Quinn v. British Columbia, 2017 BCSC 692

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Quinn v. British Columbia, 2017 BCSC 692 Date: 20170428 Docket: 14-0664 Registry: Victoria Between: Desmond Quinn, Pham Thi Trang as Guardian ad litem of Marion Quinn and Beth Quinn by the Guardian ad litem Desmond Quinn Plaintiffs And: Her Majesty the Queen in Right of the Province of British Columbia Defendant Corrected Judgment: The dates of hearing were corrected on the front page of this judgment on May 4, 2017 Before: The Honourable Madam Justice Dorgan Reasons for Judgment Counsel for the Plaintiffs: B.R.B. Morahan Counsel for the Defendant: D. R.

Suntjens and C. Drake Place and Date of Hearing: Victoria, B.C. September 13 - 15, 2016 Place and Date of Judgment: Victoria, B.C. April 28, 2017 I.

Introduction [ 1 ] The action concerns two children of the plaintiff parents who were removed from their parents’ care by the director pursuant to s. 30 of the Child, Family and Community Service Act (the “ CFCSA ”), R.S.B.C. 1996, c. 46, on February 24, 2012. [ 2 ] On February 19, 2014, the plaintiff parents (Quinn and Trang) and the two children by their guardian ad litem (their father) filed a notice of civil claim against the defendant Her Majesty the Queen in Right of the Province of British Columbia, as represented by the Minister of Children and Family Development (the “Province”).

On January 14, 2015, the plaintiffs filed an amended notice of civil claim. [ 3 ] Considering the proposed amendments to the plaintiffs’ notice of civil claim, the plaintiffs’ claim is essentially that the plaintiff parents’ rights under s. 7 of the Canadian Charter of Rights and Freedoms were infringed by the Province through the conduct of the director prior to the director’s decision to remove the children from the care of their parents and in the subsequent steps taken in the process of their apprehension.

The plaintiffs seek general damages for mental and emotional suffering flowing from the alleged breaches of their s. 7 Charter rights, they claim constitutional damages for breach of the plaintiffs’ Charter rights, special damages, and they seek a range of declaratory relief. [ 4 ] The Province submits that the plaintiff parents’ right to security of the person under s. 7 was engaged when the plaintiffs’ children were removed, and as such the only question to be determined is whether the removal was carried out in accordance with the principles of fundamental justice.

On this application to strike, the Province argues that the plaintiffs’ pleadings do not identify a single valid principle of fundamental justice and therefore the impugned pleadings should be struck and the proceedings dismissed. [ 5 ] The applications before the court are: 1) By the plaintiffs filed August 9, 2016 for leave to further amend their notice of civil claim, and an application filed January 7, 2015 that went by consent; and 2) By the Province, filed August 17, 2016 for a number of orders as set out in

Part 1, the major one being for an order to dismiss or in the alternative, to strike, the plaintiffs’ claim.

[ 6 ] It was agreed the application of the Province would be heard first, and that the Province’s application would proceed as though the plaintiffs’ proposed further amendments to the notice of claim had been granted. The Province adjourned generally the relief claimed in paras. 2, 3 and 4 of its notice of application. [ 7 ] The issue is simply this: should the plaintiffs be entitled to take the next steps in this action?

The Province seeks an order of dismissal arguing that the plaintiffs’ action amounts to an abuse of process or, in the alternative, that it should be struck as failing to disclose a reasonable cause of action and for being unnecessary and vexatious. [ 8 ] The application of the Province is brought pursuant to Rule 9-5(1) of the Supreme Court Civil Rules , B.C. Reg. 168/2009 which reads:

(1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that (

a) it discloses no reasonable claim or defence, as the case may be, (

b) it is unnecessary, scandalous, frivolous or vexatious, (

c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or (

d) it is otherwise an abuse of the process of the court, and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs. [ 9 ] As noted in the written argument of the Province at p. 6, para. 24: 24. The Province’s primary argument is that the Plaintiff Parents’ entire action is an abuse of process and ought to be dismissed pursuant to Rule 9-5(1)(d). In the alternative, the Province seeks to strike the Plaintiff Parents’

section 7 Charter claims for failing to disclose a reasonable claim or for being unnecessary or vexatious, and to dismiss their proceedings pursuant to Rule 9-5(1)(

a) or (b). [ 10 ] In Berthin v. Berthin , 2016 BCSC 2235 , Mr. Justice Johnston, at paras. 13-17, describes the process on a strike application as follows: [13] The test under Rule 9-5(1) for striking a pleading is well settled: “[a] claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action”: R. v. Imperial Tobacco Canada Ltd. , 2011 SCC 42 at para. 17 . While applications under Rule 9-5(1)(

a) do not permit resort to evidence, evidence is admissible for applications brought under Rules 9-5(1)(

b) to (d): Timberwolf Log Trading Ltd. v. British Columbia (Forests, Lands and Natural Resources Operations) , 2013 BCCA 24 at para. 20 . Further, if an amendment might salvage an otherwise questionable case on the pleadings, the court should permit the plaintiff an opportunity to amend as a condition of dismissing an application to strike the pleadings: Moses v.

Lower Nicola Indian Band , 2015 BCCA 61 at para. 41 . [14] In considering an application to strike pleadings on the ground that they disclose no reasonable claim under Rule 9-5(1)(a), I must confine myself to the pleadings, assume the facts alleged in the amended notice of civil claim are true, and take the case as pleaded by Mr. Berthin in its most advantageous light from his perspective: Gichuru v. Smith , 2010 BCCA 352 at para. 22 ; Canadian Bar Assn. v. British Columbia , 2008 BCCA 92 at para. 37 . [15] Pleadings also deserve a generous reading under the other sub-rules. The court in Willow v.

Chong , 2013 BCSC 1083 discussed the test under Rule 9-5(1)(b): [20] Under Rule 9-5(1)(b), a pleading is unnecessary or vexatious if it does not go to establishing the plaintiff's cause of action, if it does not advance any claim known in law, where it is obvious that an action cannot succeed, or where it would serve no useful purpose and would be a waste of the court's time and public resources ... [16] The court in Mohebbi v.

North Vancouver RCMP , 2015 BCSC 2083 also summarized some authorities on the meaning of frivolous, vexatious or unnecessary pleadings under Rule 9-5(1)(b), at para. 18: ... “[a] pleading is frivolous if it is without substance, is groundless, fanciful, 'trifles with the court' or wastes time.” A pleading is vexatious or unnecessary where it does not go to establishing the plaintiff's cause of action or fails to advance any known legal claim ... [Citations omitted.] [17] The court in Babavic v.

Babowech , 1993 CarswellBC 2950 discussed abuse of process in the context of the predecessor to Rule 9-5(1)(d), at para. 18: The categories of abuse of process are open.

Abuse of process may be found where proceedings involve a deception on the court or constitute a mere sham; where the process of the court is not being fairly or honestly used, or is employed for some ulterior or improper purpose; proceedings which are without foundation or serve no useful purpose and multiple or successive proceedings which cause or are likely to cause vexation or oppression. [ 11 ] As stated in Rule 9-5(2) of the Supreme Court Civil Rules , and as affirmed by Justice Johnson in the Berthin decision, evidence is only permitted on an application to dismiss or strike brought pursuant to Rule 9-5(1)(b), (c), or (d).

No evidence is to be considered on an application brought pursuant to Rule 9-5(1)(a), however it must be assumed that the facts pleaded are true. II. Background

[12] On the date of removal pursuant to s. 30 of the CFCSA, three minor children lived in the home of the plaintiff parents, namely,Thai, born February 15, 1998 (the biological child of the plaintiff Trang), Marion, born September 28, 2007 and Beth, born March 10,2009 (each of whom is the biological child of the plaintiff parents).

I note that the child Thai has subsequently attained the age ofmajority and is not named as a plaintiff. [13] The plaintiffs allege that on February 22, 2012, the director received an anonymous report to the effect that the child Thaialleged he and the other two children were being exposed to verbal and physical abuse from the plaintiff parents. [14] On February 24, 2012, all three children were removed from the parental home and placed in foster care. [15] The matter came before the Provincial Court on February 29, 2012, was adjourned to March 7, 2012, further adjourned toMarch 14, 2012, and heard on March 22, 2012. [16] On March 22, 2012, the presentation hearing, as required pursuant to s. 34(1) of the CFCSA, proceeded before the HonourableJudge Wood.

It was contested. Wood P.C.J. concluded “… there were reasonable grounds to remove …” the children pursuant to s. 30of the CFCSA. Following that conclusion, and on March 30, 2012, Wood P.C.J. considered what order would adequately protect theplaintiff children pending a protection hearing. Pursuant to s. 35(2)(

a) of the CFCSA, he ordered the children be in the interim custodyof the director with reasonable and supervised access to the parents. [17] When the matter came before the Provincial Court on May 9, 2012, for a protection hearing, the Honourable Judge Harveyordered, with the consent of the parties, that the three children be placed in the temporary care of the director for a period of threemonths with reasonable and supervised access to the parents. Subsequently, on June 27, 2012, Harvey P.C.J. ordered the children bereturned to the custody of the plaintiff parents under supervision for a period of six months.

Thereafter, the director took no further stepsor proceedings. [18] There was some issue during the course of arguments on this application as to whether both parents consented to the orders ofJudge Harvey and if so, the circumstances of their consent; however, in my view, those are matters best left to be explored at a trial inthis action if one should proceed. [19] On this application, the plaintiff parents conceded, as stated in their written argument, that: a. there is no established category of fiduciary duty between the Province and the Plaintiff Parents (para. 92); b. there is no cause of action for negligent breach of the statutory duty (para. 93); c. the Province does not owe a duty of care to the Plaintiff Parents (para. 94); d. their

section 8 Charter rights were not infringed and have removed these claims from the proposed Draft Amendments (para. 96). [20] Counsel agree that the only remaining cause of action pleaded by the plaintiff parents appears to be for alleged breaches of s. 7of the Charter. [21] As earlier noted, the primary argument of the Province is that the plaintiff parents’ entire action is an abuse of process andought to be dismissed pursuant to Rule 9-5(1)(d). III. Collateral Attack and Abuse of Process [22] As stated by Mr. Justice McIntyre in R. v.

Wilson, (SCC), [1983] 2 S.C.R. 594 at 599, “a collateral attack maybe described as an attack made in proceedings other than those who specific object is the reversal, variation, or nullification of the orderor judgment.” [23] The following are hallmarks of collateral attack: a party, bound by an order, seeking to avoid the effect of that order bychallenging its validity in the wrong forum. See Garland v. Consumers’ Gas Co., 2004 SCC 25 at para. 72. A court should considerwhether the plaintiff is essentially seeking a rehearing of issues already determined: see Sydel v.

HMTQ, 2010 BCSC 638 at para. 54. [24] It has been noted that administrative law “has review mechanisms in place for reducing error or injustice … [and that] thedecision to pursue a court action instead of judicial review [or appeal]” has been found to result in an impermissible collateral attack onthe decision of an administrative decision maker: see British Columbia (Workers’ Compensation Board) v.

Figliola, 2011 SCC 52 atpara. 29. [25] The Province agrees that the doctrine of collateral attack will not apply in cases where the specific object of the proceeding isnot to invalidate an order or render it inoperative: see Garland at para. 71; see also Canada (Attorney General) v.

TeleZone Inc., 2010SCC 62 at para. 64. [26] According to Wilson at 599, exceptions to the general bar on collateral attacks include instances of fraud or the discovery of newevidence, neither of which is pleaded in this case. [27] In the context of legislative child protection schemes, the British Columbia Court of Appeal has stated that judicial review ofthe decision of the director (as defined under the CFCSA) to remove a child is not a collateral attack on Provincial Court proceedings. Asnoted in E.B. v.

British Columbia (Director of Child, Family and Community Services), 2016 BCCA 66: [70] … The CFCSA requires both presentation hearings and protection hearings, but neither is per se a review or an endorsement ofthe actions that the Director takes to remove the child. The chambers judge said:

[126] It is at least theoretically possible that the court could conclude that a child needs protection, and also conclude that the Director acted improperly in apprehending a child under s. 30 of the CFCSA . … [71] I agree with that assessment. The question of whether the child is in need of protection is one for the Provincial Court under the CFCSA .

On the other hand, the Provincial Court is not given the authority to directly review the conduct of the Director in removing the child. … [74] … There are existing Provincial Court orders dealing with custody, and those orders will not be under scrutiny in a judicial review proceeding directed at the initial decision of the Director to remove the child. Thus, it appears that the only remedy that a court could give on the judicial review proceeding would be a bare declaration that the actions of the Director were unlawful.

The granting of declaratory relief is discretionary, and the Supreme Court might, in its discretion, even decline to hear the judicial review application, given the limited remedy that could be granted. [ 28 ] The doctrine of abuse of process has as its goal the protection of the fairness and integrity of the administration of justice by preventing needless multiplicity of proceedings: see Figliola , at para. 31 . [ 29 ] The doctrine of abuse of process is characterized by its flexibility and is unencumbered by specific requirements.

The plaintiff parents concede that this is a flexible doctrine, but argue that if their action is not found to be a collateral attack, then it follows that the action is also not an abuse of process. The Province submits that abuse of process is broader than the doctrine of collateral attack and is applicable irrespective of a determination on the collateral attack argument. [ 30 ] Having regard to both the doctrines of collateral attack and abuse of process, both exist to preserve fairness by preventing abuse of the decision-making process.

Figliola , at para. 34 , provides the following non-exhaustive list of common underlying principles:

a) Respect for the finality of a judicial or administrative decision increases fairness and the integrity of the administration of justice;

b) It is in the interests of the public and the parties that the finality of a decision can be relied on;

c) Avoiding unnecessary re-litigation avoids an unnecessary expenditure of resources. [ 31 ] The doctrine of abuse of process has its roots in a judge’s inherent and residual discretion to prevent misuse of the court’s procedure in a way that would be manifestly unfair to a party or would in some other way bring the administration of justice into disrepute. Abuse of process can be described as the bringing of proceedings that are unfair to the point that they are contrary to the interests of justice or as oppressive treatment.

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to re-litigate a claim which the court has already determined: see Behn v. Moulton Contracting Ltd. , 2013 SCC 26 at paras. 39-40 . A. Position of the Province i. Collateral Attack [ 32 ] The Province’s position is that the action of the plaintiffs is an impermissible collateral attack on valid orders of the Provincial Court of British Columbia, including consent orders, made pursuant to the CFCSA and is thus an abuse of process.

Noting the hallmarks of collateral attack, the Province submits that the plaintiff parents were the object of the CFCSA orders and participated in the proceedings; they were bound by an order regarding the custody of the children and supervised access; and they are now challenging the validity of the court orders in an incorrect forum and seeking to circumvent the effect of the orders by seeking damages. [ 33 ] The Province notes that counsel for the plaintiff Desmond Quinn, at the presentation hearing, did not take issue with the circumstances surrounding the apprehension and accepted that there were reasonable grounds to remove the children (see the transcript of proceedings in the Provincial Court on March 22, 2012 at pp. 6 and 22). [ 34 ] The Province notes that although Wood P.C.J. did not have the authority to issue a declaration of the invalidity of child removal provisions, Wood P.C.J. was otherwise bound not to apply an unconstitutional law or act in an unconstitutional manner.

The Province submits that the plaintiff parents did not raise any s. 7 Charter claims in the presentation hearing, even though the Provincial Court would have had jurisdiction to consider them. [ 35 ] It is the position of the Province that while Wood P.C.J. was not required or even allowed to make determinations of fact, he nevertheless concluded that the removal of the children was lawful and necessary. [ 36 ] Moreover, the Province submits that since all of the issues raised on this civil action could have been raised before Wood P.C.J. at the presentation hearing (see written submission, at para. 62), the plaintiff parents are merely dressing up their claim as an issue concerning s. 7 of the Charter and the actions of the director rather than the court orders.

The very essence of the plaintiff parents’ action, it is submitted, is an attempt to have a court re-hear and reconsider the evidence and issues before Wood P.C.J. at the presentation hearing. [ 37 ] It is the position of the Province that the CFCSA orders were validly made and within the jurisdiction of the Provincial Court.

The plaintiff parents should either bring a petition for judicial review, or proceed through the internal administrative review process provided for in s. 81 of the CFCSA (which allows for an appeal of an order of the Provincial Court under the CFCSA to the Supreme Court). [ 38 ] Although the Province notes the limited availability of discretionary declaratory relief on judicial review, as stated in E.B. , the Province submits that the court in that case was not suggesting that potential parties should therefore proceed to seek a civil remedy

through an action. [ 39 ] With respect to the May 9, 2012 consent order, the Province submits that ss. 60(4) and (5) -- which allow for consent orders without admissions or findings of fact -- do not allow the plaintiff parents to bring a subsequent civil action to seek damages arising from the custody and supervised access consented to under that order. [ 40 ] Finally, the Province submits that the claim for damages for

(1) Charter damages for separation from children; (2) costs of supervising access; and (3) legal costs, all flow from the orders regarding supervision and custody, not from any findings of fact. ii. Abuse of Process [ 41 ] The Province also submits that the claim should be barred as being an abuse of process on the basis that the plaintiff parents are attempting to misuse this civil action to re-litigate matters that were already decided in the CFCSA proceeding.

Allowing the plaintiff parents to sue and seek a reconsideration of the same evidence before Wood P.C.J. would undermine child protection proceedings and the purposes of the CFCSA . [ 42 ] Moreover, the Province submits, in their reply argument that: The end result of the Plaintiff Parents’ arguments at this hearing appears to be that every single parent who has had their children removed without the 20 principles of fundamental justice, such as an interview, being met prior to removal who had children returned without proceeding to a contested protection hearing, now has a claim for Charter damages, even though they do not have a claim in negligence. [ 43 ] That, the Province argues, would bring the administration of justice into disrepute and is therefore an abuse of process.

B. Position of the Plaintiff Parents i. Collateral Attack [ 44 ] The plaintiff parents submit that the civil action is neither a collateral attack nor an abuse of process. [ 45 ] The plaintiff parents argue that this claim is not a re-litigation of the matter before Wood P.C.J.

Specifically, the plaintiff parents note that the basis for this civil action concerns matters -- whether the children were in need of protection and the appropriateness of the director’s conduct -- which Wood P.C.J. did not have jurisdiction to consider given the limited scope of a presentation hearing. [ 46 ] Moreover, the plaintiff parents submit that, in light of ss. 60(4) and (5) of the CFCSA , the consent ordered dated May 9, 2012 was entered into without a court finding that the children were in need of protection and without an admission of the grounds alleged by the director for their removal. [ 47 ] According to the plaintiff parents, the decision of Wood P.C.J. was not a finding that the director removed the children on reasonable grounds, nor was it a finding that the children were in need of protection.

Rather, it was merely a finding that there was evidence which, if believed, could form reasonable grounds for the director to remove a child.

As no finding of a need for protection was made at the presentation hearing, or on the consent order, it cannot be said that this claim seeks re-litigation of matters which were before the Provincial Court. [ 48 ] The plaintiff parents’ response to the argument of the Province that they ought to have sought an appeal or judicial review of the orders made under the CFCSA is that an appeal would be of no use given that the plaintiff parents agree with the test applied by Wood P.C.J., and the determinations he reached at the presentation hearing.

The essence of the plaintiff parents’ position is that Wood P.C.J. made a correct decision based on the unlawful actions of the Province -- actions which were beyond the authority of Wood P.C.J. to consider: see E.B. , at para. 71 . [ 49 ] The plaintiff parents note that judicial review would be of no use as the remedies available are insufficient.

They argue that since a court, on judicial review, would be limited to an order of discretionary declaratory relief, there is the possibility that a court would simply decline to the hear matter entirely: see E.B. , at para. 74 . [ 50 ] The plaintiff parents also submit that the hallmarks of collateral attack are not present here. They note that both the interim custody order of Wood P.C.J. and the subsequent consent order have since expired and are of no present or future effect on the plaintiff parents.

As such, it is submitted that there is no logical reason for the plaintiff parents to attempt to circumvent the effect of, invalidate, or render inoperative either order, and that accordingly, the argument of collateral attack must fail. [ 51 ] The plaintiff parents therefore submit that all that remains is a civil action for constitutional damages -- a remedy recognized by the Supreme Court of Canada in Vancouver (City) v. Ward , 2010 SCC 27 .

The plaintiff parents suggest that preventing this claim from proceeding would provide the director with immunity from scrutiny of its conduct in circumstances where a protection hearing does not occur. They submit the Province is trying to thwart a valid claim for constitutional damages by styling it a collateral attack. ii.

Abuse of Process [ 52 ] On the basis of the arguments earlier noted, the plaintiff parents submit that the issues raised in the present action have never been raised or decided in another proceeding, and that this action will have no impact on the finality or effect of the orders made under the CFCSA . [ 53 ] Finally, the plaintiffs argue this action is neither unfair to the Province, nor does it bring the administration of justice in disrepute.

C. Discussion [54] I have concluded that the plaintiff parents’ claim is neither a collateral attack on the decision of Wood P.C.J. nor an abuse ofprocess. The applications to dismiss or strike on these grounds must fail. [55] In my view, the plaintiff parents’ claim is in regard to the conduct of the director in the director’s investigation of allegations ofharm and the ultimate decision made to remove the children from their parental home.

Clearly, a judge at a presentation hearing does nothave jurisdiction to make determinations on these issues and often, consent orders can be and are made without findings of fact oradmissions of the grounds alleged by the director for removal. Accordingly, the claim in this action concerns matters and raises issuesthat have yet to be adjudicated upon. [56] I agree with the plaintiffs that neither an appeal under the act, or judicial review of the order of Wood P.C.J. or the consentorder dated May 9, 2012, would be appropriate in the circumstances.

The plaintiff parents do not dispute the reasoning invoked orconclusions reached.

Moreover, the plaintiff parents seek damages, a remedy not available under either an appeal or on judicial review. [57] Furthermore, since the orders at issue have ceased to be of any effect, it cannot be argued that the plaintiff parents areattempting to circumvent the effect of, invalidate, or render inoperative an order of the Provincial Court. [58] On the argument that their claim amounts to an abuse of process, I am of the view that the plaintiff parents are not merelyseeking to use court resources in order to re-hear a previously litigated matter.

As a consequence, I have concluded that to allow theclaim to proceed would not bring the administration of justice into disrepute. [59] Finally, I note that the Province raises the concern that the plaintiff parents are dressing up an otherwise barred claim innegligence as a claim for constitutional damages on largely the same basis. Although I agree that if that were the case it is arguable theclaim could be construed as one amounting to an abuse of process, I am unable to reach that conclusion. In their proposed amendments,the plaintiffs have deleted pleadings which go to negligence per se.

And it is equally arguable that the claim as submitted by theplaintiffs, if dismissed, could immunize an administrative decision-maker from Charter scrutiny. [60] In all of the circumstances, I am of the view that the argument of the Province that the claim be struck as an abuse of processhas not been made out. IV. No Reasonable Cause of Action [61] According to the Supreme Court of Canada in Hunt v. Carey Canada Inc., (SCC), [1990] 2 S.C.R. 959 at 980,the test governing R. 9-5(1)(

a) is as follows: … [A]ssuming that the facts as stated in the statement of claim can be proved, is it “plain and obvious” that the plaintiff's statement ofclaim discloses no reasonable cause of action? … [I]f there is a chance that the plaintiff might succeed, then the plaintiff should not be“driven from the judgment seat”. Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential forthe defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case.

Only if the action is certainto fail because it contains a radical defect … should the relevant portions of a plaintiff's statement of claim be struck out under Rule19(24)(a) [now, Rule 9-5(1)(a)]. [62] In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 21, the Supreme Court of Canada restated the test as being“whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed” and noted “[t]he approach mustbe generous and err on the side of permitting a novel but arguable claim to proceed to trial.” A. Elements of Malmo-Levine Have Not Been Plead [63]

Section 7 of the Charter reads as follows: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance withthe principles of fundamental justice. [64]

Section 7 of the Charter requires a two-step analysis to determine whether legislation or other state action infringes that right: 1) Is there an infringement of the right to life, liberty or security of the person? 2) If so, is the infringement contrary to the principles of fundamental justice? [65] As stated in R. v. Malmo-Levine, 2003 SCC 74 at para. 113, for a rule or principle to constitute a principle of fundamentaljustice it must be:

a) a legal principle,

b) about which there is significant societal consensus that it is fundamental to the way in which the legal system ought tofairly operate, and

c) identified with sufficient precision to yield a manageable standard against which to measure deprivations of security of theperson. i. Position of the Province [66] The Province agrees that the plaintiff parents’ right to security of the person was engaged when the plaintiff parents’ children

were removed from their care. The only question is whether the removal was carried out in accordance with the principles of fundamental justice. [ 67 ] The Province argues that despite multiple amendments to the notice of civil claim, the plaintiff parents have failed to plead a principle of fundamental justice that not only meets the general criteria for a principle of fundamental justice but also would be a principle in the context of child protection proceedings. [ 68 ] In respect to further arguments of the Province, reference must be made to the plaintiffs’ Draft Amendment to the notice of civil claim,

Schedule “A”,

Part 3, paras. 6.1 and 6.3, which read as follows: 6.1 The right of the Plaintiffs’ parents to be so protected includes the right to nurture the Plaintiff children, and the right to make fundamental choices, the right to personal liberty and autonomy and the right to psychological integrity for the themselves and the Plaintiff children, the particulars of which include the removal of the children from the nurture of their parents and the continuation of that nurture. … 6.3 The duty owed to each of the Plaintiffs pursuant to

section 7 of the Charter of Rights includes the duty to act in accordance with the principles of natural justice, to act fairly, and in a procedurally fair manner, and to make impartial decisions, a duty to act in good faith and without oblique motive and not to act in an atmosphere of prejudice, or contrary to the cannons of decency and fairness and a duty not to act arbitrarily, the particulars of which include: a. The right not to have the Plaintiff children removed unless authorized by law c. The right to not have the Plaintiff children removed in an unfair manner or by biased agents of the state e.

The right for there to be fair, unbiased and impartial or in the alternative unbiased investigation of the allegations prior to making a decision to remove the Plaintiff children f. The right to have the Defendant take fair and reasonable steps to ensure the Plaintiff children are not removed on the basis of false or unreliable allegations g. The right to not be remove arbitrarily on the basis of an uninvestigated and unsubstantiated allegation i. The right to have the allegations assessed in a fair or in the alternative, unbiased manner and in a process embodying procedural fairness j.

The right of the Plaintiff parents to have the opportunity to be interviewed about an abuse allegation, to respond to that abuse allegation and to have their response and any other information they wish to provide fairly and impartially considered in an assessment of whether there were reasonable grounds to remove the Plaintiff children prior to any decision to remove the Plaintiff children except in exigent circumstances p.

The right to have information provided by the Plaintiff Parents fairly considered or in the alternative without bias and assessed, including information relating to the reliability and credibility of the allegations. r.

The ongoing right to have the Defendant reassess, fairly, whether, in light of any information provided by the Plaintiff Parents, the Defendants still had reasonable grounds to believe the Plaintiff children were in need of protection and whether the Plaintiff children could be adequately protected by less disruptive means if they were returned to the care of the Plaintiff parents, and not to refuse the return of the children arbitrarily. s. The right not to have removal or return decisions based on information that is dated, irrelevant, or false. t. The right to procedural fairness including: i.

The right to prior notice that the decision-maker was considering making a decision to remove the Plaintiff children; ii. The right to be advised of the allegations, the Defendant’s concerns and the disclosure of the case to meet; iii. The right to have a reasonable and meaningful opportunity to participate in the making of the decision to remove the Plaintiff children; iv. The right to an informal in-person oral hearing appropriate to the circumstances and the importance of the decision to the affect parties; v. The right to present relevant evidence vi.

The right to make representations or submissions on their own behalf in relation to making the decision to remove the Plaintiff children vii. The right to have the decision-maker disregard irrelevant evidence; viii. The right to have the decision-maker not disregard relevant evidence ix. The right to have the decision-maker implement and follow a fair procedure;

x. The right to have a fair, impartial and unbiased decision-maker. [69] The Province submits that the following pleading is not a principle of fundamental justice, and if it were, it is plain and obviousthat the principle was upheld in the circumstances: Draft Amendment,

Part 3, para. 6.3(a). [70] The Province submits that the following pleadings do not meet the test laid out in Malmo-Levine and do not describe principlesof fundamental justice: Draft Amendment,

Part 3, paras. 6.3(c), (e), (f), (g), (i), (j), (p), (r), and (s). [71] The Province submits that the following pleadings delve into evidentiary issues discussed in Winnipeg Child and FamilyServices v. K.L.W., 2000 SCC 48, concerning the difficulties of evidence in child protection proceedings and is, on the basis of K.L.W.not a principle of fundamental justice: Draft Amendment,

Part 3, paras. 6.3(f), (g), and (s). [72] The Province submits that the following pleadings describe principles of negligent investigation or negligent weighing ofevidence, not principles of fundamental justice: Draft Amendment,

Part 3, paras. 6.3(e), (f), (p), (r), and (s). [73] The Province submits that the following pleadings are contrary to K.L.W.: Draft Amendment,

Part 3, paras. 6.3(c), (i), and (j). ii. Position of the Plaintiff Parents [74] The plaintiff parents submit that the principle of fundamental justice they plead is the duty of procedural and substantivefairness, the content of which is particularized in Draft Amendment,

Part 3, paras. 6.1 and 6.3. [75] The plaintiff parents also say that each of the particulars enumerated in paras. 6.1 and 6.3 are rights which constitute principlesof fundamental justice and which meet the three-part test in Malmo-Levine. The plaintiff parents further submit that any concerns thecourt may have in respect of the pleading of principles of fundamental justice, could be cured by further amendments to the amendednotice of civil claim. [76] The plaintiff parents assert that the duty to act fairly is at the basis of natural justice.

The principle of fundamental justice inquestion is that there must be a measure of procedural fairness and a measure of unbiased and fair decision-making when the right tosecurity of the person is engaged. The plaintiff parents say that this principle has long been accepted as having met the evidentiaryrequirements of the test in Malmo-Levine. [77] The plaintiff parents rely on Singh v. Canada (Minister of Employment and Immigration), (SCC), [1985] 1S.C.R. 177, for the proposition that fundamental justice includes, as a minimum, the notion of procedural fairness.

The plaintiff parentsassert that the tribunal in Singh is similar to the director of the CFCSA as both are administrative decision-makers and that therefore theprinciple of fundamental justice contemplated in Singh is applicable to the case at bar.

Moreover, the plaintiff parents agree thatprocedural fairness may require different things in different contexts and that therefore it is for the court to determine, at trial, what thecontent of the pleaded principle of fundamental justice is in the particular circumstances. [78] Moreover, the plaintiff submits that it is not necessary to plead the specific elements of Malmo-Levine.

Rather, the plaintiffparents assert that the three-part test is of interpretive assistance and was necessary in Malmo-Levine given the problematic nature of theproposed recognition of a “harm principle.” This, it is argued, is contrasted from the case at bar which involves an already acceptedprinciple of fundamental justice, the duty of procedural fairness. iii. Discussion [79] I am of the view that the question of whether the duty of fairness meets the test in Malmo-Levine is best left to be decided attrial if there is one, in the context of a full evidentiary record, rather than on an application to strike.

The plaintiff parents note in theiroral submission that it is anticipated that there will be evidence of societal consensus and manageability adduced at trial. [80] While I agree that the plaintiff parents’ pleadings might have been drafted with greater clarification and less prolixity, havinghad the benefit of the plaintiff parents’ written and oral submissions, I conclude it is not plain and obvious that the plaintiffs’ claimdiscloses no reasonable cause of action. [81] Finally, I note that to some degree I share the concern of the Province regarding lack of clarity on the question of whether theplaintiff parents are pleading a sole principle of fundamental justice -- the duty of procedural and substantial fairness, accompanied by aset of particulars which might form the content of that duty -- or whether the plaintiff parents are pleading a range of principles offundamental justice, one of which is the duty of substantial fairness while others may be novel variations of that duty.

However, I amsatisfied that the plaintiffs’ proposed further amendments would aid in this regard. [82] On the proposed draft amendments to the amended notice of civil claim and given the possibility of further amendments asoutlined in submissions before me, I am of the view that the plaintiff parents allege that the investigation and decision of the directorinfringed s. 7 in a manner that is contrary to the duty of fairness which, as noted in submissions, is a recognized principle of fundamentaljustice. [83] As to whether or not the plaintiff parents are required to plead the constituent elements of the Malmo-Levine test, I agree withthe plaintiffs’ submission that pleadings are meant to briefly state the legal basis on which the claim is proceeding and are not to includeevidence.

The principle pleaded is the duty of fairness, the context of which ought to be left to be determined at trial. [84] As well, it appears the plaintiffs also plead the material facts concerning the alleged infringement of s. 7 in

Part 1 of theamended notice of civil claim. If the Province requires anything further, such requirements could presumably be met by further stepstaken in accordance with the Rules, for example, an application for particulars or through the process of discovery, and that the pleadingsare capable of amendment to correct deficiencies.

B. Whether K.L.W. Bars the Plaintiff Parents’ Claim [ 85 ] The issue in K.L.W. concerned the constitutionality of child removal provisions in the Manitoba child-protection legislation. The claimant argued that a pre-apprehension intra pares hearing was required in order to meet the minimum requirements of s. 7 of the Charter .

The dissent would have held that a pre-apprehension intra pares hearing was untenable, but that ex parte judicial authorization should be required. [ 86 ] The majority found that in the child-protection context, the warrantless apprehension of a child in non-emergency situations would not offend the principles of fundamental justice so long as there was a fair and prompt post-apprehension hearing to determine whether or not the child required protection.

Fairness here required that the parents receive reasonable notice of the hearing, are provided with particulars, and that the hearing be based on a more complete record in an adversarial forum: see K.L.W. at para. 116 . i. Position of the Province [ 87 ] As noted above, the Province argues that many of the pleaded principles of fundamental justice in the Draft Amendment are inconsistent with K.L.W. and that because the child protection schemes in British Columbia and Manitoba are so similar, the plaintiff parents’ argument is bound to fail.

For the same reasons, the Province further suggests that if the plaintiff parents were to challenge the constitutionality of the CFCSA , which it is agreed the plaintiff parents are not doing, such a challenge would nevertheless be bound to fail given the ruling in K.L.W. [ 88 ] The Province submits that the CFCSA requires that a post-apprehension hearing must follow warrantless apprehensions in non- emergency circumstances.

Moreover, they submit that when the director removes a child, particulars are provided to the parents through “Form A” as prescribed by the CFCSA and that parents will have an opportunity to be represented at the presentation hearing, to cross- examine the social worker -- acting on the authority of the director -- who affected the removal and who prepared the Form A report. They submit that this meets the minimum requirements of s. 7 . [ 89 ] The Province argues that the main thrust of plaintiff parents’ argument as identified through the principles pleaded in Draft Amendment,

Part 3, para. 6.3, is the plaintiff parents ought to have been afforded pre-removal procedural rights which even the dissent in K.L.W. was unwilling to mandate. As such, the Province submits that the plaintiff parents’ claim is bound to fail. [ 90 ] The Province notes in their reply argument that they now understand the plaintiff parents’ argument to be that if the CFCSA does not meet the minimum requirements of s. 7 , it therefore falls to the director to act in a quasi-judicial role. The Province argues that according to P.E. v.

Nunavut (Director of Child and Family Services) , 2010 NUCJ 24 , and Manitoba (Director of Child and Family Services) v. H.H. and C.G. , 2016 MBQB 138 , a s. 7 breach in either the legislation or the process before the Provincial Court does not retroactively put additional pre-removal obligations on the director. Instead of imposing a quasi-judicial role on the director, the Charter breach requires the legislature fix the post-apprehension process. ii. Position of the Plaintiff Parents [ 91 ] The plaintiff parents submit that the outcome reached in K.L.W. is distinguishable from the circumstances of this matter.

Primarily, the plaintiff parents argue that K.L.W. involves a constitutional challenge to the child protection scheme in Manitoba, whereas the present matter concerns a claim for constitutional damages against the director of the, materially different, child protection scheme in British Columbia. [ 92 ] The court in K.L.W. notes at paras. 116 and 122-23 that “the seriousness of the interests at stake demands that the resulting disruption of the child-parent relationship be minimized as much as possible by a fair and prompt post-apprehension hearing” and that “[i]n order to be fair, the hearing must involve reasonable notice with particulars to the parent, as well as an opportunity for them to participate meaningfully in the proceedings.” The court contemplated that this hearing would determine whether a child is in need of protection based on a more complete record in an adversarial forum. [ 93 ] On this basis, the Supreme Court of Canada concluded that the scheme in Manitoba met the minimum requirements of s. 7 .

The plaintiff parents argue that, unlike in K.L.W. , the scheme in British Columbia does not meet the minimum requirements of s. 7 on the basis that it is not until the protection hearing -- which might not be scheduled for a month and a half after the removal -- that a determination is actually made as to whether the child is in need of protection. [ 94 ] Accordingly, the overall argument of the plaintiff parents is that their s. 7 rights were engaged at the moment that there was a consideration by the director to infringe those rights vis-à-vis the removal of the plaintiff parents’ children.

As the post-apprehension process does not meet the minimum requirements the Charter , it therefore falls to the director to act with judicial temperance in considering and investigating removal and s. 7 must to be applied in its full force to the decisions of the director. The director cannot look to the post-apprehension process under the CFCSA as a defence. iii. Discussion [ 95 ] When K.L.W. was decided, the child removal provisions under the Child and Family Services Act , S.M. 1985-86, c. 8, operated as follows:

a) A warrantless apprehension was authorized when the director had reasonable and probable grounds to believe that a child was in need of protection (s. 21(1)).

b) Within 4 juridical days of the apprehension, the director was required to make an application for a hearing to determine whether the child was in need of protection (s. 27(1)).

c) This application for a hearing had to be returned within 7 juridical days of being filed (s. 29(1)).

[ 96 ] Therefore, under the legislative scheme before the court in K.L.W. , an adversarial hearing was required within approximately two weeks of apprehension where a finding would be made as to whether or not the child was in need of protection. [ 97 ] The parallel scheme in British Columbia, under the CFCSA , differs materially. The BC scheme operates as follows:

a) A warrantless apprehension is authorized when the director has reasonable grounds to believe that the child needs protection (s. 30).

b) The director must then attend a presentation hearing no later than 7 days after the day a child is removed (s. 34).

c) At a presentation hearing, the trial judge does not determine whether or not a child is need of protection, but is required to determine whether there is admissible evidence which, if believed, could lead to a finding that the child was in need of protection.

d) At the presentation hearing stage, a judge must resolve any conflict in the evidence in favour of the director and not make any findings of credibility: British Columbia (Director, Child, Family and Community Services) v. J.C. , 2014 BCSC 496 at paras. 21-22 .

e) At the conclusion of a presentation hearing, the court must then set the “the earliest possible date for a hearing to determine if the child needs protection” which “must not be more than 45 days after the conclusion of the presentation hearing” (ss. 37(1) and (2)). [ 98 ] Wood P.C.J. notes that “there is a statutory time or date by which [a protection hearing] must begin … [b]ut the practical reality which we all live with is that nothing will happen on that date, unless some magic intervenes to provide the kind of window that would enable this matter to be heard completely” (Reasons for Judgment, Presentation Hearing, March 30, 2012 at para. 11). [ 99 ] On this application, and considering the limited view of the action I have at this stage, I generally agree with the position of the plaintiff parents regarding the application of K.L.W. to the case at bar.

Whether K.L.W. will ultimately defeat the claim of the plaintiff parents, is a matter to be determined at trial, not on an application to strike. The test on an application to strike is whether the plaintiffs’ case as pled is bound to fail or whether proposed amendments could salvage an otherwise questionable case. I am not persuaded that it is plain and obvious that, in light of K.L.W. , the plaintiffs’ claim discloses no reasonable cause of action such that the plaintiff parents’ should be barred from taking further steps. [ 100 ] Accordingly, the application of the Province to strike on this basis must fail.

V. Unnecessary, Scandalous, or Vexatious [ 101 ] The Province is also seeking to strike or dismiss the plaintiff parents’ pleadings on the basis that their claim is unnecessary, scandalous, or vexatious pursuant to Rule 9-5(1)(b). [ 102 ] For the reasons provided above, and in light of the analysis in Mohebbi , as quoted in Berthin , I conclude that the claim pled by the plaintiff parents is not unnecessary, scandalous, or vexatious. [ 103 ] The Province’s application to strike or dismiss on this basis must also fail. VI. Declaratory Relief [ 104 ] Finally, the Province argues that the declarations sought in

Part 2, para. 1(a), (b), (

c) and (

d) of the Draft Amendment ought to be struck as being inappropriate, vague, of no utility (given that declarations cannot invalidate court orders), as not pertaining to legal rights, and because the plaintiff parents failed to pursue and exhaust internal review processes. [ 105 ] The plaintiff parents reiterate that the content of the declarations sought differ from the findings, if any, arising from the orders made in the child removal proceedings.

The gist of their argument is that the only finding made was that there was sufficient evidence which, if believed, could form reasonable grounds for the director to remove a child. [ 106 ] Having considered the parties’ positions, I am prepared, on this application, to strike paras. 1(a), (b), and (

c) of

Part 2 of the amended notice of civil claim as vague, overlapping variations of the same theme and therefore unnecessary. However, I am not prepared to strike para. 1(

d) on the arguments advanced by the Province. VII. Conclusion [ 107 ] Subject to para. 106 above, the application of the Province to dismiss or strike is dismissed. The parties are at liberty to argue the matter of costs if they wish. “J. L. Dorgan, J.” The Honourable Madam Justice Dorgan