Ziolkoski v Unger, 2023 ABKB 150

Court of King’s Bench of Alberta Citation: Ziolkoski v Unger, 2023 ABKB 150 Date: 20230314 Docket: 0403 14625, 0703 15607 Registry: Edmonton 0403 14625 Between: Helen Ziolkoski (The Estate of Helen Ziolkoski) Plaintiff - and - Linda Unger, Boris Nahornick, Terrence Nugent, His Majesty the King in Right of Alberta and John Doe Defendants 0703 15607 Between: Helen Ziolkoski (The Estate of Helen Ziolkoski) Plaintiff - and - Lionel Whittaker, His Majesty the King in Right of Alberta, Linda Unger, Cal Wrathall and John Doe Defendants

_______________________________________________________ Reasons for Judgment of the Honourable Justice N.J. Whitling _______________________________________________________ I. Introduction [ 1 ] This is a trial of two actions, Action No. 0403 14625 (“Action #1”) and Action No. 0703 15607 (Action #2). In these actions, the Plaintiff, Helen Ziolkoski, by her estate, sues the Defendants for the tort of misfeasance in a public office. The Plaintiff has now closed her case, and the Defendants have brought a non-suit application to dismiss Action #2.

The Defendants have not applied to dismiss Action #1. [ 2 ] In 1980, the Plaintiff was the victim of a serious crime. In the intervening years, she applied to the Crimes Compensation Board (“CCB”) and the Criminal Injuries Review Board (“CIRB”) for certain benefits from the Victims of Crimes Financial Benefits Program of Alberta. The Defendants were public officials responsible for the administration of that Program. The Plaintiff alleges that the Defendants committed certain unlawful acts when dealing with her applications, which acts caused her to experience certain compensable injuries.

The acts relied upon by the Plaintiff include certain alleged breaches of procedural fairness, notably certain failures to disclose documents to her in the context of administrative proceedings. [ 3 ] The trial of this matter commenced on February 22, 2023, with the hearing of some pre-trial applications. The Plaintiff’s opening statement was delivered on February 27, 2023. The Plaintiff closed her case in both actions on March 9, 2023. [ 4 ] Upon the close of the Plaintiff’s case, the Defendants initiated a non-suit application pursuant to r. 8.20 of the Alberta Rules of Court , AR 124/2010 .

As previously stated, that application pertains only to Action #2. In the argument that followed, the Defendants submitted that there is no evidence in the Plaintiffs’ case in Action #2 capable of proving the essential elements of the tort of misfeasance in a public office as defined in Odhavji Estate v. Woodhouse , 2003 SCC 69 at para. 32 . II. Factual and Procedural Background A.

Action #1 [ 5 ] Action #1 was commenced by the filing of the Plaintiff’s Statement of Claim on July 22, 2004. [ 6 ] The original Defendants in Action #1 were Linda Unger (Secretary to the CCB), Boris Nahornick (CCB Member), Terence Nugent (CCB member), the CCB and John Doe. [ 7 ] Paragraph 31 of the original Statement of Claim pleads that the Defendants’ conduct constituted “abuse of public office, fraudulent concealment and negligence”. [ 8 ] The particulars of the claim include allegations that Ms.

Unger “failed to comply with duty of care” for negligently failing to request relevant medical reports, ignoring remarks by a doctor, failing to follow up with that doctor, and failing to provide documents to the Plaintiff or her legal counsel. The claim goes on to plead that Ms.

Unger and the CCB “fraudulently concealed important medical reports and other information from the Plaintiff’s lawyers”, and that the Defendants intentionally and illegally concealed information with reckless indifference and willful blindness. [ 9 ] The factual allegations pleaded in Action #1 focus upon events alleged to have occurred during the period August, 1982, to January, 2004. [ 10 ] One of the central features of Action #1 is the allegation that the Defendants concealed a certain 1986 document from the Plaintiff which has been referred to in this proceeding as the “Massie Memo”.

The Plaintiff has previously described this document as the

“smoking gun” showing that the government acted in bad faith. [1] The pleadings respecting that document were first introduced into Action #1 in the Amended Statement of Claim filed May 20, 2005. Also at that time, the author of the Massie Memo, Bruce Massie, was added as a Defendant. Mr. Massie was removed as a Defendant in Action #1 in the Amended Amended Amended Statement of Claim filed April 20, 2012, but the pleadings respecting the alleged concealment of the Massie Memo remain. B. Action #2 [ 11 ] The Statement of Claim in Action #2 was filed on December 3, 2007.

An Amended Statement of Claim was filed on April 20, 2012. The Defendants in Action #2 are the Victims of Crime Financial Benefits Program, Lionel Whittaker (a lawyer who acted for that Program), Ms. Unger (who was by then an Administrator with the Program), Cal Wrathall (Director of the Program), Her Majesty the Queen in Right of Alberta, and John Doe. [ 12 ] The facts pleaded in Action No. 2 are essentially a continuation of the same narrative pleaded in Action #1. As the Plaintiff’s counsel put it during oral argument of the present application, there are two actions, but they comprise the “same story”.

Those facts begin with a repetition of substantially the same facts pleaded in Action #1 under the heading “BACKGROUND”. As an example, the Amended Statement of Claim in Action #2 includes the following paragraph which encapsulates the allegations that had previously been pleaded in Action #1: 11. The tortious conduct and bad faith conduct of the CCB was concealed from the Plaintiff and her various solicitors. Some of the bad faith and tortuous [ sic ] conduct of the CCB included, but was not limited to:

a) making a decision on the Plaintiff’s application for compensation for improper reasons including to get rid of the file,

b) concealing from the Plaintiff that her application had been decided on improper criteria, by concealing the memo of Bruce Massie dated August 14, 1985 (hereinafter referred to as the “Massie Memo”),

c) ignoring medical reports and other evidence including [...] (hereinafter referred to as the “concealed records”) and

d) concealing the concealed records and Massie memo from the Plaintiff and her counsel. [ 13 ] The Amended Statement of Claim in Action #2 goes on to plead new facts under the heading “NEW ACTION”. Those new facts begin on October 8, 2002, and focus upon a letter written by Mr. Whittaker on September 23, 2004, which contains what is alleged to be a false representation to the CIRB.

It is then pleaded that the Defendants in Action #2 conspired to continue the CCB’s previous misfeasance in a public office by continuing to conceal the same “concealed records”, including the Massie Memo, from the Plaintiff and her counsel. In other words, it is alleged in Action #2 that the Defendants in that action became complicit in the conduct pleaded in Action #1. As an example, paragraph 14 of the Amended Statement of Claim in Action #2 states: 14.

The Defendant Whittaker intentionally or recklessly conspired with the Defendants Unger, Doe and Wrathall to conceal relevant and material information and records from the Plaintiff, including the concealed records and the Massie memo. [ 14 ] Additionally, beginning at paragraph 44, under the heading “LIMITATIONS”, the Amended Statement of Claim in Action #2 sets out a lengthy and detailed recitation of facts which encompasses all or substantially all of the allegations underlying Action #1. This

section includes sub-paragraph 45(nn) which reads: 45. (nn) Between August 31, 1982, to January 2004 Linda Unger failed to comply with duty not to commit acts of abuse of public office, and statutory obligations owed to the Plaintiff. The defendants, Linda Unger, Her Majesty the Queen in Right of Alberta, The Victims of Crime Financial Benefits Program, Lionel Whittaker, Cal Wrathall and John Doe exhibited abuse of public office and fraudulent concealment, some particulars of which include:

a) Intentionally and illegally concealing information with reckless indifference for the Criminal Injuries Compensation Act, rules of Administrative Law, and to the consequences to the Plaintiff;

b) Willful blindness as to harm that could be foreseen to result to the Plaintiff;

c) Failing to perform duties that were represented to the Plaintiff;

d) Inadequately obtaining information necessary to assist the Plaintiff’s claim that it was statutorily obligated to obtain;

e) Failing to process the Plaintiff’s application correctly and with due care and attention;

f) Taking actions against Ms. Ziolkoski motivated by a desire to “get rid of the file”. (oo) The Defendants mislead the Plaintiff as to the existence of documents and failed to provide the documents despite the repeated requests from the Plaintiff. [...] 47. Paragraphs 45... nn, oo, ... apply to the Defendants Lionel Whittaker and Cal Wrathall. [ 15 ] Although the Defendants emphasize that the above paragraphs 45 and 47 appear under the heading “LIMITATIONS”, I do not read their contents as being strictly limited to the issue of limitations.

Those paragraphs plead facts which, if proven, would give rise to liability on the part of the Defendants in Action #2. Consequently, they cannot be disregarded or otherwise discounted for the purposes of the present application.

[ 16 ] In

summary, the Amended Statement of Claim in Action #2 pleads new facts which focus upon Mr. Whittaker’s letter of September 24, 2003, to the CIRB, and the allegedly false representation therein. However, that pleading also repeats and adopts substantially all of the allegations raised in Action #1, and asserts that the Action #2 Defendants became complicit in much if not all of that earlier conduct. A.

The Present Non-Suit Application [ 17 ] At the close of the Plaintiff’s case in this trial, counsel for the Defendants made an oral application pursuant to r. 8.20 to dismiss Action #2 on the ground that no case has been made against the Defendants named in that action. [ 18 ] Significantly, the Defendants did not bring a r. 8.20 application with respect to Action #1.

During oral argument, Defendants’ counsel fairly acknowledged that there at least exists “some evidence” with respect to the allegations raised by that Action #1, such that the Defendants in that action must be put to their election to call evidence.

The net effect of this concession is that, whatever the outcome of this non-suit application might be, this trial must continue to completion, at least with respect to the allegations comprising Action #1. [ 19 ] In their arguments in support of their non-suit application, the Defendants interpret the substantive pleadings in Amended Statement of Claim in Action #2 as being limited to the events surrounding Mr. Whittaker’s letter of September 24, 2003, and his submission of that letter to the CIRB.

They argue that there is no evidence capable of supporting one or more of the essential elements of misfeasance of public office in relation to that discrete set of events. Among other things, they argue that there is no evidence capable proving that any misrepresentation in Mr.

Whittaker’s letter caused any damages to the Plaintiff since that representation had no ultimate impact upon the CIRB’s subsequent decisions respecting compensation. [ 20 ] With regard to the pleadings in Action #2 that reiterate and adopt the allegations in Action #1 (being the allegations that the Defendants fairly acknowledge are not the proper subject for a non-suit), the Defendants argue that those allegations are merely pleaded as background, and in relation to limitations.

On the Defendants’ reading of the Amended Statement of Claim, those pleadings are not relied upon in direct support of any cause of action. Consequently, they argue, Action #2 may effectively be severed from Action #1, and should be dismissed notwithstanding the fact that Action #1 must proceed. [ 21 ] During oral argument, counsel for the Defendants also submitted that if the Court were to find that sufficient evidence exists with respect to some of the Defendants but not others, then the Court should dismiss Action #2 as against certain select Defendants.

The Defendants emphasize that the evidence is particularly thin with respect to Mr. Wrathall. It bears emphasis at this point that all the Defendants in Action #1 and Action #2 are represented by the same counsel, and that none of the Defendants in either action object to one or more of the Defendants in Action #2 being “let out” of the trial at this stage. III. Analysis A. Legal Principles Regarding Non-Suit Applications and Rule 8.20 [ 22 ] The test applicable to non-suit applications is well established, and is not the subject of dispute in the present case.

In Capital Estate Planning Corporation v Lynch , 2011 ABCA 224 , the Court of Appeal summarized that test as follows: 19 The definitive test on a non-suit motion is set out in Prudential Securities Credit Corp, LLC v Cobrand Foods Ltd. , 2007 ONCA 425 , 85 OR (3d) 561, at para 35 : On a non-suit motion, the trial judge undertakes a limited inquiry. Two relevant principles that guide this inquiry are these. First, if a plaintiff puts forward some evidence on all elements of its claim, the judge must dismiss the motion.

Second, in assessing whether a plaintiff has made out a prima facie case, the judge must assume the evidence to be true and must assign 'the most favourable meaning' to evidence capable of giving rise to competing inferences. The Ontario Court of Appeal added at para 36: In other words, on a non-suit motion the trial judge should not determine whether the competing inferences available to the defendant on the evidence rebut the plaintiff's prima facie case. The trial judge should make that determination at the end of the trial, not on the non- suit motion. See John Sopinka, Sidney N. Lederman and Alan W.

Bryant, The Law of Evidence in Canada , 2d ed. (Toronto: Butterworths Canada, 1999) at 139. 20 In short, a non-suit application will fail if the plaintiff has adduced some evidence on each of the essential elements of her claim. In making this assessment, the trial judge does not weigh the evidence or assess credibility. Furthermore, the trial judge must assume that the plaintiff's evidence is true, and draw all reasonable inferences from it.

Finally, a trial judge's ruling on a non-suit is a matter of law which will be reviewed on the standard of correctness. [ 23 ] A point of greater controversy in the present case is the nature of the court’s authority to grant a non-suit application to dismiss only some of the issues then before the trial court.

The analysis of this issue begins with the language of r. 8.20: Application for dismissal at close of plaintiff’s case 8.20 At the close of the plaintiff’s case, the defendant may request the Court to dismiss the action on the ground that no case has been made, without being asked to elect whether evidence will be called. [Emphasis added]

[24] Nothing in the language of r. 8.20 creates an express authority on the part of the Court to dismiss only “part of the action”while allowing the remainder of the action to proceed to the conclusion of the trial. On this point, it will be noted that the language of r.8.20 differs from that of r. 3.68(1) and r. 7.3(1), which address other mechanisms for disposing of a claim without a full trial: 3.68(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following: (

a) that all or any part of a claim or defence be struck out; [...] 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded. [Emphasis added] [25] Where a statute contains different wording with respect to related subject matters, it is generally presumed that the legislatureintended different meanings.

As Professor Ruth Sullivan writes in Sullivan on the Construction of Statutes, 5th ed. (LexisNexis CanadaInc: Markham, 2008) at 216: “Given the presumption of consistent expression, it is possible to infer from the use of different words or adifferent form of expression that a different meaning was intended.” These words were quoted with approval in Envision EdmontonOpportunities Society v.

Edmonton (City), 2012 ABCA 188 at para. 28. [26] An application of the “different words, different meaning” rule to r. 8.20 supports the conclusion that a defendant may onlybring a non-suit application in respect of “the action” – i.e. the entire action – as opposed to “part of a claim” or “a claim or part of it”. [27] The differences in wording amongst the rules quoted above may be attributable to fact that those rules come into play atdifferent stages of the litigation process. Whereas striking out and

summary judgment applications can be brought at the early stages ofan action, thereby potentially avoiding years of costly litigation, a non-suit application is brought when the action is almost over. If a trialmust proceed to its conclusion in any event, a comparatively small amount of savings will be achieved by dismissing some constituentpart of that trial. [28] The restrictive language of r. 8.20 (and the former r. 260, which was identically worded) may also have been drafted in lightof the common law’s reluctant attitude towards non-suit applications in trials involving multiple defendants.

That attitude is reflected, forexample, in Protopappas v B.C. Elec. Ry., (BC SC), [1946] 1 DLR 271 (BCSC), aff’d (BC CA), 62BCR 218 (CA), where Wilson J. (as he then was) addressed a non-suit application brought by only one of two co-defendants: My conclusion is that under our present statute law, and in circumstances such as exist in the present case, a Judge cannot safely orproperly entertain, at the end of the plaintiff’s case, a motion for non-suit by one defendant.

I think he can only consider such anapplication where the plaintiff has failed to establish any sort of prima facie case against either defendant and he must, of course, in thatevent, absolve both defendants.

See also: McCarroll v Powell, (ON CA), [1955] 4 DLR 631 (Ont CA) at p. 635-36; Hunt v MacLeod ConstructionCo., (SCC), [1958] SCR 737 at p. 742; Hummerstone v Leary, [1921] 2 KB 664 at p. 275. [29] The common law rule recognized in Protopappas has most often been applied in negligence actions where one or more of theremaining co-defendants may seek contribution from the co-defendant asking to be released from the trial.

It has also been held that anexception to that rule exists “where it is clear that no evidence led by the remaining defendants could result in liability attaching to thedefendants seeking the non-suit”: Nattrass v Weber, 2007 ABQB 577 at para. 19. However, in J.

Sopinka, The Trial of an Action(Toronto: Butterworths, 1981) at pp. 129-30, Justice Sopinka opines that the rule applies beyond that limited context: It is submitted that the rule is not limited to negligence actions but applies in any case involving multiple defendants in which dismissalagainst one defendant may prevent justice being done when the whole of the evidence has been heard. [30] Notwithstanding the common law’s reluctant attitude towards non-suit applications in trials involving multiple defendants,and notwithstanding the words “the action” in r. 8.20, there are many cases under both r. 8.20, r. 260, and the corresponding rules ofother provinces where only some of the defendants before the court have been released from a trial on the basis of a non-suit application.One such case is the decision of Greckol J. (as she then was) in Nattrass.

It would therefore seem to be broadly accepted that “theaction” may be dismissed pursuant to r. 8.20 against only some of the defendants in the action. [31] In Canadian Pacific Rwy.

Co. v Saskatchewan, 2022 SKQB 31, Kilback J. considered the court’s authority to dismiss part ofa damages claim pursuant to Saskatchewan’s r. 9-26, which is identically worded to Alberta’s r. 8.20, and concluded as follows: 36 On a plain reading of these Rules, an application may be made under Rule 9-26 to dismiss an action (a civil proceeding commencedby statement of claim); not a claim for a subset of damages claimed in an action. [...] 45 These passages [from K. v Miazga, 2003 SKQB 451] support the conclusion that Rule 9-26 means exactly what it says – it permits adefendant to request the dismissal of an action or specific causes of action.

The focus of the Rule has always been on avoiding protractedlitigation by determining the outcome of the trial at the end of the plaintiff's case, or on expediting the trial by dismissing a cause ofaction against one or more defendants.

[...] 49 For these reasons, I conclude an order cannot be made under Rule 9-26 to dismiss a portion of a response to request for particulars; only to dismiss an action or a cause of action.

In the circumstances of this case, I conclude it is not appropriate to grant a non-suit in relation to CPRC's claim for recovery of provincial sales tax on certain services where a prima facie case is met in relation to provincial sales tax in general. [ 32 ] Justice Kilback in Canadian Pacific Rwy. also concluded that it was necessary to exercise the authority contained in Saskatchewan’s r. 9-26 “ in the overall context of efficiency and proportionality reflected in foundational Rule 1-3”, being Saskatchewan’s counterpart to Alberta’s foundational r. 1.2. [ 33 ] I generally agree with the approach adopted by Justice Kilback in Canadian Pacific Rwy. , and I particularly agree that the Court’s authority to grant a non-suit application includes an element of discretion that is informed by such foundational principles as efficiency and expediency.

Rule 8.20 states that a defendant “may request” the Court to dismiss the action at the close of the Plaintiff’s case. Nothing in the language of that rule suggests that the Court “shall” or “must” grant such an application in each and every case where the test in Capital Estate Planning is met with respect to some part of an action.

In some circumstances, granting such an application may not be in the overall interests of justice. [ 34 ] Assuming without deciding that the Court’s authority under r. 8.20 to dismiss “the action” includes an authority to dismiss “part of the action”, the applicable case law confirms that fairness and efficiency concerns may often be implicated by “partial non-suit applications”.

Although this issue has most often arisen in actions where multiple defendants are seeking contribution for negligence, I conclude that the Court enjoys a general discretion under r. 8.20 to deny a “partial non-suit application” where such an order would, in Justice Sopinka’s words, “prevent justice being done when the whole of the evidence has been heard”. A.

Application of Legal Principles to the Circumstances of this Case [ 35 ] Having considered all of the circumstances of this case, I have concluded that it would not be in the interests of justice to grant the Defendants’ application to dismiss all or part of Action #2, and to then proceed with whatever remains of the trial. I therefore conclude that the Defendants’ application must be denied. The case-specific considerations which I have found to be of particular importance to this conclusion are these: (

a) Although the two actions now being tried have never been formally joined, they are, for all practical intents and purposes, one action. All or substantially all of the facts pleaded in Action #1 are repeated in the pleadings in Action #2. Since the commencement of Action #2, most if not all of the steps taken in the two actions (such as document production, discoveries, applications, and trial) have proceeded in both actions simultaneously. (

b) Since the Defendants have only applied to dismiss all or a part of Action #2, this non-suit application does not have the potential to bring this trial to an immediate end. Although some savings in trial time could potentially be achieved by the order sought, the savings would not be in the range of weeks or months. Based upon my review of the current trial schedule, I estimate that this application has the potential to save 1-3 days of trial time out of the scheduled 6 weeks. (

c) Placed in the context of the entire history of this dispute, 1-3 days of trial time represents “a drop in the bucket”. This dispute has been ongoing for more than 40 years . The proceedings in this Court alone have been ongoing for more than 18 years . Mercifully, this dispute is now nearing a final resolution, subject only to appeal. An investment of a few additional days of trial time to achieve one full and fair resolution of all the outstanding issues seems justified. (

d) All of the Defendants in both actions are represented by the same lawyers. Granting the Defendants’ application would not result in the immediate release of any expensive lawyers or teams of lawyers from this trial. (

e) The Defendants concede that the Plaintiff’s case in Action #1 is sufficiently supported by the evidence to require a full trial. In my view, the issues in Action #2 cannot be disentangled from the issues in Action #1. As a result, many of the issues raised in Action #2 would have to be litigated to the end of the trial anyway. (

f) Since all or substantially all of the factual allegations in Action #1 are also raised in Action #2, an order granting a partial non-suit application would create a significant risk of inconsistent determinations with respect to the same issues. (

g) There exists a risk that any savings achieved by granting a partial non-suit application would be quickly surpassed by the additional costs and inconvenience created by two largely duplicative appeal streams. (

h) Since there is no jury in this trial, there is a greatly reduced risk that the trier of fact will find the Defendants in Action #2 liable despite the absence of any case to be met. (

i) Insofar as the non-suit application relates to Ms. Unger, she is a Defendant and a central figure in both actions. All of the issues in both actions involve Ms. Unger to some degree. The Defendants’ application to dismiss Action #2 as against Ms. Unger does not have the potential to release Ms. Unger from being put to her election in the ongoing trial. (

j) If a partial non-suit application order were to be granted with respect to some or all of the Defendants in Action #2, there exists at least a theoretical possibility that the remaining Defendants would seek to deflect blame towards the released Defendants. In saying this, I agree with both sides that this risk is relatively low in the particular circumstances of this case. IV. Conclusion

[ 36 ] For these reasons, the Defendants’ application to dismiss Action #2 is denied. [ 37 ] I emphasize that I have declined to apply the test in Capital Estate Planning to Action #2, and so have made no assessment or determination respecting the viability of the claims in that action. Heard on the 9 th day of March, 2023. Dated at the City of Edmonton, Alberta this 14 th day of March, 2023. N.J. Whitling J.C.Q.B.A. Appearances: Robert P. Lee Victims Rights Law for the Plaintiff Tara Argent and Colten Harrish McLennan Ross LLP for the Defendants