Forsyth v LC, 2024 ABCA 14

In the Court of Appeal of Alberta Citation: Forsyth v LC, 2024 ABCA 14 Date: 20240115 Docket: 2303-0185AC Registry: Edmonton Between: The Honourable Heather Forsyth and The Honourable Janis Tarchuk Appellants - and - LC and EMP Respondents (Plaintiffs) - and - His Majesty the King in right of Alberta as represented by the Director of Child Welfare Not a Party to Appeal (Defendant) Identification Ban – See the Child, Youth and Family Enhancement Act ,

section 126.2. No person shall publish the name or photograph of a child or of the child's parent or guardian in a manner that reveals that the child is receiving, or has received, intervention services. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published.

_______________________________________________________ The Court: The Honourable Justice Jack Watson The Honourable Justice Kevin Feehan The Honourable Justice Alice Woolley _______________________________________________________ Memorandum of Judgment Appeal from the Order by The Honourable Justice R.A. Graesser Dated the 18th day of August, 2023 Filed on the 20th day of September, 2023 ( 2023 ABKB 523 , Docket: 0703 10836) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: I.

Overview [ 1 ] The Honourable Heather Forsyth and the Honourable Janis Tarchuk, in their capacities as former Ministers of Children’s Services in Alberta, appeal a decision of a case management judge requiring that they attend for questioning in these class action proceedings: LC v Alberta (Child Welfare) , 2023 ABKB 523 . That decision was stayed pending appeal: 2023 ABCA 290 . [ 2 ] The permitted questioning was restricted to the years each appellant was Minister in this portfolio, Ms Forsyth from November 25, 2004 to December 14, 2006, and Ms Tarchuk from December 15, 2006 to January 4, 2010.

Questioning was also restricted to only two allegations in the class action proceedings: alleged misfeasance in public office by relevant Directors and “failure of the Government to sue itself for harm to children in care” . [ 3 ] For the reasons below, the appeal is allowed. II. Background [ 4 ] A succinct review of the statutory background is set out in LC v Alberta , 2017 ABCA 284 , para 26 , leave to appeal ref’d SCC no 37659 (25 Oct 2018):

From 1984 until 2004, the Child Welfare Act , SA 1984, c C-8.1 as amended, required that a service plan be prepared and filed with the Provincial Court of Alberta within 30 days from the granting of a [temporary guardianship order]. As a result of this Court concluding that the failure to file a care plan rendered the [temporary guardianship order] void ( TS v Alberta (Director of Child Welfare) , 2002 ABCA 46 , 299 AR 290), the Child Welfare Amendment Act , 2002 (No 2) , SA 2002, c 10 was passed which purported to validate all [temporary guardianship orders] granted before February 21, 2002.

The Child Welfare Act was replaced by the Child, Youth and Family Enhancement Act , SA 2003, c 16 , effective November 1, 2004. As the case management judge stated at para 15 of his reasons, “[a]t that time, the provisions requiring the filing of a care plan were repealed. The Director was still required to prepare a ‘concurrent plan’ dealing with family reunification issues within 42 days from the date of the initial application for custody of the child.

That regime continued until October 1, 2009 when concurrent planning was removed as a legislated requirement” as a result of the Child, Youth and Family Enhancement Amendment Act , SA 2008, c C-31. [ 5 ] In TS , this Court directly addressed the legal effect of the failure by the Director of Child Welfare to file a care plan in the Provincial Court of Alberta, as it then was, under the Child Welfare Act within 30 days of the granting of a temporary guardianship order.

This Court said, para 5: “The failure to file the plan renders the [temporary guardianship order] void on the 31st day after it is granted and precludes its review under s. 30”. [ 6 ] LC and EMP brought a claim against Her Majesty the Queen in right of Alberta as represented by the Director of Child Welfare on their own behalf and on behalf of all children in care of the Crown under temporary guardianship orders between February 21, 2002 and November 1, 2004 granted under the Child Welfare Act , and who remained in custody and care of the Crown after it failed to prepare and file with the Court care plans within 30 days of obtaining the temporary guardianship order, and on behalf of their parents and guardians. [ 7 ] LC and EMP also alleged that after November 1, 2004, the Director or delegates failed to advise the Court on numerous occasions that they had neglected to file the required care plans for children in care, that the department’s practice was to avoid suing the Crown for children in care, the department neglected to provide proper advice and assistance to allow children in care to sue the Crown, and it took no steps itself to consider suing on behalf of the affected children in care. [ 8 ] This matter has been case managed by the case management judge since 2010. [ 9 ] In 2010, the Crown brought an application to strike various portions of the claim.

On appeal, this Court upheld the striking of several claims, but allowed EMP “to maintain her claim based on the alleged violation of fiduciary obligations, and further allow[ed] the [children in care, their parents and guardians] to maintain their allegations relating to the tort of misfeasance in a public office and the purported violations of ss. 7 and 9 of the Charter ”: LC v Alberta , 2010 ABCA 14 , para 1 , 316 DLR (4th) 760. [ 10 ] On March 14, 2016, the litigation as amended was certified as a class action pursuant to the Class Proceedings Act , SA 2003, c C-16.5 : LC v Alberta , 2016 ABQB 151 . [ 11 ] In September 2017, this Court further restricted this class action in LC v Alberta , 2017 ABCA 284 .

See paras 30, 35, 36, 40, 43, and 47-48: The appeal is allowed to the extent only that the applicable class period is restricted to between February 21, 2002 and November 1, 2004. As a result, the common issues certified by the case management judge and attached as

schedule 1 to the Order dated July 18, 2016 is amended to reflect the restricted class period. [ 12 ] Those dates relate to the period of time between passage of the Child Welfare Amendment Act, 2002 (No 2 ) , and the effective date of the Child, Youth and Family Enhancement Act, SA 2003, as identified in this Court’s decision in TS . [ 13 ] As a result, the matter before us is limited to the class of children in care and their parents and guardians, between the dates of February 21, 2002 and November 1, 2004, limited to the applicable common issues.

The two common issues of concern in this appeal extend the allegations of this limited class beyond November 1, 2004: 3. Did the Director owe a duty to Child Class Members to consider the commencement of proceedings against the Director for the allegations described above and/or a duty to take remedial steps? If so, was a breach of those duties:

a) a breach of a duty of care, in negligence, and/or

b) an abuse of public office/misfeasance in public office, by the director to such Child Class Member giving rise to a cause of action? 3.1. Did the Director owe a duty to the Child Class Members to safeguard their legal interests for the allegations described above? If so, what are the particulars and scope of this duty and was a breach of this duty a breach of fiduciary

duty? III. Case Management Judge’s Decision [14] On September 14, 2023, the case management judge issued Reasons for Decision on the Ministers’ application to strike theirappointments for questioning. He acknowledged the applicants’ argument that the Ministers’ tenures post-dated the period defining theclass. He said the initial burden on a party wishing to examine a Minister is “to demonstrate that there is a legitimate need to question theminister and that the proposed questioning is not likely an abuse of process”.

He said once that test had been met, the examining partyshould not be required to provide details as to the proposed questioning. The case management judge acknowledged the need forexceptional circumstances to exist. [15] The case management judge said no one had been identified as having better knowledge of the facts than these formerMinisters.

He said if there was deliberate or willful wrongdoing by responsible persons within a department, or the government wasdeliberately or negligently failing to sue itself, the knowledge of the Minister is undoubtedly relevant and material. [16] The case management judge acknowledged that these former Ministers would not have the best knowledge of anygovernmental or departmental policies regarding the filing of care plans, but they would have knowledge of governmental anddepartmental policies regarding the government suing itself.

He concluded that exceptional circumstances were made out and the formerMinisters should submit to questioning on these issues. As noted, that decision was stayed pending appeal. IV. The Law on Questioning a Minister [17] In Leeds v Alberta (Environment), 1989 ABCA 208, 61 DLR (4th) 672, this Court addressed the law on questioningMinisters of the Crown in private litigation. The Court held that the Proceedings Against the Crown Act, RSA 1980, c P-18, ss 1(

c) and11, allowed for questioning of Ministers, subject to strict conditions (now see RSA 2000, c P-25, ss 1(

c) and 11). This Court concluded atparas 40 to 42 that Ministers should be examined only in special circumstances, and only where the Minister is the person best informed.Where there are others beside the Minister who are equally well informed, then policy dictates those others should be examined. Thispolicy must be strictly adhered to in order to prevent abuse. [18] This test is formulated in the public interest to prevent pure “fishing expeditions”, and to only allow questioning relevant andmaterial to the specific allegations in the litigation; see r 5.2, Alberta Rules of Court, AR 124/2010.

Common law Crown immunity canonly be avoided by clear and unequivocal legislative language and then only to the extent of that relaxation of the immunity: R v Thouin,2017 SCC 46, paras 1, 2, 17, 18, 23, 24, 42, [2017] 2 SCR 184.

Those purposes inform the high threshold of the special or extraordinarycircumstances to be met. [19] In Leeds, this Court held there was nothing in the material before it that persuaded the Court the Ministers would be the bestinformed to answer questions on the subject matter of the questioning. [20] The law in Leeds was applied in Hamilton v Alberta (Minister of Public Works, Supply & Services), (ABKB), [1991] 5 WWR 232, para 44, 80 Alta LR (2d) 169 (QB): The plaintiffs are required to satisfy this court that the [former Minister] should be examined because this is a special circumstance andthat he is the person best informed to answer questions relating to matters at issue in these proceedings.

If there are persons equally wellinformed then, for policy reasons, the minister should not be examined”. [emphasis in original] [21] In Hamilton, para 47, the Court held that the “initial burden is on the party making the application for an order compelling aminister or a former minister of the Crown to attend at examinations for discovery to demonstrate that the minister is the best personinformed”.

Then there is a shift of the burden to the Crown to satisfy the Court “there are persons equally well informed”. [emphasis inoriginal] [22] In that case, para 48, the Court found the former Minister was indeed the person best informed in respect to the matters atissue; the applicants had said the Minister was directly involved in the negotiations, and “the only and primary party” involved on behalfof the government. V. Analysis [23] The law is clear.

The onus is upon the party applying to question a Minister or former Minister of the Crown to meet the twointertwined criteria: 1. special circumstances exist requiring the questioning of the Minister or former Minister; and 2. the Minister or former Minister is the person best informed to answer the questions to be posed. These criteria must be strictly adhered to. If these criteria are proven, there is a shift of the evidentiary burden to the Crown to satisfy theCourt that there are persons equally well informed.

[ 24 ] These criteria are considerably more onerous than those set out by the case management judge; a legitimate need to question the Minister and no abuse of process. (

a) Special Circumstances [ 25 ] The case management judge acknowledged the need for LC and EMP to prove special circumstances, what he called “exceptional circumstances”. The issue is whether he properly concluded that in this matter there are special circumstances to permit the examination of the former Ministers. [ 26 ] As noted, Ms Forsyth served as Minister from November 25, 2004 to December 14, 2006 and Ms Tarchuk from December 15, 2006 to January 4, 2010. The case management judge did not analyze why these Ministers should be questioned as a special circumstance.

He merely indicated that these Ministers were at certain times responsible for child welfare matters. He acknowledged they “would not have the best knowledge of any governmental or departmental policies regarding the filing of care plans”, but that “[k]nowledge by any responsible minister as to the Government’s duties at a particular time, compliance with the Government’s duties, and policies as to compliance or non-compliance with Government’s duties would be relevant and material to the issues of failure to sue, and abuse of public office”.

He said this knowledge constitutes “exceptional circumstances”. [ 27 ] The case management judge said “from a common-sense perspective there would be no one better than the minister of the Crown responsible for the department in question to answer questions as to policy, or the level of knowledge on an issue at the highest level within the appropriate government department.” That rationale, of course, would apply to all Ministers at all times on all issues, leaving Ministers liable to be questioned in every case involving a government decision. [ 28 ] The case management judge provided no analysis as to how the Ministers’ knowledge meets the special or extraordinary circumstances criterion.

In particular, he did not identify any special relationship between the role that the Ministers occupied, or the work that they did, and the issues to be resolved in the litigation. There is no evidence of knowledge on their part during their time as Ministers which is obviously relevant and material. [ 29 ] The case management judge said that proposed questioning of these Ministers would relate to their awareness of, or ability to find out, government policy at the relevant time.

The decision in Leeds does not contemplate conscripting Ministers to make post-facto inquiries about what officials in the Ministry might have known about any such policies, when they knew it, and whether they complied with such policies. [ 30 ] The one reference in the evidence to a Minister inquiring in January 2004 about protecting the legal interests of children in care occurred prior to the terms of either of these Ministers.

It is also purely speculative that either of these Ministers would have knowledge of the alleged tort of misfeasance in public office of the relevant Directors. [ 31 ] It is to be remembered that the personal intentional tort of misfeasance in public office involves knowingly and deliberately engaging in unlawful conduct by a public office holder abusing or exceeding authority and aware that it would likely harm the claimant. “[L]iability does not attach to maladministration, incompetence, bad judgment or mere disregard for an official duty”.

It only attaches “to a public officer who, in addition, demonstrates a conscious disregard for the interests of those who will be affected by the misconduct in question”: Slater v Pedigree Poultry Ltd , 2022 SKCA 113 , paras 84-88 , 203, [2022] 12 WWR 622; Odhavji Estate v Woodhouse , 2003 SCC 69 , para 29 , [2003] 3 SCR 263; Rain Coast Water Corp v British Columbia , 2019 BCCA 201 , para 3 , 90 BLR (5th) 16, leave to appeal ref’d, 2020 SCC no 38791 (16 Jan 2020). [ 32 ] There is no evidence of any knowledge of these Ministers in these matters that the actions of the Directors were deliberate and in knowing disregard for the law. [ 33 ] Therefore, contrary to the conclusion of the case management judge, the first criterion is not met. (

b) Person best informed [ 34 ] The second criterion is that the Minister must be the person best informed to answer the questions to be posed. [ 35 ] The questions proposed to be asked by LC and EMP are said to be: 1. What did the decision makers in the Province know when they failed to consider taking steps when children in care had possible lawsuits against the Province? 2. Why did the decision makers argue that children in care should wait until they were 18 years old to sue the Province? 3.

Why did the decision makers not consider taking steps when the decision makers realized that children in care had possible lawsuits against the Province? 4. Why did the decision makers argue that Child Welfare did not have a responsibility to consider what actions to take when a child in care sued the Province for failing to protect their legal interests? [ 36 ] The decision makers identified in the two relevant common issues of concern in this appeal are the Directors of Child Welfare.

The torts alleged are said to be those of the Directors. There is no evidence that these Ministers were decision makers for the purpose of the questions to be posed. The best that can be said is that LC and EMP hope the Ministers may have some knowledge about the decisions made by the actual decision makers, not their knowledge and deliberate unlawful conduct. [ 37 ] LC and EMP have already questioned Deputy Ministers, Assistant Deputy Ministers, Directors, and Associate Directors of Child Welfare for the relevant period of time.

They may be the persons best informed to answer the questions proposed. [ 38 ] The second criterion, again contrary to the conclusion of the case management judge, is not met. (

c) Others equally well informed [ 39 ] Had LC and EMP met the required criteria, the burden of proof would shift to the former Ministers, as it did in the court below, to show that others beside the Ministers were equally well informed.

As a result of the failure of LC and EMP to meet the initial criteria, this shift of burden does not occur. [ 40 ] Although the former Ministers did not file affidavits suggesting others who might be equally well informed for the prior relevant period in question, they point to the evidence of five individuals already questioned, which evidence was provided to the case management judge. They also point to several other questionings already scheduled but not yet completed as indicating those persons were equally well informed on the issues raised by LC and EMP for the relevant period of time.

They say that five of the witnesses already questioned “were all able to answer every question put to them about the failure to sue allegations”. [ 41 ] As to the personal tort of malfeasance in public office, the departmental actors at the relevant time would reasonably be expected to be at least equally well informed as Ministers as to any misfeasance of the Director or delegate, unless as the former Ministers say “they were the only ones who knew what the policy was or how it ought to have been applied, which is clearly not the case.” VI. Conclusion [ 42 ] For the reasons above, the appeal is allowed.

Appeal heard on January 8, 2024 Memorandum filed at Edmonton, Alberta this 15th day of January 2024 Watson J.A. Feehan J.A. Authorized to sign for Woolley J.A. Appearances: D.A. Shepherd for the Appellant

R.P. Lee for the Respondent