LC v Alberta, 2021 ABQB 23

Court of Queen’s Bench of Alberta Citation: LC v Alberta, 2021 ABQB 23 Date: 20210111 Docket: 0703 10836 Registry: Edmonton Between: LC and EMP Plaintiffs - and - Her Majesty the Queen in Right of Alberta as Represented by the Director of Child Welfare Defendant 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 way that reveals that the child is receiving, or has received, intervention services. NOTE: This judgment is intended to comply with the identification ban. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Robert A. Graesser _______________________________________________________ Introduction [ 1 ] This is the parallel decision to LC v Alberta , 2021 ABQB 24 .

In that decision, I denied Philip Tinkler’s application as litigation representative for EMP to have Robert Lee removed from this lawsuit as counsel for LC and as counsel for the adult plaintiff class. [ 2 ] This application is LC’s application to have Philip Tinkler removed as EMP’s litigation representative on the basis of alleged conflicts of interest.

[3] Mr. Tinkler opposes the application. Lengthy affidavits were filed by the parties and to expedite a decision on this issue (aswell as the companion issue of Mr. Tinkler’s application to have Robert Lee removed as counsel for LC on the basis of conflict ofinterest and incompetence), it was agreed that I would decide the issues on the basis of written submissions, subject to any questions orclarifications I may have of counsel. [4] I have read the affidavits and counsels’ briefs and consider that I am able to fairly determine the issues raised without theneed of an oral hearing.

Background [5] I have been case managing this litigation since 2010. The status of this class proceeding is that it has been certified, appealsfrom certification have been concluded, and the action is ready to proceed to production of records and questioning. Those steps havebeen on hold pending determination of a number of issues, including determining compensation for Mr. Lee for his services as counsel toEMP until July 2017 and the disqualification applications. The class proceeding with respect to LC and the adult class is also stalled,pending her application for advance costs.

That cannot be scheduled because of the uncertainty in Mr. Lee’s status as her counsel. [6] This action was initially commenced by LC in her own behalf and as Next Friend for her children, including EMP. In 2011(LC v Alberta, 2011 ABQB 42), I concluded that EMP should have a litigation representative other than her mother because of potentialconflicts between the proposed adult class and the proposed child class in the intended class proceeding. Mr. Tinkler was appointed, onthe recommendation of Mr. Lee, who was then representing both LC and EMP. [7] A contingency agreement was entered into between Mr.

Lee and Mr. Tinkler as EMP’s litigation representative, retainingMr. Lee to represent EMP (and the proposed child class) in the litigation. The contingency agreement was approved by me. [8] It was understood that Mr. Lee would be representing EMP and LC in the lawsuit. [9] At the same time, I awarded advance costs to EMP to amend the pleadings in the action so that they would be in shape for acertification application.

That was a lengthy process, but ultimately the pleadings were finalized and the certification applicationproceeded in early 2016. [10] My advance costs award did not apply to the certification application itself, but to expedite the certification application, Mr.Lee and Mr. Tinkler decided to make the certification application rather than first make an application for advance costs to make theapplication. Mr. Lee intended to apply for advance costs on behalf of LC and the intended adult class, but that application too was put onhold, partly because Mr.

Lee was already entitled to advance costs for work on the pleadings for EMP, and partly because of schedulingissues. [11] EMP and LC were successful on the certification application and I eventually awarded them costs for that application.Following certification, and pending HMQ’s appeal of the decision, EMP applied for, and was successful in obtaining advance costs topursue the class proceeding on her behalf and on behalf of the child class.

HMQ unsuccessfully appealed that decision (2017 ABCA133), and its application for leave to appeal to the Supreme Court of Canada was denied ( (SCC)). [12] HMQ’s appeal of the certification decision was partly successful (2017 ABCA 284), and the scope of the class proceedingnarrowed by limiting claimants to a relatively brief time period of involvement with Alberta Child Welfare (2002 to 2004 instead of 1985to 2009).

EMP and LC sought leave to appeal that decision to the Supreme Court of Canada, and their applications were ultimatelydenied in October 2018 ( (SCC)). [13] During the Director’s certification appeal to the Alberta Court of Appeal, the relationship between Mr. Tinkler and Mr. Leedeteriorated, and it completely fell apart during the Supreme Court leave application process. During that process, Mr. Tinkler fired Mr.Lee and proceeded to make the application for leave to appeal for EMP and the child class on his own. [14] Once the leave applications were dismissed and the action could proceed, Mr. Tinkler retained Ms.

Boscariol to representEMP and the child class. Mr. Lee was unwilling to continue to represent LC and the adult class without advance costs. There was somediscussion about Ms. Boscariol representing both classes, but that did not go very far. Before Mr. Lee could proceed with the advancecosts application for the adult class, Mr. Tinkler brought an application to have Mr. Lee removed as counsel for LC and the adult class.Mr. Lee countered on behalf of LC by seeking to have Mr. Tinkler removed as litigation representative for EMP. [15] EMP will turn 18 in February 2021, so Mr.

Tinkler’s role as her litigation representative will end. EMP has, through Mr. Leeand LC, made it clear throughout that she does not want Ms. Boscariol to represent her and she has not cooperated at all with Ms.Boscariol since Mr. Tinkler retained her. It appears clear that once EMP turns 18, she will fire Ms. Boscariol and will hire Mr. Lee. Basis for Application [16] Mr. Lee filed an application “to review the Representative Plaintiff for the Child Class Members” on January 15, 2019. It wassupported by the affidavit of LC, sworn January 9, 2019. The stated bases for removal are firstly, that Mr.

Tinkler is “in a conflict ofinterest because Denton’s LLP is in a business conflict of interest and is unwilling to sue the Government of Alberta for fear of losingbusiness from the Government of Alberta.” Additionally, Mr. Lee has told her that he has significant support from class members and ifMr. Tinkler is not removed, many child class members will opt out. They would not opt out if Mr. Lee were their counsel. LC’s affidavitnotes her and EMP’s wish that Mr.

Lee be counsel. [17] CC, EMP’s older sister and LC’s daughter, swore an affidavit on May 31, 2019, providing her willingness to be EMP’slitigation representative, and repeating what she had been told by Mr. Lee about the lawsuit and Mr. Tinkler. CC swore a further affidaviton July 29, 2019, complaining about delays in EMP’s case caused by Mr. Tinkler (being busy in July and being on holidays in August). [18] Mr. Lee sent a set of written interrogatories to Mr. Tinkler dated June 8, 2019. Mr. Tinkler responded by way of an affidavit

sworn August 23, 2019. [19] The evidence of Mr. Lee and Mr. Tinkler diverge on the details of what was said by Mr. Tinkler on the subject of his firm’srelationship with the Government of Alberta, why Mr. Tinkler was not willing to take on EMP’s case on a contingency basis, and whensuch discussions took place. [20] Mr. Lee interpreted what he heard from Mr. Tinkler is that Mr. Tinkler’s firm (Fraser Milner Casgrain LLP at the time) wasopposed to him suing the Alberta Government, as it believed it had lost work from the Government as a result of acting against it in othermatters. Mr.

Lee describes that as a “business” conflict. [21] Mr. Tinkler denies the existence of a business conflict and says that he and his firm have on some occasions acted against theinterests of the Alberta Government. Mr. Tinkler responded to the question as to why he would not act for EMP on a contingency basisin the answers to written interrogatories. He stated that the question only arose before he was appointed litigation representative for EMPin April 2011. [22] Mr. Tinkler says that when Mr. Lee made that request, Mr. Tinkler initiated a conflicts search within his firm.

The firm’ssystem identified a potential conflict that prevented him from taking the matter on. He said that conflict was that his firm represented theOffice of the Child and Youth Advocate (“OCYA”). He understood at the time that Mr.

Lee had “from time to time sought to questionOCYA staff members as witnesses in various types of contentious proceedings, and was generally expected to continue to seek to do so”and stated “my firm had concerns about the potential for perceived or actual conflicts in its representation of the OCYA and its staff ifthe firm were to accept an engagement to act as co-counsel to the Plaintiffs in this action.” [23] Mr. Tinkler says that he advised Mr. Lee of the conflict review and that it had identified a potential conflict which preventedhim from taking the matter on. He did not give Mr.

Lee the details of the potential conflict, and says the matter did not come up again. [24] When asked if he had told Mr. Lee that Dentons had a business conflict with suing Child Welfare, Mr. Tinkler said that it wasnot his practice to advise a prospective client of the specific nature of a proposed engagement (due to confidentiality issues), but heacknowledges that Mr. Lee may have inferred that the issue in EMP’s case raised a “business conflict”. He says he advised Mr. Lee thatthere was “no formal conflict preventing me from accepting such an engagement.” [25] Mr.

Tinkler also said in his reply that he had told Mr. Lee that his firm had determined that there was no conflict preventinghim from acting as EMP’s litigation representative. [26] I need not reconcile the competing versions, because following cross-examination of Mr. Tinkler on his affidavit of February19, 2019, and before Mr. Lee swore his affidavit in support of this application and in opposition to Mr. Tinkler’s application to removehim, Mr. Lee learned that Mr. Tinkler’s law firm, Dentons LLP, acts for the Office of the Child and Youth Advocate (“OCYA”) and hasdone so since before Mr.

Tinkler’s appointment as EMP’s litigation representative. That was the “conflict” Mr. Tinkler had told himabout previously, without identifying the entity creating the conflict. [27] An amended application was filed on December 4, 2019, following my directions that be done at a case managementconference on November 18, 2019. For the purposes of this application, Mr. Lee’s main focus was on the alleged conflict by reason ofthe Dentons connection to the OCYA. [28] Mr.

Lee says that Dentons’ representation of the OCYA was not disclosed to him when he was looking for a litigationrepresentative for EMP and eventually recommended Mr. Tinkler to me for appointment. I think it is clear that Dentons’ involvementwith the OCYA was not known to Mr. Lee (or myself) until it was raised in 2018. Mr. Lee says this should have been disclosed to him,and that if it had been disclosed, he would not have recommended Mr. Tinkler’s appointment. [29] It was understood from the time of Mr. Tinkler’s appointment as EMP’s litigation representative, that Mr.

Lee would continueto act as counsel in the lawsuit, representing both EMP, LC, and their respective proposed classes. While I had directed that EMP havesomeone other than her mother as litigation representative because of potential conflicts, having Mr. Tinkler as litigation representativeand him giving instructions on behalf of EMP and the proposed child class, satisfied my concerns about potential conflicts. [30] Mr.

Tinkler himself has had no involvement with the OCYA, and that client is looked after by other members of the firm.That being said, it is clear from MacDonald Estate v Martin, (SCC) that all members of a law firm are potentiallyconflicted by the activities and representations of any other member of the law firm. [31] Mr. Tinkler described his firm’s involvement with OCYA in his affidavit of August 22, 2019. [32] Mr. Lee filed a number of affidavits in support of his application, including his own affidavit sworn November 28, 2019, andmost recently two affidavits from his assistant Susan Then. Ms.

Then’s affidavit sworn November 16, 2020, was filed in conjunction withMr. Lee’s rebuttal brief dated November 17, 2020, and her second affidavit sworn November 25, 2019, relates to Mr. Lee’s sur-rebuttalbrief dated November 25, 2020, as well as the involvement of Jackie Stewart in the TW litigation (Action No 0203 19700). [33] At the outset, it should be noted that the OCYA is not a party to this lawsuit. Indeed, since the beginning of case managementin this matter, Mr.

Lee has emphasized portions of reports from many years ago authored by former Child and Youth Advocates criticalof many aspects of Alberta Child Welfare. Excerpts from the 2000-2001 annual report have found their way into many of the affidavitsfiled in support of Mr. Lee’s position (including his own). It has always appeared that Mr. Lee would likely seek to call former Child andYouth Advocates to testify in support of the Plaintiffs. Very recently, Mr.

Lee learned that a former senior Child Welfare manager,Jackie Stewart, has been with the OCYA (not as the Advocate herself but working in their office) from 2010 to 2019. [34] Most importantly to Mr. Lee, Ms. Stewart had some involvement in a lawsuit commenced by TW against HMQ and a numberof Child Welfare employees in 2008 (Action No 0803 08196).

[ 35 ] Ms. Stewart was at the time that lawsuit began in 2008 an employee of Child Welfare. Her position was that of “Manager of Litigation Support for the Ministry of Children’s Services”. Mr. Lee was counsel at the time. That lawsuit is now active, having been stayed until the conclusion of the class proceeding for the “failing to sue” claims against HMQ in TL v HMQ . [ 36 ] A letter from Allan Garber, counsel for TW, sent to counsel for the Defendants on November 12, 2020, notes that “Jackie Stewart was examined on the Government Defendant’s Affidavit of Records on July 16, 2004.” [ 37 ] Ms.

Stewart is not a defendant in this lawsuit and does not appear to have had any involvement with it. Additionally, there is no evidence that Mr. Tinkler or anyone from Dentons has ever had anything to do with the TW lawsuit, or with Ms. Stewart. The OCYA is not a party to that lawsuit, and if there was a sincere belief that the OCYA had committed any wrongs against children in care, there has been more than 16 years to seek to amend that lawsuit, amongst the many others alleging wrongs by the Director. [ 38 ] Mr. Lee has long expressed concern about Ms. Stewart in her role as Manager of Litigation Support.

In Mr K v EK , 2003 ABQB 500 , Ms. Stewart gave affidavit evidence about a number of people’s roles within Children’s Services, and about the Department’s record-keeping, document storage and decisions concerning legal representation for children in care. [ 39 ] Her evidence was summarized by the case management judge, who stated at paragraph 5: [5] Ms. Jackie Stewart gave evidence in her affidavit about the roles of Ms. Iris Evans, the current minister responsible for Children’s Services, Mr. Meade, and Mr.

Lewis with respect to the Department’s record keeping, document storage, and decisions concerning legal representation for children in care or individuals who were formerly children in care. She also gave evidence about her own role and swore that as Manager of Litigation Support for the Ministry of Children’s Services, she is primarily responsible for requesting, searching, identifying and gathering documents for review by counsel to determine relevance for this lawsuit.

She also gives extensive evidence about the types of documents retained by Child Welfare, the Department’s retention policy, and the numbers and locations of retained documents. It is evident from Ms. Stewart’s affidavit that the Department has retained huge numbers of documents and that these are stored throughout the province at a number of locations. As well, the inventory system employed by the Department lists stored documents by file name only and each individual document within a file is not included in the inventory. It is evident that Ms.

Stewart’s job of searching for and gathering together possibly relevant documents for review by their counsel in this proceeding must have been daunting in the extreme. Nonetheless, she swears that she is “reasonably confident that the Child Welfare Defendants have located and produced all relevant and material client-based records concerning Mr. K”.

She is less certain however, about whether the Defendants have been able to produce what she terms “non-client based” documents, being administrative and operational records of the Department although she outlines at paragraph 12 of her April 23, 2003 affidavit, what information and documents she believes would be sufficient to provide the Plaintiff and the Court with what is necessary and relevant in this case. [ 40 ] In that application, Mr. Lee, as counsel for Mr.

K, took issue with the completeness of the Affidavit of Records. [ 41 ] He has since raised this matter as part of the “89 paragraphs” relating to alleged government misconduct in its defence of various actions against Child Welfare. [ 42 ] Much of his concern is described in the introduction to my decision LC v Alberta , 2014 ABQB 557 . In that case, Mr. Lee was applying for leave to use records produced in other actions involving Child Welfare. Ms. Stewart was the deponent of the Government’s Affidavit of Records in the TL failure to sue litigation (Action No 0403 12898). Ms.

Stewart was a defendant in VB v Alberta (Action No 0403 09593) and in CM v Kennedy , Action No 0303 09693. In the latter action, I dismissed an application to have Mr. Lee removed as counsel for the child Plaintiff because of an alleged conflict of interest by him acting for both the parent and child. I concluded that the application was premature, and that it was in any event moot because Mr.

Lee had since ceased to act on the matter ( CM v Kennedy , 2014 ABQB 590 ). [ 43 ] In LC v Alberta , 2014 ABQB 557 , I described some of the related actions at para 28: [28] The lawsuits from which the documents and transcripts referred to in Ms. Orwaard’s affidavit of December 4, 2013 originate are the Labonte class proceeding, Action No. 0403 12898, Ms. M., Ms. E., Ms. R. and Ms. J. v HMTQ , Action No. 9803 09943, Mr. K. v HMTQ et al , Action No. 0103 12438, Mr. D. v.

HMTQ , Action No. 0203 05912, TW v Alberta (Edmonton and Area Child & Family Services Region 6) , Action No. 0803 08196 and VB et al v Alberta (Minister of Children’s Services) , Action No. 0403 09593. [ 44 ] That decision arose in the context of Mr. Lee’s application to amend the pleadings in this action.

I noted at paras 12 and 13: [12] On December 12, in advance of the Rule 5.33 application, the Plaintiff filed a Brief which included 89 paragraphs relating to the claim of abuse of public office as well as to include the Public Trustee as a defendant relating to those and other allegations of breach of duty. [13] The 89 paragraphs were put forward as particulars of abuse of public office, apparently in response to the absence of agreement by the Public Trustee to be content with the existing allegations in the statement of claim and following a letter from the Public Trustee regarding particulars of abuse of public office. [ 45 ] I observed at para 74: [74] In this case, the 89 paragraphs are strongly worded, and allege serious misconduct, including contempt of court, on the part of various government lawyers and employees.

The identities of the lawyers and employees involved are not disclosed, but it is possible through some detective work to identify some of them. If such claims were made at trial and were unsuccessful, it would not be surprising to have an enhanced cost award against the Plaintiffs because of the serious attack on these people and their professional reputations. That is, of course, an issue to be considered on the underlying cost application. [ 46 ] Many of the expressed concerns involve a memo I described in paras 111-114:

[111] The next is a memo dated October 7, 1999 from Sharon Heron, then Director of Child Welfare to new regional directors in the newly-reorganized Child Welfare department. In the memo, she discusses the responsibility of regional directors to consider suing on behalf of children in care who are harmed by caregivers. The memo refers to legal advice without describing it, and warns the regional directors to exercise caution in this area. The government has claimed privilege on any of the underlying legal advice and documentation relating to the legal advice. [112] Mr.

Lee deposes that he did not learn of this memo until 2010 in cross-examinations i n the TL Class Proceeding. At that stage, he learned that there was an agreement or policy that Child Welfare would sue for children in care, not the Public Trustee. Cross- examination in 2012 of Bill Meade, a former Director of Child Welfare, suggested that no steps were taken (at least by him) to implement this policy. [113] In June, 2000, Jackie Stewart (an employee in Child Welfare’s Litigation Support Department) met with Bob Rechner (then Children’s Advocate) where Mr.

Rechner expressed concerns that Child Welfare was not suing on behalf of children in care. Mr. Rechner noted at the meeting that “Government employees are in a conflict to assist a child in filing a claim against the Crown. There is no avenue for them to receive compensation from the government.” [114] Ms. Stewart followed up on these concerns with Alberta Justice, who provided information to her on the subject (not disclosed because of solicitor and client privilege). [ 47 ] I described the arguments in favour of the 89 paragraphs in the following paragraphs: [125] He (Mr.

Lee) notes that despite Ritter J’s order in early 2002, the government failed to disclose the communications between the Public Trustee (Mr. Klinck) and the Children’s Guardian (Mr. Sohn) in September, 1985, Mr. Kelly’s memo of October, 1986, the 1987 policy that Child Welfare and not the Public Trustee would consider suing for children in care, Ms. Heron’s October, 1999 memo to senior Child Welfare authorities concerning the “possible need to sue the Department” for children in care, and the June, 2000 discussions involving Ms.

Stewart investigating the Children’s Guardian’s concerns that there was no avenue for children in care to get compensation from the government and that government employees were in a conflict in this area. [126] Mr. Lee deposes that when the Law Society dismissed most of the complaints against him, the committee commented that his concerns over production were “not unfounded”. [127] Mr. Lee alleges that Child Welfare has a particular animus against him, referencing a letter from an organization reliant on government funding to the effect that their funding was threatened if Mr.

Lee was allowed to speak at a conference in 2001. [128] Along with information received from Baldwin Reichwein, a director of Child Welfare in the early 1980s and a long time senior employee of Child Welfare who consults with Mr. Lee on child welfare matters, Mr. Lee believes that these records are the “smoking guns” in the case. [129] Mr.

Lee believes that employees within Child Welfare have deliberately withheld relevant documents and policy information from plaintiffs in previous litigation, including the lawsuits referenced above. [130] In particular, he relies on these documents and the information about policy to support the pleadings in 89oo to 89ffff. [ 48 ] I appended the “89 paragraphs” to my decision in LC v Alberta , 2015 ABQB 84 (which was a decision on costs). [ 49 ] As I understand it, the 89 paragraphs as referenced above form the basis for the conspiracy theory Mr.

Lee puts forward that the Alberta Government, including Child Welfare, the Public Trustee, the OYCA, and Alberta Justice have long conspired to thwart children harmed in government care from seeking remedies against the Government for their damages. [ 50 ] It is clear that Ms. Stewart has been a long-time foe of Mr. Lee’s in a number of his lawsuits against Child Welfare. Her role is relevant only to the claims in LC that the Government has long conspired to hide documents and conceal issues around their failure to sue for wrongs committed against children in care. Mr.

Lee pulled no punches in the 89 paragraphs, alleging fraudulent concealment on the part of the staff of the Public Trustee and the staff of HMTQ. [ 51 ] There is no suggestion in any of the numerous lawsuits commenced by Mr. Lee against Child Welfare or the Public Trustee that the OCYA, or its predecessor the Children’s Advocate, committed any wrongs. Indeed, Mr. Lee has repeatedly relied on reports from The Children’s Advocate reports in 2001-2002 in which the Children’s Advocate Robert Rechner was highly critical of the Government for its treatment of children in government care. Only since learning of Ms.

Stewart’s employment by the OCYA has Mr. Lee suggested that any wrongs were committed by the OCYA or that the OCYA is somehow adverse in interest to LC or EMP or any of the child or adult class. [ 52 ] Mr. Lee (with Mr. Tinkler’s assistance) referred to a July 2016 report from the OCYA (LC v Alberta , 2016 ABQB 512 ) in the context of EMP’s application for advance costs. [ 53 ] When Mr. Lee’s allegations of a conflict of interest on Mr. Tinkler’s part were first raised, the Dentons connection with the OCYA was not known. When that connection was learned of by Mr.

Lee and raised at a case management conference, Mr. Lee was surprised that I did not find that to be an obvious conflict that should result in Mr. Tinkler’s removal and that I instead required the application to proceed in a formal way with affidavits, cross-examinations and written briefs. I directed Mr. Tinkler’s application to remove Mr. Lee in the same fashion. [ 54 ] As this application has been delayed for a number of reasons, and most recently by the Covid pandemic this fall, Mr. Lee suggested that both this application and Mr. Tinkler’s application be stayed.

He argued that because EMP will soon turn 18, these disqualification applications will then become moot. That was a practical suggestion, but was rejected by Mr. Tinkler on the basis that these applications raise important issues, and that while his role as EMP’s litigation representative may end through the passage of time

in February 2021, it is not clear that his role in the action may not end at that time. Mr. Tinkler indicated that he may get instructions to seek to replace EMP as litigation representative for the child class. I have no idea where he might get such instructions and caution that might be in conflict with his duty to the minor whom he represents. [ 55 ] I agree that the applications raise important issues and agreed that they should proceed. [ 56 ] It is clear from the filed materials that Mr. Lee is mainly relying on the OCYA connection to seek Mr.

Tinkler’s removal. [ 57 ] This and the parallel application to remove Mr. Lee from involvement in this lawsuit have been case managed and arise in most case management conferences. [ 58 ] In early 2020, Mr. Lee applied on behalf of EMP for advance costs so that she could participate in the application to remove Mr. Tinkler as her litigation representative, amongst other remedies. In my decision ( 2020 ABQB 164 ), I noted at paras 46-48: [46] At paragraph 63, Mr.

Lee states: To be clear, the conflict of interest arises because EMP and the Child Class Member and all other victims of Child Welfare that will be affected by the EMP precedent (removing Mr.

Tinkler as EMP’s litigation representative because his firm acts for the Office of the Child Guardian ( sic )) are arguing that the Children’s Advocate, the Director of Child Welfare, the Public Trustee and Alberta Justice are all part of a Government wide systemic conspiracy to block children in the care of the Government from suing the Government (breach of fiduciary duty by failing to avoid a conflict of interest). [47] At paragraph 132, Mr.

Lee says: LC submits that since EMP’s lawsuit is about Child Welfare, the Public Trustee, the Children’s Advocate and Alberta Justice conspiring to block the legal rights of victims of Child Welfare, the person directing the lawsuit must not have any connection to Child Welfare, the Public Trustee, the Children’s Advocate or Alberta Justice. [48] He submits “attacking the Children’s Advocate is good for EMP, but bad for the Children’s Advocate…EMP and the Child Class Members’ interest are in conflict with the interests of the Children’s Advocate.” [ 59 ] In support of this application, I would characterize Mr.

Lee’s brief as unusual. It begins with a “disclaimer” that it reflects a “world view held by (LC) that the governmental system that she is litigating against and the legal system in which she is litigating in is discriminatory against (EMP) based on colonial views that are prejudiced against children, minorities and individuals without power.” [ 60 ] The brief also focuses on the Truth and Reconciliation Report and frequently references racism, sexism and exploitation of the poor. [ 61 ] Mr. Lee appears to suggest that my appointment of Mr.

Tinkler as EMP’s litigation representative instead of appointing an Indigenous lawyer with knowledge of Indigenous issues and Child Welfare law was racially motivated. [ 62 ] Mr. Lee complains that before he recommended that Mr. Tinkler be appointed as EMP’s litigation representative, Mr. Tinkler did not advise him that his firm, Dentons LLP, (then Fraser Milner Casgrain LLP) acted for the Children’s Advocate. Mr. Lee also complains that Mr. Tinkler did not advise him that he was fostering two Indigenous children. [ 63 ] He says that if Mr.

Tinkler had advised of those facts, LC (EMP’s mother) would not have agreed to his appointment. Mr. Lee says that at that time, LC was not aware that Jackie Stewart “who filed an incomplete Affidavit of Records and given inaccurate testimony under oath” had move from Child Welfare to a senior position in the Office of the Child and Youth Advocate. [ 64 ] Mr. Lee breaks his brief into two parts; the first being “Why does LC want to remove Mr. Tinkler as the litigation representative of her daughter; and “Why should the court remove Mr.

Tinkler as EMP’s litigation representative? [ 65 ] He describes the class action lawsuit as being about: The longstanding, widespread systemic failure of the Alberta government, the legal system and the court system to protect the rights of foster children when those rights are violated. [ 66 ] The brief is obviously written for an audience outside the Court. The lawsuit is not about widespread systemic failures. It is not about the legal system or the court system. It is about Child Welfare failing to file care plans for children subject to a Temporary Guardianship Order, and the consequences of that failure.

It is about children who remained in Government care after a Temporary Guardianship Order expired because of Child Welfare’s failure to file a care plan in a timely fashion. It is about damage claims by those children and their parents or guardians because the children were kept in care and potentially kept from their parents or guardians after the expiry of a Temporary Guardianship Order.

And it is about the failure of the Director of Child Welfare to sue itself on behalf of affected children and parents or guardians for their failure to file timely care plans. [ 67 ] As a result of the Court of Appeal decision at 2017 ABCA 284 , the Class members are limited to impacted children and parents and guardians between 2002 and 2004. The Court held at paragraphs 27 to 30: [27] Within the period between February 21, 2002 and November 1, 2004, the common issue raises the exercise of unlawful authority and the common questions ask what flows from the exercise of that unlawful authority.

Regardless of whether the Relative class has a legal interest in the outcome of certain of the common issues relative to the Child class, the factual matrix that will be relied on to prove the various causes of action will be the same. The analysis for each class begins with the allegation that the appellants exercised unlawful authority over the Child class members and assesses the appellants’ liability for what they did or did not do thereafter. In that sense, the claims of the Relative class members are derived from those of the Child class members.

[28] For the period before February 21, 2002 and after November 1, 2004, the unlawful authority that connects the class members’ claims and that represents a significant ingredient of each claim will be arguably problematic. The constitutional validity of the amending legislation is a threshold question for the members of the class in the period prior to February 21, 2002.

The members of the class in the period between February 21, 2002 and November 1, 2004 have no interest in that issue and its resolution does nothing to advance the claims of those individuals; in fact, it will necessarily delay the resolution of their claims until the constitutional question is resolved. [29] Similarly, for the concurrent planning period following November 1, 2004, the nature of the appellants’ authority in respect of each member of the Child class will be a substantial ingredient in the claims they advance and, as such, the conduct of the Relative class members will be germane.

Again, none of the class members for the period February 21, 2002 to November 1, 2004 have any interest in questions pertaining to the lawfulness of the appellants’ authority given that, for them, the question has already been definitively answered by this court in TS.

Accordingly, determining the constitutional question will do nothing to advance the claims of either the Child or Relative class members in that period. [30] Respectfully, to the extent the case management judge concluded there were common issues among the members of the Child and Relative class members outside the period between February 21, 2002 and November 1, 2004, he committed an overriding and palpable error that is reviewable by this Court. [ 68 ] Mr.

Lee describes “the other side” as those “who pose as obstacles to acknowledging, respecting and recognizing the rights of EMP and the child class members: being: Child Welfare; The Alberta Government; Alberta Justice; The Public Trustee; The Children’s Advocate; Jackie Stewart; Phil Tinkler; Lawyers; and The Courts. [ 69 ] However, this is a lawsuit against Child Welfare. LC abandoned an attempt to add the Public Trustee to this action in 2015. There has never been an attempt to add the Office of the Children’s Advocate or the OYCA to this lawsuit, or Alberta Justice, or any individuals.

The action was certified as a class proceeding only against the Director of Child Welfare. [ 70 ] What Mr. Lee appears to be doing, or wanting to do, is to amend the lawsuit post-certification to add in claims that were not certified as having common issues, or being related to the common issues that were certified. [ 71 ] The tie-in with the Public Trustee is alleged to be that the Public Trustee had the power to help “foster children under PGOs (Permanent Guardianship Orders) to sue” but they did nothing. The Public Trustee is not a defendant, and this lawsuit is not about foster children under PGOs.

The wrongs alleged in this case were to children under TGOs (Temporary Guardianship Orders). [ 72 ] The Children’s Advocate is alleged to have been “yet another governmental department that had and has a responsibility to speak for children, yet the Children’s Advocate has also stood silently by while Mr. Lee has tried to enforce foster children’s rights”. This suggestion has only arisen since Mr.

Lee learned of Dentons’ connection to the OCYA. [ 73 ] The thrust of this allegation, along with the 89 paragraphs, is that there is a government-wide conspiracy to prevent children harmed while in government care, to get the compensation they are entitled to. [ 74 ] Mr. Lee alleges that the Children’s Advocate provides lawyers to foster children through the Legal Representation for Children and Youth department which was run by Jackie Stewart.

He says “it is no surprise that the Children’s Advocate will not help EMP and the child class members sue Child Welfare when a former employee of Child Welfare responsible for defending Child Welfare from lawsuits is in charge of appointing lawyers for foster children.” [ 75 ] He goes on to say that “the Children’s Advocate is another governmental department that LC would expect would help EMP and the child class members, but ironically does the exact opposite.” Mr.

Lee continues “LC submits that it is inexplicable how Jackie Stewart could avoid her fiduciary duty to advocate for foster children’s legal rights and fail to correct her own inaccurate Affidavit of Records and testimony under oath in the TW lawsuit. The only reasonable explanation would appear to be that Jackie Stewart and the Children’s Advocate are deliberately not advocating for EMP, the Child Class Members and all foster children who have legal claims against the Alberta Government.” [ 76 ] Mr.

Lee concludes: “Jackie Stewart and the Children’s Advocate appear to be hostile to EMP and foster children’s legal rights. Silence is complicity.” [ 77 ] The tie-in with this litigation is that when Mr. Lee was looking for legal counsel for EMP and the potential child class when he was unwilling to continue himself without being paid and before he was successful in getting Okanagan costs, the Children’s

Advocate did nothing to assist EMP and the potential Child Class get legal representation or provide legal representation for them through the advocacy program Jackie Stewart apparently ran. [ 78 ] When approaching these concerns in the context of Mr. Tinkler’s alleged conflict of interest, Mr. Lee says that “with Children’s Advocate’s conflicts of interest to the rights of foster children described above, there is no possible way that Dentons or Mr. Tinkler should be anywhere near EMP’s case.

EMP and the child class members will want to know why the Children’s Advocate, Child Welfare, Alberta Justice, and the Public Trustee never looked into the kidnapping of foster children based on invalid Court orders.” [ 79 ] What his brief does not do is show how the fact that a former employee of Child Welfare who works for OCYA creates a conflict of interest for Mr. Tinkler. While Ms.

Stewart is or was a defendant in various claims brought against HMTQ and Child Welfare, and she played an important role for HMTQ and Child Welfare in managing litigation against Child Welfare, none of the actions complained of occurred while she was working for OCYA (or its predecessor the Office of the Children’s Advocate). And none of her actions were on behalf of OCYA or in her capacity as an employee of OCYA. [ 80 ] Mr. Lee supposes that as EMP’s litigation representative, Mr.

Tinkler “has the ability to make decisions to the legal counsel as to how to prosecute the action, including what witnesses to question that could be harmful to his firm’s client, the Children’s Advocate. Mr. Tinkler could make decisions as litigation representative to go easy on the Children’s Advocate.” [ 81 ] He says that “in a lawsuit that alleges a breach of fiduciary duty by Child Welfare, Alberta Justice, the Public Trustee and the Children’s Advocate, it would be improper to appoint a lawyer from a law firm that is legal counsel to one of those organizations.” [ 82 ] Mr. Lee then attacks Mr.

Tinkler for failing to disclose that he has two Indigenous foster children, saying that “it is an afront to all of the Indigenous class members for a white man to foster Indigenous foster children” and “that Indigenous foster children ought to be raised by Indigenous families”. [ 83 ] He complains that Mr. Tinkler (and now Ms. Boscariol) has had almost no contact with EMP, but ignores the fact that EMP has refused to communicate with them. The evidence is that they tried to make contact, but were rebuffed by EMP. [ 84 ] Later in the brief, Mr.

Lee deals with non-disclosure by the Government of information that would allow potential class members to learn, from government and court records, whether they are members of one of the certified classes; namely, whether and when a care plan was filed while they were in TGO status. He suggests that there are “hundreds of potential Representative Plaintiffs who could take over the Class Action from EMP” and allow an actual Child Class Member who has turned 18 to make decisions for the Class Action.

He appears to suggest that I denied that when I concluded in 2011 that EMP should have a litigation representative other than her mother because of potential conflicts between the two classes. He describes that as “another failure in the battle to proclaim the importance of foster children and their rights.” [ 85 ] Mr. Lee’s brief next turns to the Courts. He says “government departments are only the tip of the iceberg when it comes to recognizing or rejecting EMP and the child class members’ legal rights. The actual gatekeeper of foster children’s rights is not the government, it is the courts”.

I will not deal with his complaints about various Provincial Court decisions, decisions in other cases against Child Welfare, the Court of Appeal decision in this case, or “a racial group’s collective prejudice (being) backed by the power of legal authority and institutional control” and racism. [ 86 ] As well, Mr. Lee says “The Court has already ordered Child Welfare to pay Ms. Boscariol’s fees and not to pay Mr. Lee’s fees (in relation to the recent application for advance costs for EMP to apply for separate representation on this application).

LC submits that this is a reflection of the Court’s devaluing EMP’s rights and a potential foreshadowing of the Court’s decision on this application.” [ 87 ] He continues: ...This decision to allow Mr. Tinkler to retain new counsel and to Order Child Welfare to pay Ms. Boscariol is the antithesis of her purposes in starting the lawsuit. LC wanted to proclaim that minorities, women and those from lower socio-economic status are important enough. LC submits that the Court’s preference in Mr. Tinkler, a white, affluent man over, the wishes of EMP, a poor indigenous girl reinforced the discriminatory bias that Mr.

Tinkler’s views are more important that EMP’s views. After all, this is EMP’s lawsuit and EMP is almost 18.” [ 88 ] Mr. Lee says that the choice of Mr. Tinkler over Denise Lightning (as EMP’s litigation representative) in 2011 “reinforced her view that the Court holds colonial biases”. He describes that as “an insulting rebuke to LC’s desire to prove that she, EMP and others that look like them and live like them are important enough and good enough.” [ 89 ] Mr. Lee concludes with an analysis of other cases that “show bias against Indigenous foster children”.

In particular, he references the TL class proceeding and his ultimate removal as counsel for the Representative Plaintiffs. [ 90 ] As for why Mr. Tinkler should be removed, Mr. Lee suggests a number of things beyond the alleged conflict of interest: 1. That EMP does not want him or Ms. Boscariol involved in the lawsuit on her behalf; 2. That EMP is nearly 18 and will no longer need a litigation representative; 3. That in the meantime, LC or EMP’s older sister could be her litigation representative; 4.

That a replacement litigation representative would not need to be paid as there are people such as LC and EMP’s sister who would not require payment; 5. That the Child Class members may have a claim against the Children’s Advocate for failing to avoid a conflict of interest; and

6. That if Mr. Tinkler is permitted to continue to participate in this class action, there may be a number of class members who willchoose to opt out; Analysis [91] This is an application that turns entirely on its facts. There are no legal issues as the cases concerning conflicts of interestincluding MacDonald Estate v Martin, (SCC) and Canadian National Railway Co v McKercher, 2013 SCC 39. I donote one case that arose in a class proceeding: McKenna v Gammon Gold Inc, [2009] OJ 79 (ONSC). [92] There, the Defendants were subsidiaries of banks which had retained plaintiffs’ lawyers in unrelated proceedings.

Theyobjected to the plaintiffs’ lawyers on the basis that relationship constituted a conflict of interest and they should be removed as plaintiffs’counsel. [93] Lax J held at para 2: [2] In my view, Siskinds does not have a disqualifying conflict of interest. It has breached no contractual retainer. It is not in breach ofthe duty of confidentiality as articulated in MacDonald Estate v. Martin, (SCC), [1990] 3 S.C.R. 1235, [1990] S.C.J. No.41. It is not offside the "bright line test" proposed by Justice Binnie in R. v. Neil, 2002 SCC 70 , [2002] 3 S.C.R. 631, [2002]S.C.J.

No. 72 or determining the scope of the duty of loyalty. The underwriters and the banks are separate and sophisticated business andlegal entities that are individually governed and autonomous. The banks had no reasonable expectation that their subsidiaries would betreated as clients. On the facts of this case, there is no compelling reason to impose fiduciary obligations on Siskinds to preclude it fromrepresenting the plaintiff and the proposed class in an action against the underwriters as a result of having acted and continuing to act forthe banks in unrelated matters.

The motion to disqualify Siskinds is tactical and should be dismissed. [94] Little of Mr. Lee’s brief is relevant to the issues. It is mainly an advocacy document, advocating against racism, against theGovernment, Child Welfare, the Courts, and an affluent white man who has the temerity to foster Indigenous children. [95] As a starting point, all children under 18 require a litigation representative if they wish to pursue legal action. Thatrequirement applies universally regardless of ethnicity or intellectual ability.

An exceedingly bright and mature 17 ½ year old stillrequires a litigation representative to pursue litigation, just the same as does an infant or a less sophisticated young adult. [96] There is no requirement that a litigation representative be a family member. Normally, it is a family member who stepsforward. LC initially stepped forward for her daughter when she commenced this action for herself and the potential adult class. Whenthe matter came before me in 2010, Mr.

Lee was seeking the appointment of a litigation representative for LC, as she was then not ableto pursue the litigation for herself and effectively instruct counsel. LC expressed that she was unwilling or unable to continue to act asNext Friend or litigation representative for EMP. [97] It was obvious on the evidence at that time that EMP and the potential child class needed a litigation representative who wasable to effectively instruct counsel. Ms. Lightning was put forward as first choice. [98] In this application, Mr. Lee is trying to re-write history. Only Ms.

Lightning had stepped forward as being willing to act asEMP’s litigation representative, and she would only act as such if she was compensated at her regular hourly rate, and so long as she wasgranted immunity from liability for costs in the action. Mr. Lee represented to the Court that LC was not competent at that time tomanage the lawsuit. The application in 2010 was complicated by LC’s appointment of Ms. Lightning under a power of attorney and theissue as to whether she had the necessary capacity to grant a power of attorney.

The Crown’s position was that if LC was competentenough to grant a power of attorney, she was competent enough to continue to act as Next Friend or litigation representative. [99] Issues on LC’s capacity were adjourned, but the application for the appointment of a litigation representative for EMPproceeded. [100] The Crown opposed Ms. Lightning’s appointment on a number of grounds. A court appointment was required because of Ms.Lightning’s requests for payment and exemption from liability. [101] This was not a case of choosing Ms. Lighting over Mr. Tinkler. Only Ms. Lightning was put forward at the time.

My reasons fornot appointing her are clearly set out in my decision. They related to whether there may be conflicts of interests between the mother’sinterests and the daughter’s interests in the context of the action being a proposed class proceeding. Ms. Lightning had accepted herappointment as LC’s attorney under the Power of Attorney, and I noted that she thus owed a duty of loyalty to LC and was in a fiduciarycapacity to LC. I stated: [46] Here, the Crown does not argue that Ms. Lightning is not a suitable person to be next friend. L.C. has raised no objections toMs.

Lightning acting in this capacity and of course has appointed Ms. Lightning to be her attorney under a power of attorney. But sinceMs. Lightning has sought appointment by the Court (and seeks favourable terms from the Court), the Court must be satisfied that herappointment would be in E.M.P.’s best interests. [47] Ms. Lightning has no experience with class actions, although she does have experience with Child Welfare matters.

Herexperience with civil litigation and Charter litigation (which this action might best be described as) is unclear. [48] It appears clear that she is attorney for L.C. and as such owes a duty of loyalty to L.C. She is undoubtedly in a fiduciaryrelationship to L.C. L.C.’s interests and E.M.P.’s interests in the action and in the intended class action are not identical. E.M.P. is nowbeing put forward as the potential representative plaintiff for the “failure to file” child plaintiffs. It is not clear to me that it is in E.M.P.’s

best interests to head up a class action, or be involved in an action with her mother and potentially her siblings’ claims, as opposed to having her own, stand-alone damage action, or being in a child-only class action. [49] There are potential conflict issues between E.M.P. and her mother which make it important that E.M.P. have an independent next friend or litigation representative. I realize that parents are often next friends for their children in actions where the parents may be plaintiffs in their own right.

But those are situations where the parents will self-appoint and not look to the Courts to make the appointment. Where the Court is required to make the appointment, different considerations apply. Appointing a next friend or litigation representative who is already a parent’s attorney under a power of attorney may put the next friend or litigation representative in an impossible position if there is a conflict between the parent’s and the child’s interests. [50] As a result, while I conclude that E.M.P. requires a next friend/litigation representative, that person should not be Ms. Lightning.

This decision has nothing to do with Ms. Lightning; rather, it is founded on concerns for potential conflicts between the mother’s interests and the daughter’s interests. The appointee should make decisions for E.M.P. based solely on E.M.P.’s interests without reference to L.C.’s or anyone else’s interests. [ 102 ] The other thing to keep in mind during my analysis is that it was Mr. Lee who searched out and found Mr. Tinkler and recommended his appointment as EMP’s litigation representative to me. I did not choose between Ms. Lightning and Mr. Tinkler. I concluded that because Ms.

Lightning was acting under a power of attorney from LC and owed LC fiduciary duties she should not be the one to act for EMP and the potential child class. Following that decision, Mr. Lee apparently concluded that he could accept instructions from LC and Ms. Lighting was no longer necessary to assist LC under the Power of Attorney. But by then, Mr. Lee had found Mr. Tinkler and had recommended Mr. Tinkler to the Court as an appropriate litigation representative with class proceedings experience. [ 103 ] Mr. Lee then worked with Mr.

Tinkler for some six years before their relationship disintegrated over the certification appeal process. During that interval, Mr. Tinkler entered into a retainer agreement with Mr. Lee, supported his application to add the Public Trustee as a defendant, supported his application to amend the Statement of Claim to include the “89 paragraphs” and supported his fight with Child Welfare to seek solicitor and client costs against them for characterizing his application to add the 89 paragraphs as frivolous and vexatious. [ 104 ] Mr. Lee could not have found a more supportive client than Mr.

Tinkler until the Director partially succeeded in its appeal of my certification decision in 2017. The story around this is found in Mr. Tinkler’s application to have Mr. Lee removed as LC’s counsel in the certified class action – the parallel application to this one. [ 105 ] In short, Mr. Lee missed filing deadlines for EMP to file her factum responding to the Director’s appeal of my certification decision. That was resolved to some extent and there was a truce between Mr. Lee and Mr. Tinkler and the appeal was then responded to by Lerners LLP on behalf of both LC and EMP. Mr. Lee and Mr.

Tinkler had successfully obtained advance costs for EMP to respond to the appeal. [ 106 ] After the Director’s partial success on the certification appeal, Mr. Lee and Mr. Tinkler disagreed as to who should seek leave to appeal the Court of Appeal decision to the Supreme Court of Canada: counsel who had argued the matter in the Court of Appeal, or Mr. Lee. Mr. Lee was insistent on making the leave application for both LC and EMP himself. The Court of Appeal had given EMP advance costs to make the leave application. Mr.

Tinkler wanted to proceed expeditiously with the application on the basis that Lerners would use the advance costs to apply for both EMP and LC. Mr. Lee wanted to use the advance costs so he could apply for both EMP and LC. Ultimately, after Mr. Tinkler had arranged with Lerners LLP, to seek leave for both EMP and LC, Mr. Lee refused to allow Lerners to do so and also refused to consent to Lerners applying for EMP only, alleging that they were in a conflict of interest if they did so. The only conflict was Mr.

Lee’s interest in getting the advance costs for himself. [ 107 ] Lerners withdrew from the matter, leaving Mr. Tinkler to make the application for EMP himself. Essentially, Mr. Lee abandoned EMP and held Mr. Tinkler hostage to his demands that he be allowed to represent both EMP and LC using the advance costs awarded for EMP. [ 108 ] The Supreme Court of Canada ultimately dismissed both leave applications. [ 109 ] During this fight, Mr. Tinkler dismissed Mr. Lee as EMP’s counsel. Subsequently, Mr. Tinkler retained Ms. Boscariol and her Vancouver law firm to represent EMP. It is obvious that through LC’s and Mr.

Lee’s influence, EMP has refused to have anything to do with Mr. Tinkler and Ms. Boscariol, and EMP has emphatically expressed her wish to be represented by Mr. Lee. It is clear that as soon as EMP is 18 and no longer needs a litigation representative, she will dismiss Ms. Boscariol and retain Mr. Lee to represent her. [ 110 ] In retaliation to Mr. Tinkler’s application, Mr. Lee seeks to have Mr. Tinkler removed as EMP’s litigation representative on the bases enumerated above. The only allegation of substance that I need to deal with is the allegation that Mr.

Tinkler is in a conflict of interest because of his firm’s representation of the OCYA. [ 111 ] As for the other grounds raised, I will only observe that I found the submissions in Mr. Lee’s brief to be mainly irrelevant, unusually inflammatory, and offensive. He appears intent on having me remove myself from my role as case manager, alleging that I am racist and have prejudged this dismissal application. I will let my record as described in the innumerable written decisions in this matter speak for themselves. [ 112 ] During my case management, Mr.

Lee was successful in obtaining advance costs to assist him to finalize the pleadings in this class proceeding. He was successful in having the action certified as a class proceeding for two wide classes, spanning decades. He was

successful in obtaining advance costs for EMP to pursue the class proceeding on her behalf and as representative plaintiff. His main lack of success before me related to his wasteful application for solicitor and client costs against Child Welfare after he abandoned his attempt to add the Public Trustee and raise the 89 paragraph bad faith and conspiracy allegations against Child Welfare, as well as in setting his fees under the advance costs order. [ 113 ] He has made a highly offensive allegation against Mr. Tinkler because Mr. Tinkler is fostering two Indigenous children. I will not let that stand unanswered.

I do not accept for one moment that Mr. Lee is only repeating allegations or opinions from his client. A lawyer should not be a mere mouthpiece, and has no business spewing garbage and then claiming that the garbage comes from his client’s mouth, not his. [ 114 ] Those allegations are amongst the most shameful I have heard in my years on the Court. [ 115 ] There is no substance to any complaint that Mr. Tinkler and Dentons are in a conflict of interest because of Mr. Tinkler’s representation of EMP and Dentons’ representation of the OCYA.

This is an invented conflict and it has no substance. [ 116 ] There is only one defendant in this class proceeding: Child Welfare. As far as I know, the OCYA and its predecessor are not defendants in any of the proceedings brought by Mr. Lee on behalf of any client alleging wrongdoing while in the care of Child Welfare. Successive Child Advocates have been praised by Mr. Lee for their criticisms of Child Welfare and the Alberta Government. I can understand why he wants to call former employees, and in particular Mr. Reshner as Mr.

Reshner provided him with valuable information concerning Child Welfare policy surrounding suing on behalf of children in government care. [ 117 ] The causes of action in this lawsuit arose between 2002 and 2004. At that time, Jackie Stewart worked for Child Welfare. The fact that she worked on other lawsuits while she was employed by Child Welfare is essentially irrelevant. Her involvement as a defendant in lawsuits against Child Welfare relate to her work for Child Welfare. She ceased to work for Child Welfare in approximately 2011.

There is no indication that she ever had anything to do with this lawsuit. [ 118 ] After 2011, she worked for the OCYA and its predecessor. The information presented is that she was involved in providing legal representation for children, not just children in government care, through the OCYA’s child representation program. There is no information before me that she was approached to provide representation for EMP at any time. [ 119 ] There was no need to look for representation for EMP until Mr. Lee decided that he could no longer take on lawsuits such as this one without being paid on an ongoing basis.

Hence his applications for advance costs. Even if he was turned down by the OCYA (which is not in evidence) his application for advance costs was successful. So, I am left wondering what his complaint is all about. [ 120 ] He suggests that he may sue the OCYA for failing to provide legal representation for children such as EMP. There is no evidence of anyone who approached OCYA and was turned down, and no evidence of a duty to do so. Mr. Lee’s speculation that there might be a cause of action against OCYA for failing to provide representation is not enough to create a conflict, especially since the actions Mr.

Lee relies on were commenced long ago: this one in 2007, TW in 2008, Mr. EK in 2003, VB in 2004, and Thomlinson in 2001. [ 121 ] There is only baseless speculation that anything Jackie Stewart did while working for the OCYA impacted on EMP. There is no claim against her or the OCYA in this action. There is also only speculation that there is a government-wide conspiracy against victims of Child Welfare, which includes the OYCA as a conspirator.

On the evidence before me, the suggestion that the OCYA or its predecessor is involved in any such conspiracy is fanciful and is raised only in support of this application. [ 122 ] Mr. Lee’s submission that anyone who acts for the Government of Alberta is conflicted in representing someone in an action against the Government of Alberta is fundamentally flawed. The Government might raise a conflict in such circumstances, but I cannot imagine that there would be any merit to any such claim in circumstances like those here. The OCYA is independent and reports to the Legislature: see legislation.

The advocates themselves are appointed by the Lieutenant-Governor in Council, not the Minster responsible for Child Welfare. [ 123 ] The notion that Mr. Tinkler might throw the case because of his firm’s representation of the OCYA is without merit. [ 124 ] There is simply insufficient connection between Jackie Stewart and the OCYA and this case to give any credibility to suggestions of conflict of interest. Conclusions [ 125 ] I conclude that there is no basis to remove Mr. Tinkler as EMP’s litigation representative. LC’s application to have Mr.

Tinkler removed is dismissed. [ 126 ] I recognize that this decision will soon be rendered moot when EMP turns 18 in a matter of weeks. This lawsuit has been dormant for some time and there is no likelihood that it will become active any time soon. If Mr. Lee is not removed, he plans to apply for advance costs on behalf of LC and the Parent and Guardian Class before any steps are taken in the action itself. Assuming EMP wants Ms. Boscariol removed as her lawyer and the lawyer for the Child Class, that will likely involve an application, and if she is successful in having Ms.

Boscariol removed, she will have to bring an application to have new counsel approved. At that stage, I do not know if other members of the Child Class will emerge and have different viewpoints. [ 127 ] In any event, none of that is before me. But it would be unfair and improper to leave this application to have Mr. Tinkler removed not dealt with, as it has been brought on spurious grounds. [ 128 ] Mr. Lee sought to have Mr. Tinkler replaced by CC, EMP’s older sister. The time has passed for a replacement litigation representative, even if one was warranted.

I need not rule on her suitability as a litigation representative.

[ 129 ] The application to have Mr. Tinkler removed as litigation representative is dismissed. There is no basis to consider CC’s application to replace him. Comments Identifying Clients [ 130 ] Hindsight can at least inform future conduct. In retrospect, it would have been preferable for Mr. Tinkler to have told Mr. Lee about the Children’s Advocate – FMC connection in April 2011. Mr. Lee and LC would then have had an opportunity to consider whether that connection caused any problems for them.

I recognize the ethical consideration of a lawyer not disclosing who their clients are to third parties (at least without the client’s consent). The point is not expressly before me, but it seems to me that the interest being protected is one of confidentiality or secrecy. A person may not want anyone else knowing they have consulted a criminal lawyer, or a family lawyer, for fear of it becoming known that they are facing criminal proceedings or are having matrimonial problems. But I fail to see that the relationship between a government entity and a large pan-Canadian law firm is a great secret.

As soon as a pleading is filed or an appearance is entered, the retainer becomes a matter of public record. [ 131 ] A hard and fast rule that the identity of a client will not be disclosed is convenient, and likely unassailable ethically, but as can be seen from this application, it can cause mischief. I would encourage lawyers to apply ethical rules within the context they arise. An issue such as this is not as clear-cut as dipping into trust funds, lying to clients or the court, or failing to respond to the Law Society’s inquiries.

Other issues [ 132 ] I have spent some considerable time on the background and previous rulings in this case, beyond what was strictly necessary to deal with Mr. Lee’s application to remove Mr. Tinkler. Nevertheless, I think it is important to deal with several of the issues raised by Mr. Lee in this and his application to remove Mr. Tinkler as EMP’s litigation representative, even though they have little bearing on my decision to remove Mr. Tinkler. The issues I wish to comment specifically on are those of racism, distrust, and the Court being the main problem with access to justice. Racism [ 133 ] Mr.

Lee has made outrageous and completely unfounded allegation about racism against Mr. Tinkler because Mr. Tinkler is fostering Indigenous children. That went far beyond any acceptable advocacy. [ 134 ] Mr. Lee accuses me of racism because I did not appoint Denise Lightning as EMP’s litigation representative, as well as because of my refusal to require Mr. Tinkler to proceed with an application to remove Mr. Lee as Child Class counsel. I will not comment further as judges can only speak through their decisions. My decisions are all available on CanLII.

Case management proceeds in open court and transcripts can be obtained. Mr. Lee’s references to my role as trial judge in R v Barton , 2019 SCC 33 has no other potential relevance to this case other than to insinuate racism. [ 135 ] He includes the Courts as a whole in this theme, concluding this

section of his brief with quotes from an

article White Fragility , by Robin Diangelo: When a racial group’s collective prejudice is backed by the power of legal authority and institutional control, it is transformed into racism…Similarly, racism-like sexism and other forms of oppression-occurs when a racial group’s prejudice is backed by legal authority and institutional control. (at pages 20-21) [ 136 ] Mr. Lee quotes an

article A Space for Race, Decoding Racism, Multiculturalism, and Post-Colonialism in the Quest for Belonging in Canada and Beyond by Kathy Hogarth and Wendy L. Fletcher, which analogizes child welfare to residential schools. He references the Final Report of the Truth and Reconciliation Commission, the Final Report of the Murdered and Missing Women and Girls Inquiry, as well as the Alberta Law Society’s recent requirement for all lawyers to take Indigenous education. [ 137 ] Neither of the classes in this action are defined by their race.

There are undoubtedly a large number of non-Indigenous members of the two classes. I have repeatedly said in case management that this class proceeding is not about race, it is about the Director failing to file timely care plans for children in care, regardless of their race or ancestry. While Indigenous children have been significantly over- represented in child welfare matters, they are not the only children who were apprehended from their parents and guardians, and were in care after the expiry their TGO because of the non-filing of a care plan.

Their situations are equally important in this lawsuit. [ 138 ] Mr. Lee appears to have chosen to run this litigation on the basis that the only plaintiffs who matter are the Indigenous ones. I question how that is in the interests of the non-Indigenous class members. There are only two classes of plaintiffs: children and adults. At this stage the pleadings make no differentiation on the basis of their race. Mr. Lee’s arguments in these applications obviously do. [ 139 ] Mr.

Lee also appears to be attempting to turn this class proceeding into one that will focus on racism, prejudice against Indigenous people and misconduct towards Indigenous people. If Mr. Lee wants to do so, he will have to apply for major amendments to the Statement of Claim in this matter. At present, this is a lawsuit about care plans. [ 140 ] If anyone has any different understanding of this lawsuit, they have been misinformed. Distrust [ 141 ] In his affidavit and brief, Mr. Lee makes numerous references to LC and other plaintiffs distrusting the legal system.

He analogizes Child Welfare apprehensions as “part of the process of genocide against Indigenous People, and references “Residential Schools Abuse, the 60s Scoop of Indigenous Children, Murdered and Missing Indigenous Women and Girls, and the Millennial Scoop”. He describes the “Elephant in the Room” as being his clients’ view that the Courts are blocking or hindering his efforts to try to advocate

for their legal rights. He describes the “real opponent” to his clients as the Court. He says that “I always argue that a child and family- oriented position.

In contrast, I believe that the Courts have frequently made decisions that favour the Government’s interests over the children’s interests.” [ 142 ] In his list of cases referenced in this area of his argument, he includes the staying of the Thomlinson class action, his removal from the TL class proceeding, the settlement approval in TL and the Court of Appeal’s denial of his application to appeal the settlement, the denial of advance costs to LC, my awarding costs against him personally in his application to recover solicitor and client costs from the Government, and the Court of Appeal’s decision to remove the 1985-2002 and 2004-2009 plaintiffs from this action. [ 143 ] He says “this is the elephant in the room and I believe that it must be addressed rather than ignored.” [ 144 ] To the extent that his clients have these views, I suspect that is because adverse decisions have been described to them as having been racist.

They would benefit from reading the decisions themselves. Thomlinson was not a class proceeding. It may have been the beginning or precursor of an intended one, but it was an application to be appointed a next friend to unnamed plaintiffs: the 439 children involved in investigations of maltreatment who were at the time receiving Child Welfare services. Some had remained in the care of their parents or guardians but had not been placed in Government care. Mr. Lee was somewhat successful on the application before Brooker J, but he and Mr.

Thomlinson chose to walk away from the lawsuit for fear that they might be liable for costs if they lost. [ 145 ] TL involved an application by Mr. Lee’s co-counsel in that proceeding to add additional class representatives, and to remove Mr. Lee as co-counsel. The case management judge added additional class members and removed Mr. Lee as counsel. That decision was upheld on appeal to the Court of Appeal: TL v Alberta , 2013 ABCA 211 . The Court of Appeal refusal to overturn the settlement in 2018, noted that Mr.

Lee had acknowledged that the class members had lost their right of appeal by the passage of time (the settlement being approved in January 2016 and the application being a year after the appeal period expired) thus it was for the sole benefit of RT, for whom the appeal was brought ( RT v TL , 2017 ABCA 69 ). [ 146 ] LC has never had an application for advance costs denied. In 2010, her application was adjourned because it was unclear whether she had the capacity to make such an application or to appoint Denise Lightning to act for her under a power of attorney.

That application was not re-scheduled before the certification application in 2016, partly because it was considered less pressing because Mr. Lee had obtained advance costs for EMP, and also because Mr. Lee considered the certification application as being more important at the time. Since certification in 2016, the progress of this action was stalled until the Supreme Court denied the Plaintiffs’ leave to appeal application in late 2018, and thereafter because of the in-fighting between Mr. Lee and Mr.

Tinkler. [ 147 ] My award of costs against Mr Lee personally in favour of the Government in LC v Alberta , 2015 ABQB 84 was because he brought an application for costs against the Government and lost that application. The ordinary rule in litigation is that the loser pays the winner’s costs. Costs were awarded against Mr. Lee personally, as his application was in the nature of personal justification and had nothing to do with LC and the Adult Class. I noted in that decision that the costs application by Mr.

Lee had delayed the progress of this litigation by at least a year. [ 148 ] How the Court of Appeal’s decision limiting the classes in this action can be described as racist or blocking his client’s rights or hindering their rights and being harmful to their legal rights is simply bizarre. Cases in that court turn on the law. Mr. Lee sought leave to appeal that decision to the Supreme Court of Canada on LC’s behalf, and lost. [ 149 ] It appears that the affidavit and brief were prepared for a different audience than the courts, perhaps the venues referenced in Ms.

Venne’s affidavit. [ 150 ] These comments may appear defensive. They are. Misinformation generally should be corrected. [ 151 ] Very little of these arguments has relevance to the real issues on this application and appear to be raised to deflect Mr. Lee’s misconduct over the leave application and to justify past losses in Court. Costs [ 152 ] As held in my concurrent decision on Mr. Tinkler’s application to have Mr. Lee removed as counsel in this litigation, since there has been divided success, no costs are appropriate. Each party will bear its own costs. Heard by written submissions.

Dated at the City of Edmonton, Alberta this 8th day of January, 2021. Robert A. Graesser J.C.Q.B.A. Appearances:

Anita Boscariol, Watson Goepel LLP for EMP by her litigation representative Philip Tinkler and Philip Tinkler Stephanie Bowes and Shelley J. MacDonald Alberta Justice and Solicitor General for the HMQ (took no position on application) Robert P. Lee, Victims Rights Law for LC and Robert P. Lee