an element of a dog-in-the-manger approach being taken by LC: if she can’t have her counsel of choice present the leave to appeal argument, she would rather have no argument made on behalf of the excluded class members than have it made by EMP’s counsel. Alberta describes this as “hostage taking” in relation to this application: give LC advance costs; otherwise, the interests of the excluded class members will not be represented. [ 54 ] That being said, there may be legitimate reasons why LC’s and EMP’s interests are not fully aligned in seeking leave to appeal to the Supreme Court.

The legal interests overlap, but the child class has more causes of action they are pursuing. They are in a more sympathetic situation, having been wards of the government and been owed fiduciary obligations. But those factors do not appear to work against giving leave to the parent/guardian class.

Because of the common legal interests, it is more likely that the parent/guardian class may be able to piggy-back on EMP’s more sympathetic position in getting leave to appeal. [ 55 ] For the purposes of seeking leave, I conclude that LC should be given a modest amount of advance costs for the purposes of filing a leave application on behalf of the excluded parent/guardian class members. I cannot think that it needs to do anything more than

file an application on behalf of those members and essentially rely on the arguments put forward by EMP. I am unaware of any meaningful difference in the legal position of the parents/guardians from that of the children, for the purposes of appealing from the Court of Appeal decision. [ 56 ] Mr. Lee argues that LC’s position should not be simply a “me too” argument. I disagree. Nothing has occurred lately regarding the merits of the parties’ respective claims. What has occurred is an unfortunate breakdown between Mr. Lee and Mr. Tinkler.

However, having regard to the potential impact of not being represented at all in the Supreme Court, a small amount of advance costs is not contrary to the interests of justice. [ 57 ] I set the amount at $6,000, being one-third of that awarded to EMP. It is implicit in this decision that EMP share on a timely basis her proposed application for leave so that LC can file a similar application with whatever additions or deletions LC’s counsel may consider appropriate. [ 58 ] The decision herein should have no precedential value for any further Okanagan-type applications in this matter.

This is an urgent matter that requires a quick answer. The interests of the excluded parent/guardian class members need some protection, and in the context of this litigation, requiring the government to pay $6,000 to have the country’s highest court rule on this issue is not a significant cost. [ 59 ] If leave is granted to LC, this decision does not mean that she will be entitled to any advance costs for the hearing of the appeal. Heard on the 10 th day of October, 2017. Dated at the City of Edmonton, Alberta, this 20 th day of November, 2017. Robert A. Graesser J.C.Q.B.A. Appearances: Robert P. Lee Robert P.

Lee Professional Corporation for LC Philip Tinkler Dentons Canada LLP litigation representative for EMP

Glenn Epp and Stephanie Bowes Alberta Justice for Her Majesty the Queen in Right of Alberta