LC v Alberta (Child Welfare), 2023 ABKB 586

Court of King’s Bench of Alberta Citation: LC v Alberta (Child Welfare), 2023 ABKB 586 Date: 20231017 Docket: 0703 10836 Registry: Edmonton Between: The Office of the Child and Youth Advocate and Terri Pelton Applicants - and - LC and EMP Respondents (Plaintiffs) - and - His Majesty the King in Right of Alberta as represented by the Director of Child Welfare Defendant _______________________________________________________ Decision on Application by Child and Youth Advocate of the Honourable Justice Robert A. Graesser _______________________________________________________ Introduction

[ 1 ] The Applicants apply to set aside the Notice of Appointment for Questioning of Terri Pelton and to dispense with the Respondents’ application filed June 2, 2023 to compel Ms. Pelton to attend questioning and mandating the Office of the Child and Youth Advocate (the “OCYA”) to produce certain records. [ 2 ] The Respondents seek to compel the attendance of Ms. Pelton and the production of records identified on this application. [ 3 ] These applications were heard by way of the exchange of written submission without an oral hearing.

Background [ 4 ] These competing applications arise in the context of ongoing discovery in this class proceeding. Since the Respondents’ application was filed in June 2023, a case management meeting was held to prioritize various applications already filed and waiting to be heard, as well as to discuss unfiled applications contemplated by both parties.

At the case management conference Counsel for the Defendants advised that the Defendants were prepared to admit liability under Common Issue 1, namely that the Director’s failure to prepare or file a plan of care in Court, as required by the Child Welfare Act in Alberta a breach of a duty of care in negligence. [ 5 ] This admission has undoubtedly changed the scope of ongoing discovery.

Another pending application is to attempt to determine the “real issues in dispute”, as it is obvious that the Parties have widely different ideas as to the issues that need to be determined in this class proceeding. [ 6 ] On June 2, 2023, Mr.

Lee filed a Notice of Application seeking an order directing the Children’s Advocate to produce records from 2004 regarding the protection of the legal rights of children in care who have been harmed (the “Records”), as well as an order directing the Child and Youth Advocate to attend to be questioned in the action. [ 7 ] In correspondence leading up to the July10 case management conference, Mr.

Lee advised that the OCYA was taking the position that production of records and questioning the Advocate is not permitted under the provisions of the Child and Youth Advocate Act , SA 2011, c C-11.5 (the “ Act ”). [ 8 ] Mr. Lee’s position was that the records sought were created before the Act and if the Advocate cannot testify, then another employee or officer of the OCYA should be designated to be questioned. [ 9 ] I will proceed on the basis that the Records were created in the timeframe alleged, and that they still exist in some form, in some place, under someone’s control.

Legislation [ 10 ] The current legislation governing the OCYA is the Act . The OCYA is described as an independent office of the Legislative Assembly. The Act came into force in 2012. [ 11 ] At the time the Records were created, the relevant legislation was the Child, Youth, and Family Enhancement Act , RSA 2000, c C-12 (the “ CYFEA ”).

The Children and Youth Advocate was appointed by the Lieutenant Governor in Council and reported to the Minister of Children’s Services. [ 12 ] There is nothing in the CYFEA that shelters anyone under that legislation, including the Advocate, from being called on to testify in any type of proceedings. [ 13 ] Confidentiality of information is provided for in s 126: 126 Confidentiality

(1) The Minister and any person employed or assisting in the administration of this Act , including an agency providing services on behalf of a director, may disclose or communicate personal information that comes to the Minister’s or person’s or agency’s attention under this Act only in accordance with the Freedom of Information and Protection of Privacy Act , in proceedings under this Act , in accordance with

Part 2, Division 2 or this Part or as follows: (

a) to any person or organization, including an agency providing services to a child, if the disclosure is necessary to plan services for or provide services to the child or the child’s family or to plan or provide for the day-to-day care or education of the child; (

b) to the guardian of the child to whom the information relates or the guardian’s lawyer; (

c) to the child to whom the information relates or the child’s lawyer; (

d) to any person employed in the administration of child protection legislation in another province or territory of Canada; (

e) to any person with the written consent of the Minister. (2) [Repealed 2003, c. 16 s. 108(b) .]

(3) Notwithstanding subsection (1), no information shall be disclosed or communicated pursuant to this

section without the consent in writing of the Minister of Justice and Solicitor General or that Minister’s agent if that information was provided by an agent of the Minister of Justice and Solicitor General.

(4) A director may collect and use personal information, including Health Information Act and personal information for the purposes of conducting an assessment or an investigation or providing services under this Act .

(5) No liability attaches to the Minister or any other person who discloses or communicates information in accordance with this

section if

the disclosure or communication is made in the administration of this Act or for the protection of the child. (6) [Repealed 2003, c. 16, s. 108(c) .] [ 14 ] As can be seen,

section 126 protects “personal information” from being disclosed except in accordance with the Freedom of Information and Protection of Privacy Act , RSA 2000, c F-25 , or to the child to whom the information relates of the child’s lawyer (subsection c), or to any person with the written consent of the Minster (subsection e). [ 15 ]

Section 126.11(2) states: Despite

section 126 but subject to

section 126.1, a party to a civil matter under this Act or any other Act , including a matter where the director is a party, any apply to the court hearing the matter for disclosure of a record or part of a record that contains information held under this Act . [ 16 ] That

section provides for an elaborate process, including the requirement that if the Court orders production of any records applied for, the Court must first “examine it in private” (subsection (9). [ 17 ] The Act was proclaimed in force on April 1, 2012. It contains no provisions regarding retroactive effect, nor for example does it purport to provide protection against lawsuits for anything done before the coming into force of the Act , or by any Advocates appointed under the CYFEA . [ 18 ]

Section 17 makes the Advocate a non-compellable witness: 17

(1) The Advocate and a person employed or engaged under section 8(1) or (2) must not give or be compelled to give evidence in an action in respect of any matter coming to their knowledge in the exercise of powers and the performance of duties and functions under this Act , except (

a) to enforce the Advocate’s powers of investigation, (

b) to enforce compliance with this Act , or (

c) in a prosecution for perjury.

(2) Notwithstanding subsection (1), the Advocate and a person employed or engaged under section 8(1) or (2) may give, but must not be compelled to give, evidence in an appeal under

section 120 of the Child, Youth and Family Enhancement Act or any further appeal. [ 19 ]

Section 18 provides for restrictions on disclosure of information and records: 18(1) The following information, records and reports are privileged and not admissible in evidence in an action, except in a prosecution for perjury: (

a) anything said, any information supplied or any record produced during an investigation under section 9(2)(

d) or a review under

section 9.1; (

b) any report made under section 15(1) or 15.4.

(2) The name of a person who makes a report under

section 4 or 5 of the Child, Youth and Family Enhancement Act that is made available to the Advocate during an investigation under section 9(2)(

d) or a review under

section 9.1 and information that would identify that person are privileged information of the person making the report.

(3) The Advocate shall not disclose the privileged information referred to in subsection (2) without the consent of the person. 18.1(1) The Advocate and anyone acting for or under the direction of the Advocate shall not disclose any information or records obtained in performing their duties, powers, and functions under this Act , except as provided in subsection (2).

(2) The Advocate may disclose, or may authorize anyone acting for or under the direction of the Advocate to disclose, information or records that are necessary for the purposes of (

a) conducting an investigation under section 9(2)(

d) or a review under

section 9.1, or (

b) establishing the grounds for findings and recommendations contained in a report under this Act .

(3) In conducting an investigation under section 9(2)(

d) or a review under

section 9.1 and in making a report under this Act , the Advocate and anyone acting for or under the direction of the Advocate must take every reasonable precaution to avoid disclosing, and shall not disclose, any information or records that would reveal confidential law enforcement information or records obtained in accordance with any protocol under

section 9.3. Positions [ 20 ] The Advocate and the OCYA oppose production of the records on a number of grounds: 1. Rule 5.17 does not apply and the OCYA is not adverse in interest to the Plaintiffs;

2. The requirements of Rule 5.13 have not been met ; 3. The Act is subject to the presumption of immediate application as it is a procedural statute; and 4. All litigants must adapt when the rules of procedure change. Once the Act came into force, questioning the OCYA’s employees was strictly forbidden; once Ms. Pelton was appointed as Advocate, she could no longer be compellable as a witness. [ 21 ] The Plaintiffs argue that: 1. The requested records are relevant; 2. The requirements of the Rules of Court have been met; and 3. The Act does not have retroactive effect. Analysis Rule 5.17 does not apply and the OCYA is not adverse in interest to the Plaintiffs; [ 22 ] Rule 5.17 provides: 5.17

(1) A party is entitled to ask the following persons questions under oath about relevant and material records and relevant and material information: (

a) each of the other parties who is adverse in interest; (

b) if the party adverse in interest is a corporation, (

i) one or more officers or former officers of the corporation who have or appear to have relevant and material information that was acquired because they are or were officers of the corporation, and (ii) the corporate representative; (

c) if a litigation representative is appointed for a party, (

i) the litigation representative, and (ii) with the Court’s permission, the person on whose behalf the litigation representative is appointed if that person is competent to give evidence; (

d) one or more other persons who are or were employees of the party adverse in interest who have or appear to have relevant and material information that was acquired because of the employment; (

e) an auditor or former auditor engaged by a party adverse in interest, but not an auditor or former auditor engaged solely for the purpose of the action; (

f) if a partnership is a party adverse in interest, a partner or former partner of the partnership; (

g) in an action with respect to a negotiable instrument or chose in action, (

i) an assignor of the negotiable instrument or chose in action, (ii) a prior endorser, drawer, holder or maker of the negotiable instrument, and (iii) an employee or former employee of an assignor of the negotiable instrument or chose in action, and if the assignor is a corporation, an officer or former officer of the corporation.

(2) If a questioning party questions more than one person of a party adverse in interest under subrule (1) and the person questioned is (

a) an officer or former officer of a corporation described in subrule (1)(b)(i), (

b) an employee or former employee of the party adverse in interest described in subrule (1)(d), (

c) an auditor or former auditor described in subrule (1)(e), (

d) a partner or former partner of a partnership referred to in subrule (1)(f), or (

e) an employee, former employee, officer or former officer described in subrule (1)(g)(iii), other than a corporate representative, the costs of questioning the second and subsequent persons are to be paid by the questioning party unless

(

f) the parties otherwise agree, or (

g) the Court otherwise orders.

(3) This rule applies whether the person to be questioned is within or outside the Court’s jurisdiction. [ 23 ] The Applicants cite Golden Estate v Neilson , 2011 ABCA 338 , Wilbur v Miller , 2005 ABCA 220 , and K.G. (Re) , 2013 ABPC 123 n support of their positions. [ 24 ] Golden Estate involved an application by the Defendants to compel the deceased plaintiff’s mother and spouse to attend for questioning. There is absolutely no parallel between that case and the case at bar. [ 25 ] Wilbur v Miller involved similar fact to Golden .

It is not helpful here. [ 26 ] Re KG states at paras 122 and 123: [122] A recent report from Alberta's Office of the Child and Youth Advocate was both disturbing and informative. [123] The Child and Youth Advocate is an independent office deriving its authority from the Child and Youth Advocate Act , SA 2011, c C-11.5 . The office reports directly to the Alberta Legislature.

One of the Advocate's roles is to investigate systemic issues implicated in the serious injury to or death of a child who was receiving a designated service at the time of the injury or death if, in the opinion of the Advocate, the investigation is warranted or in the public interest.

The purpose of an investigative review is to make findings regarding the services that were provided to the young person, and make recommendations that may help prevent similar incidents from occurring on the future. [ 27 ] If anything, that case emphasizes the value of the work done by the Advocate and supports arguments that their work may be very relevant and material to “services provided to the young person”. It supports the positions taken by the Plaintiffs.

Adverse in interest [ 28 ] The Advocate and the OCYA argue that the Advocate and the OCYA are not another party “adverse in interest” to the Plaintiffs. [ 29 ] That position assumes that the OCYA is a legal entity separate from the Government of Alberta. No authority was submitted on that point. It is clear that the OCYA is separate from the Ministry of Children and Family Services, and that the Advocate does not report to the Minister of that Department or under the CYFEA .

That has been the case since April 1, 2012. [ 30 ] Before that date, the Advocate reported to the Minister of Children and Family Servies and the OCYA was part of the Ministry of Children and Family Services. [ 31 ] Until April 1, 2012, the Advocate and any other officer or employee or past Advocate or officer or employee of the OCYA was compellable to testify in any proceeding, just like any other government officer or employee. [ 32 ]

Section 11 of the Proceedings Against the Crown Act , RSA 2000, c P-25 states: 11 In proceedings against the Crown, the Alberta Rules of Court as to production and inspection of records and questioning apply in the same manner as if the Crown were a corporation, except that the Crown may refuse to produce a record or to make answer to a question in questioning on the ground that the production of it or the answer would be injurious to the public interest. [ 33 ] For the purposes of that Act , “Crown” means “His Majesty in Right of Alberta” and “officer” includes a Minister of the Crown and any servant of the Crown”. [ 34 ] The Act does not contain a provision similar to that in the Public Trustee Act , RSA 2000, c P-44 .1, in which section 42(1) provides that “no action lies against the Crown for any claim arising out of

an act or omission of the Public Trustee”. [ 35 ] Subject to the balance of Rule 5.13 dealing with the person sought to be questioned having relevant and material information that was acquired because of their employment by the Crown (ss (d)) and other attendance requirements, there is nothing pre- Act that would have prevented Ms.

Pelton or any other officer or employee or former officer or employee (including former Advocates) from the OYCA from being questioned. [ 36 ] Were the OYCA to be somehow considered independent from the Crown (which is not the case), attendance for questioning could likely be secured in any event using the “near employee” provisions of Rule 5.18. If someone is not included in Rule 5.17, Rule 5.18 provides for the questioning of “near” employees or officers: 5.18 (1 ) Subject to subrules (2) and (3), if (

a) a party cannot obtain relevant and material information from an officer or employee or a former officer or former employee of a corporation or partnership that is a party adverse in interest, (

b) it would be unfair to require the party seeking the information to proceed to trial without having the opportunity to ask questions about the information sought, and

(

c) the questioning will not cause undue hardship, expense or delay to, or unfairness to, any other party or to the person to be questioned, the party may question, under oath, a person who has provided services for the corporation or partnership and who can provide the best evidence on the issue.

(2) A person described in subrule (1) may be questioned only (

a) by written agreement of the parties, or (

b) with the Court’s permission.

(3) An expert engaged by a party for the purposes of the action may not be questioned under this rule.

(4) Evidence from a person questioned under this rule is to be treated as if it were evidence of an employee of the corporation or partnership.

(5) The costs related to questioning a person under this rule are to be borne by the questioning party unless (

a) the parties otherwise agree, or (

b) the Court otherwise orders. [ 37 ] In any event, I conclude that no valid objection to Ms. Pelton’s proposed questioning can be made on the basis that the Advocate and the OYCA are not “adverse in interest” to the Plaintiffs. No relevant and material information [ 38 ] The Advocate and the OYCA argue that the Plaintiffs have not established that they have any relevant and material information. I note that HMTK has taken not

part in this application. The Applicants have only just become involved in this litigation, which has been ongoing since 2006. It is understandable that they have limited information and knowledge about the lawsuit, and what the issues are. [ 39 ] In LC v Alberta , 2016 ABQB 151 , I certified a number of common issues at para 228: 1. Is the failure to prepare and file a care plan as required by the Child Welfare Act or to prepare a concurrent plan as required by the Child Youth and Family Enhancement Act breach of duty by the Director to such child giving rise to a cause of action in damages? 2.

When a TGO has become void by the Director’s failure to prepare and file a care plan or prepare a concurrent plan under 1 above, is the child’s continued custody by the Director: a. A breach of the Child’s s 9 Charter rights to be free from arbitrary detention; b. A breach of the Child’s s 7 Charter rights to only be separated from his or her parents by lawful government authority; c. An unlawful detention of the child; or d. Some or all of the above. 3. In the circumstances described above, what damages, if any, is such child entitled to? 4.

Did HMQ owe a duty to children described above to consider the commencement of proceedings against the Director for his failure to file care or concurrent plans? 5. If so, what damages if any is a child entitled to as a result of such failure? 6. Is the detention of a child following the expiry of a PGO in the circumstances described above a breach of a parent or guardian’s right to only have his or her child removed and detained by the government under lawful authority? 7.

In the circumstances described in para 4 above, what damages, if any, is such parent or guardian entitled to? [ 40 ] While HMTK was partly successful on its appeal from that decision ( 2017 ABCA 284 ), the Court of Appeal narrowed the time frame for the class proceeding, but not the issues. Scope of documents requested [ 41 ] The records sought by the Plaintiffs were initially described as records relating to the OCYA annual report for 2004/2005 relating to children having possible lawsuits against HMTK. [ 42 ] In the Plaintiffs’ application filed June 2, 2023, they seek:

(

a) All records from, to, and created pursuant to the request by the Ministers of Child Welfare and Alberta Justice regarding steps to take when a child in care has a possible lawsuit; (

b) All records regarding the children’s Advocate – Legal Representation for Children and Youth department which in any way are related to the investigation, analysis and decision regarding the role that the children’s Advocate would have in assisting children in the care of the government’s legal rights. In particular all records touching on the issue of why the children’s Advocate did not take on any role in assisting children in care who had a possible lawsuit.

All records related to the time period that Children’s Advocate retained Dentons Canada LLP and all records related to Dentons Canada LLP’s involvement with providing legal advice to the Children’s Advocate regarding children in care of HMTK that had a possible lawsuit prior to December 15, 2021. [ 43 ] I will characterize the records in (

a) above as the “Initial Advice Documents”, and the records in (

b) above as the “Subsequent Documents”. Initial Advice Documents [ 44 ] The Applicants cite Dreco Energy Services Ltd v Wenzel , 2009 ABQB 574 , where Greckol J (as she then was) held that Rule 5.13 required that the requested documents be defined with specificity or adequately described. [ 45 ] The Plaintiffs were there seeking production of bank records belonging to a third party with the hope that the records would show financial support being given to that company by the Defendant. [ 46 ] The situation in this case is entirely different.

Firstly, the Plaintiffs are seeking documents that the Defendant gave to the Applicants. Secondly, the Applicants are not true third parties in that they are part of the “Crown”. [ 47 ] Issue 4 is clearly engaged by Mr. Lee’s request for records relating to HMTK’s request that the Advocate look into the issue of what HMTK ought to do when a child in care has a possible lawsuit against HMTK, namely the Initial Advice Documents.

These Records obviously exist, because the Applicants’ brief states at para 60 “the Report (referencing the Report prepared by the Advocate) clearly states that the Public Trustee is the proper entity to have responsibility for children in care who had lawsuits”. [ 48 ] The issue of children in care suing third parties has been addressed in TL v Alberta (see LC v Alberta , 2016 ABQB 151 at para 166 ) in which it was made clear that that class proceeding was not considering the alleged failure of HMTK to sue itself in situations where its actions, or the actions of people it was responsible for, caused harm to children in care.

That has long been the focus of this class proceeding. [ 49 ] A logical consequence of that is questioning the Advocate or someone else from the OYCA on issues such as how did the Advocate come to that conclusion? And what documents and records did the Advocate rely on to come to that conclusion? [ 50 ] I am satisfied that the Initial Advice Documents exist. I do not know how the Plaintiffs could provide any better description of what they are looking for. [ 51 ] In the ongoing litigation, it will certainly be relevant to ask HMTK what they did or did not do with that information.

I note that the Child and Youth Advocate Regulation , AR 53/2012 was amended by AR 250/2017 to empower the Advocate to appoint or cause to be appointed a lawyer to represent a child in certain circumstances. [ 52 ] I need not belabour the issue of relevance and materiality. These records appear to go to the heart of a live issue, and questioning on them would automatically flow from that. [ 53 ] Mr. Lee’s brief dated August 31, 2023 outlines the difficulties he has had in obtaining relevant and material information from HMTK in various lawsuits he has pursued against Child Welfare.

He argues that production of these records from the Applicants is necessary as HMTK has not been forthcoming in producing them despite being required to complete an affidavit of records. [ 54 ] His Supplementary Reply Brief dated September 8, 2023 (following my decision in LC v Alberta , 2023 ABKB 523 concerning the attendance of former Ministers Forsyth and Tarchuk) argues that decision reinforces his arguments as to the relevance of the information he is seeking from the Applicants as well as the likelihood that Ms.

Felton has relevant and material information concerning communications between HMTK and the Advocate in 2004. [ 55 ] I conclude that any proposed questioning on the Initial Advice Documents is not contrary to Rule 5.17. Subsequent Documents [ 56 ] The Subsequent Documents are problematic to some degree. There is no certainty that any of these documents exist. Only the Applicants and the Defendant know that. The Defendant has not produced any such records, and there is an application outstanding for production of a better Affidavit of Records.

Considering the history of this file and my lengthy case management of it I cannot conclude that the failure of HMTK to produce any such documents means that no such documents exist. [ 57 ] Ongoing communications, if there were any, between the Applicants and HMTQ as to the issue of suing for Government wrongs allegedly done to children in care would be relevant for the same reasons as above.

Records dealing with possible claims against the Government and how those situations were handled by the Applicants would also be relevant, assuming any such claims were referred to the Applicants and any records exist. [ 58 ] I am mindful of the Applicants’ argument that the Plaintiffs’ application should not be a fishing expedition, but there are two responses to that.

Firstly, it would be a logical assumption that there may have been ongoing communications between the Applicants and HMTQ having regard to the fact that a report was made and the Advocate concluded that the Public Trustee should be responsible for these issues.

[59] Secondly, the Applicants will know, or can inform themselves, if they were consulted in situations where possible claimsagainst HMTQ were being considered. That is information that is available to the Applicants, but not easily or in a timely way accessibleto the Plaintiffs because of the enormous difficulties they have had getting records from Child Welfare to date, whether through FOIPPor requests under

section 126.11 of the CYFEA. [60] I cannot see that any records relating to Dentons Canada LLP’s involvement with providing legal advice would be anythingbut subject to solicitor and client privilege. I see no basis for the Applicants to be required to disclose communications between them andtheir solicitors. I will refer to these as the “Legal Advice Documents”. [61] If any of the other records in the Subsequent Documents exist, I am satisfied that they are relevant and material to commonissue 4. Hereafter, I will refer to these as the “Relevant Subsequent Documents”.

The requirements of Rule 5.13 have not been met [62] Rule 5.13 provides: 5.13(1) On application, and after notice of the application is served on the person affected by it, the Court may order a person who is nota party to produce a record at a specified date, time and place if (

a) the record is under the control of that person, (

b) there is reason to believe that the record is relevant and material, and (

c) the person who has control of the record might be required to produce it at trial.

(2) The person requesting the record must pay the person producing the record an amount determined by the Court. [63] The Applicant say that Ms. Pelton personally has no such records in relation to the Report, and therefore there are no recordsto be compelled. This position appears to relate to the Initial Advice Documents. I would have expected such a statement to be containedin an affidavit rather than a submission by counsel. That bald allegation does not answer the question as to whether Ms. Pelton has accessto any such records or control over them.

I assume that in her capacity as Advocate the answer is that she does. Of course a Governmentemployee does not “personally” have records belonging to their employer. They may well have access to such records which shouldgenerally suffice to require a compellable witness to bring such records to court with them. [64] If Ms. Pelton as Advocate does not have access to or control over the Initial Advice Records from the OYCA before itbecame independent from the Ministry, she should swear or affirm to that in an affidavit. [65] The Applicants do not deal with the Relevant Subsequent Documents in their materials.

If any exist, they are producible. Ifthey do not exist, Ms. Pelton should address that in an affidavit. [66] To the extent that the Applicants or either of them have possession of or control over the any of the records sought in thePlaintiffs’ application but for the Legal Advice Documents, they are clearly producible under Rule 5.13. [67] If the pre-April 2012 records from the OYCA were retained by the Ministry of Children and Family Services and are not inthe possession or control of the OYCA, I hope it will not be necessary for Mr. Lee to make an application to have these records producedby HMTK.

Any such records were created at a time when the Advocate was clearly an employee or officer of the Crown. And in anyevent, it would be a reasonable assumption that HMTK has in its records the originals or copies of whatever the Minister or the Directorof Child Welfare gave to the Advocate so they could investigate the issue. If they no longer have such records, they can clearly make arequest that the OYCA return them or provide copies of anything retained by the OYCA.

Section 126 of the CYFEA [68] I am not satisfied that any of the records sought contains any personal information, which is the basis for confidentiality underthe CYFEA. Again, to advance this argument, I would have expected Ms. Pelton to have reviewed the records and determined that therewas personal information involved. [69] The Plaintiffs’ application does not on its face seek anything that would appear to identify any child but rather seeks whatappears to be a process or procedural study by the Advocate.

That said, the Relevant Subsequent Documents may contain personalinformation which would not appear to be relevant or material. [70] If there is a legitimate concern that any of the records sought contain any such information, they can be dealt with inaccordance with the application provisions in s 126.11 by way of redacting any personal information. If that remains an issue someonewill have to do the necessary review and eventually submit the records to me for a review under s 126.11.

The Act [71] The Applicants argue that the Act is a purely procedural law and they rely on R v Dineley, 2012 SCC 58, R v Chouhan, 2021SCC 26, Sun Alliance Insurance Company v Diane Hart Angus, (SCC), EA Driedger, “Statutes: Retroactive,Retrospective Reflections”, (1978, 56 Can Bar Rev 264, for the principle that purely procedural law operations from the moment of itsenactment and regardless of the timing of its enactment or the facts in question. As such, the procedural law will be presumed to apply

immediately to pending and future cases. [ 72 ] In Dinelely , the Criminal Code had been amended to limit the accused’s ability to adduce evidence to raise doubt about the reliability of breathalyzer test results. The amendments were held to relate only to the rules of evidence which apply at trial and were purely procedural. [ 73 ] Chouhan dealt with amendments to the Criminal Code abolishing pre-emptory challenges to prospective jurors.

The majority in the Supreme Court of Canada held those amendments to be procedural and thus would have retroactive application. [ 74 ] In Angus , the Married Woman’s Property Act precluded spouses from suing each other in tort and the Insurance Act precluded recovery by the daughter, son, wife, or husband of the tortfeasor. Ms. Angus was injured in an accident caused by her husband while driving her father’s car. After the lawsuit was commenced, both Acts were amended. The Supreme Court held that the issue was whether the legislation affected a substantive right or not.

The right of the husband not to be sued was substantive, not procedural. [ 75 ] It is interesting to note that solicitor-client privilege had traditionally been characterized as a matter of procedure. That changed, however, in Lavellee, Rackel & Heintz v Canada (AB) , 2002 SCC 61 .

In that case, the Supreme Court of Canada considered the extent to which documents in the hands of a solicitor could be said to be privileged and protected against unreasonable search and seizure and found a substantive right to the privilege. [ 76 ] I am reluctant to characterize the confidentiality provisions here as being merely procedural. Under the CYFEA ,

section 126 gives children and their lawyers a right to all information that has been collected about them. The right is qualified by

section 126.11, but the argument that these provisions in the Act should be given retroactive effect ignores the first two presumptions in Dineley , namely that there is a presumption against retroactivity and another presumption that legislation does not intend to interfere with vested rights. [ 77 ] Another challenge with the application of these principles here, is that the confidentiality provisions and witness immunity provisions were not the result of a legislative amendment, but rather the passing of new legislation that is far more than procedural.

If these provisions had been added to the CYFEA buy way of an amendment, the Applicants would have a stronger argument that they should be applied retroactively to records that had already been created before the amendment. [ 78 ] In any event, I do not need to decide the point here. [ 79 ] The records in question were not created by the Advocate or anyone in the CYAO at the time. They were provided to the Advocate by HMTK. They were not confidential at the time, except to the extent that they might disclose personal information. [ 80 ] The Act does not purport to have any retroactive effect.

The records in the possession of the Advocate or the CYAO were not provided to them for any purpose under the Act . [ 81 ] Section 18(1) applies to information supplied or any record produced during investigations under section 9(2)(

d) or 9.1. The records were not produced under either such procedures. The privilege does not apply in any event. [ 82 ]

Section 18.1 refers to “information or records obtained in performing their duties, powers and functions under this Act ” (Emphasis added). The records were not obtained by the Advocate or their office for any purpose under the Act . [ 83 ] In my view, the Act has no application to anything done before the Act came into effect. If the Legislature intended to enact anything with the retroactive effect urged by the Applicants, it should have either done so under the CYFEA or done so expressly under the Act . [ 84 ] I conclude that for the purposes of these applications, the applicable legislation is the CYFEA .

That Act does not, provide privilege for any information other than personal information, and it creates a clear process for the production of its records for the purposes of litigation.

Attendance for Questioning [ 85 ] As to the attendance of the Advocate, section 17(1) clearly states that the Advocate “must not give or be compelled to give evidence in an action in respect of any matter coming to their knowledge in the exercise of powers and the performance of duties and functions under this Act .” (Emphasis added) [ 86 ] Again, there is nothing in the CYFEA that purports to shelter the Advocate or any employees from testifying for anything done under that Act .

Conclusion [ 87 ] The Application by the Advocate and the CYAO is dismissed. [ 88 ] If the Applicants have possession of or control over any of the records sought by the Plaintiffs, it should be disclosed in a reasonable time. If there are personal information concerns with any of the records, they may be addressed using the process in

section 126.11 of the CYFEA , starting at

section 125.11(9). [ 89 ] If the Applicants do not have possession or control of any of these records, they need to explain, by affidavit, what records they had and what happened to them.

[ 90 ] The Plaintiffs may in any event pursue an application requiring HMTQ to produce all of its records that were provided to the Advocate as described by the Plaintiffs. I cannot make an order in these applications as HMTQ was not a party to them and took no position on them. [ 91 ] Ms. Pelton is a compellable witness as a former employee of the CYAO, assuming that she was at the relevant time and had some knowledge or involvement in the work done by the Advocate on the issue. She may only be questioned on anything to the time the Act came into force.

She is not being questioned as the Advocate or as someone employed or engaged to do work under the Act . Ms Pelton is not compellable to testify as to anything done under the Act , but she enjoys no immunity beyond that. Comments and Costs [ 92 ] It is unclear to me why the Advocate and the OYCA would be taking such aggressive and adversarial positions on this application.

Their role is to independently represent the rights, interests and viewpoints of children (s 9(1)), not that of HMTK. [ 93 ] Their only role should have been to maintain their independence and to ensure that they were not being asked to do anything contrary to the provisions of the Act . [ 94 ] The irony here is that the Applicants are statutorily charged with protecting and enhancing the rights of children in an independent way. This action is focused on addressing now admitted wrongs against children in Government care. [ 95 ] Instead of only taking a position on the

interpretation of their home legislation, the Applicants characterize the Plaintiffs’ attempt to get information from them that is clearly relevant and material to live issues in this lawsuit, and which they have been unable to get directly from HMTK, as “vexatious”. Remarkably, they cite Unrau v National Dental Examining Board , 2019 ABQB 283 to support their argument that the Plaintiffs’ applications are vexatious, intended to cause harm, harass or annoy, and that they are frivolous, for no good reason or purpose. [ 96 ] Really? Unrau is a case about an OPCA litigant with likely mental health issues.

This is a case where the Plaintiffs claim that they have been stymied in obtaining relevant documents from someone that says they have them. [ 97 ] The Applicants suggest that Plaintiffs’ counsel is improper and seek to cancel the appointment as being unnecessary, improper, or vexatious under Rule 5.19 [ 98 ] They suggest that the Plaintiffs are abusing court process and that their application is contrary to the foundational Rules of Court. [ 99 ] Further, they make a personal attack on Plaintiffs’ counsel.

Without any evidentiary foundation, they allege that Plaintiffs’ counsel has “repeatedly contacted employees of the OCYA attempting to obtain information that is not within the public domain. This behavior is improper, harassing and an annoyance to the OCYA. I am sorry if the Advocate and the OCYA find requests for records that might show that HMTK has failed children in care to be annoying and harassing. Their certainty in their legal position on their application borders on arrogance.

As it can be seen, their position was unfounded. [ 100 ] I am satisfied that the Applicants’ personal attack on Plaintiffs’ counsel, which was irrelevant to the merits of the application and completely unsupported by any evidence, warrants enhanced costs. I am concerned about the recent trend to turn cost applications into elaborate, lengthy, and costly proceedings in themselves, so I will therefore set costs myself at double the appropriate column for a contested application with briefs. The parties may make written submissions to me on the column if they cannot agree.

Heard by way of written submissions dated August 28, 2012 (Applicants), August 31, 2023 (Plaintiffs’ Reply), and September 8, 2023 (Plaintiffs’ Supplemental Reply). Dated at the City of Edmonton, Alberta this 17 th day of October, 2023. Robert A. Graesser J.C.K.B.A. Appearances: K. Colleen Verville, KC MLT Aikins LLP

for the Applicants Robert P. Lee Victims Rights Law for the Respondents (Plaintiffs) Luciana P. Brasil Branch MacMaster LLP for the Third Party Did not appear