Ziolkoski v Unger, 2023 ABKB 675

Court of King’s Bench of Alberta Citation: Ziolkoski v Unger, 2023 ABKB 675 Date: 20231129 Docket: 0403 14625/0703 15607 Registry: Edmonton Between: 0403 14625 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 -and- Between: 0703 15607 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 and Overview [ 1 ] On August 30, 1980, when the Plaintiff, Helen Ziolkoski, was 19 years of age, she was the victim of a sexual assault perpetrated against her by six men. The crime occurred in the Province of Alberta, near a side road west of Highway 23 between Barons and Lethbridge.

The Plaintiff reported the assault to the RCMP immediately after its occurrence, and at least two of the perpetrators were convicted and sentenced for its commission. [ 2 ] The Plaintiff was severely injured by the sexual assault, both physically and psychologically. The Plaintiff’s injuries, which included Post-Traumatic Stress Disorder, seriously compromised her ability to carry on gainful employment throughout the remainder of

her life. [ 3 ] The Plaintiff is now deceased, and the present actions are pursued by her estate pursuant to the Survival of Actions Act , RSA 2000, c S-27 . By operation of s. 5(1) of that Act, her claim is limited to “actual financial loss”, such as lost income during her lifetime. [ 4 ] These reasons address the issues that arose for determination at the trial of two actions. Action No. 0403 14625 (Action #1) was commenced on July 24, 2004. The current Defendants in Action #1 are Linda Unger, Boris Nahornick, Terrence Nugent, His Majesty the King in Right of Alberta, and John Doe.

Action No. 0703 15607 (Action #2) was commenced on December 3, 2007. The current Defendants in Action #2 are Lionel Whittaker, His Majesty the King in Right of Alberta, Linda Unger, Cal Wrathall, and John Doe. [ 5 ] None of the six criminals who assaulted the Plaintiff in 1980 are Defendants in these actions. [ 6 ] Aside from His Majesty the King in Right of Alberta and the two “John Does” (who have never been identified), the Defendants are individuals who were responsible for administering various aspects of Alberta’s victims of crime compensation program between approximately 1982 and 2002.

Each was involved in dealing with the Plaintiff’s applications for compensation for her injuries from the sexual assault of 1980. The Plaintiff now sues these Defendants for the tort of misfeasance in a public office, as defined in the leading case of Odhavji Estate v Woodhouse , 2003 SCC 69 . [ 7 ] I conclude that the Plaintiff’s claim must be dismissed in its entirety. [ 8 ] Having examined the entire history of this lengthy and complex case, I find that the Plaintiff has established the occurrence of only one unlawful act. That act occurred on July 5, 1985, when Mr. Bruce V.

Massie Q.C., then the Chairman of the Crimes Compensation Board of Alberta (the “CCB”), rendered a decision to award the Plaintiff $680 for counselling services on the partial basis of his wish “to get rid of the file”. Since Mr. Massie’s personal annoyance or impatience was obviously not a legitimate basis upon which to exercise his legal authority, that decision was knowingly rendered in bad faith. [ 9 ] None of the other conduct at issue in this case was unlawful, much less was it knowingly unlawful.

Further, none of the Defendants engaged in any conduct that they knew was likely to cause injury to the Plaintiff. [ 10 ] Finally, and in any event, none of the conduct at issue in this case, including Mr. Massie’s bad faith exercise of discretion, caused any financial loss or other injury to the Plaintiff. The Plaintiff was profoundly injured by the six criminals who assaulted her in 1980.

She was not injured by any of the Defendants. [ 11 ] I also find that all the conduct that occurred in this case after the VOCA came into force on November 1, 1997, enjoys immunity from tortious liability by operation of s. 18 of that Act. [ 12 ] I do not find any of the Plaintiff’s claims to be barred by the applicable limitation period. [ 13 ] I decline to quantify the entirety of the financial losses caused to the Plaintiff by the sexual assault of 1980 since the perpetrators of that assault are not Defendants. I find the quantum of financial losses caused to the Plaintiff by the Defendants to be nil. II.

The Facts A. The Plaintiff, Helen Ziolkoski [ 14 ] The Plaintiff, Helen Ziolkoski, also known as Adelon Shandler, was born on August 8, 1961. Her family was based in Saskatoon. She completed her grade 12 education and also took some years of training as a dance instructor.

In 1980, she went to Vancouver where she took further training and undertook some volunteer dance work. [ 15 ] The sexual assault occurred when the Plaintiff was hitchhiking from Banff to Calgary while on her way to visit her parents’ home in Saskatoon. [ 16 ] By the time of the sexual assault, her only actual employment experience consisted of briefly working as a dance instructor at a wage of $240 per week. She had been receiving social assistance while living in Vancouver.

At the trial before me, the Plaintiff’s partner, Mervyn Ritchie, described the Plaintiff as an exciting and talented musician with a great vocabulary. Throughout her adult life however, the psychological injuries caused by the sexual assault compromised her ability to focus on tasks or to maintain gainful or long-term employment. [ 17 ] The Plaintiff passed away on December 5, 2019. B. Linda Unger [ 18 ] The Defendant Ms. Linda Unger is a Defendant named in both Action #1 and Action #2. [ 19 ] At the time of the Plaintiff’s application to the Board in 1982, the Ms.

Unger was serving as the Secretary to the CCB, and was an employee of Her Majesty the Queen in Right of Alberta. In that capacity, Ms. Unger sent out letters to the police and certain health professionals for the purpose of verifying the occurrence of the assault and the Plaintiff’s resulting injuries. [ 20 ] Throughout the timeframes covered by Action #1 and Action #2, Ms. Unger was involved in communicating with the Plaintiff and providing records to the Plaintiff and the Plaintiff’s legal counsel in response to their requests for disclosure.

[ 21 ] When the CCB was discontinued and replaced by the Director and the CIRB on November 1, 1997, Ms. Unger continued as an administrator and was given delegated authority by the Director to evaluate applications under the VOCA and legacy applications originally submitted to the CCB under the CICA . She continued working in that capacity until April 25, 2006. [ 22 ] Ms. Unger passed away in April, 2010. No de bene esse evidence was obtained with respect to Ms. Unger.

However, she was cross-examined out of court in December of 2005 and November of 2006, and the transcripts of those examinations have been admitted into evidence. C. Boris Nahornick [ 23 ] The Defendant Boris A. Nahornick, M.D. was a Board member on the CCB from 1969 to 1987. He was Chairman of the CCB from 1987 to 1997, until the VOCA came into force. Dr. Nahornick is a Defendant in Action #1 and is not a Defendant in Action #2. Dr. Nahornick passed away in September, 2018. Dr. Nahornick was examined de bene esse and a transcript of that examination is in evidence. D.

Terence Nugent [ 24 ] The Defendant Terence J. Nugent LL.B. was a lawyer and member of the CCB from at least 1983 to 1987. Mr. Nugent is a Defendant in Action #1 and is not a Defendant in Action #2. Mr. Nugent passed away in April, 2006. E. Bruce Massie [ 25 ] The former Defendant Bruce V. Massie, Q.C., was a member and Chairman of the CCB from at least 1982 to 1987. He passed away in March, 1993. [ 26 ] Mr. Massie is not a Defendant in either action, but he is a former Defendant in Action #1.

He was never served with a Statement of Claim. [ 27 ] Although not named as a Defendant in the original Statement of Claim in Action #1, Mr. Massie was added as a Defendant by the Amended Statement of Claim filed on May 20, 2005. On April 20, 2012, he was removed as a Defendant in Action #1 by the Amended Amended Amended Statement of Claim. [ 28 ] Mr. Massie passed away in March, 1993. There is no evidence from Mr. Massie beyond some documents he authored in the mid-1980’s. F. Cal Wrathall [ 29 ] From 1998 to 2009, the Defendant Mr.

Cal Wrathall was the Director of the Victims Regulatory and Support Services, or the Executive Director of the Victims Services Branch. While serving as the Director, his subordinates included Ms. Unger. [ 30 ] Mr. Wrathall was the Director when the Plaintiff submitted her application of March 7, 2002, to vary the CCB’s original decision. [ 31 ] The variation decision of October 22, 2002, was prepared on behalf of Mr. Wrathall by Ms. Unger as Mr. Wrathall’s designate. [ 32 ] Mr. Wrathall testified at the trial of these actions. G. Lionel Whittaker [ 33 ] The Defendant Lionel Whittaker is a lawyer.

He was called to the bar in 1978. In December, 1983, he commenced employment with the Alberta Department of Justice. His work included acting as appellate counsel for the CCB, and later for the Director. He also provided legal advice and assistance as required. Mr. Whittaker represented the CCB in the case of Hehr v Alberta (Crimes Compensation Board) , 1995 ABCA 397 , being a case addressing the CCB’s obligations to disclose documents to the parties appearing before it . [ 34 ] On October 8, 2002, the Director, Mr. Wrathall, instructed Mr.

Whittaker to provide advice and other legal services in relation to the Plaintiff’s case. [ 35 ] Mr. Whittaker testified at the trial of these actions. H. The Plaintiff’s original application to the CCB [ 36 ] On September 29, 1982, the Plaintiff applied to the CCB for compensation for the injuries she suffered from the sexual assault of 1980. Her claim for compensation included a claim for lost income. [ 37 ] The Plaintiff’s application indicated that the Plaintiff was not currently employed but that she had been previously self- employed at Move Gallery and Creative Dance Centre.

The application included an authorization signed by the Plaintiff to release the Plaintiff’s information to the CCB.

[ 38 ] The Plaintiff’s application of September 9, 1982, was made pursuant to the CICA . That Act remained in force until November 1, 1997, when it was repealed and replaced by the VOCA . Unlike the latter statute, the CICA did not contain any manner of exemption provision immunizing persons acting under its authority from civil liability. [ 39 ] The CICA created only one level of administrative decision-making authority, being decisions by the CCB.

The CCB was required to hold public hearings with respect to every application for compensation (s. 4), the right to counsel was recognized (s. 5), and written decisions were required (s. 13). The CCB was empowered to vary any previous order it had made for compensation (s. 17). There existed a right of appeal from the CCB’s decisions to the Court of Appeal of Alberta on a question of law or jurisdiction (s. 18). [ 40 ]

Section 20 of the CICA established the CCB. The CICA conferred a discretion upon the CCB to determine the amount of compensation to be paid to a victim of crime, if any (s. 8). The compensation available from the CCB to victims of criminal offences was defined by s. 9 of the CICA , and included the following categories of relevance to the present case: 9(1) Compensation may be awarded by the Board in respect of any one or more of the following matters: (

a) expenses actually and reasonably incurred as a result of the victim’s injury or death and any other expenses that, in the opinion of the Board, it was necessary to incur; (

b) pecuniary loss to the victim resulting from the total or partial incapacity of the victim to work; [...] (

e) other pecuniary loss resulting from the victim’s injury. [ 41 ] The CICA did not contain any provision dealing expressly with the disclosure of documents or information by the CCB to an applicant or to any other party. However, in Hehr v Alberta (Crimes Compensation Board) , 1995 ABCA 397 , Kerans J.A. for a unanimous Court of Appeal briefly addressed the CCB’s disclosure obligations as follows: 4 It is common ground that the Board did not disclose to the claimant or his counsel the information received in that inquiry. The first word counsel got was when the Board’s decision came out. 5 As Mr.

Whittaker, with his usual candour, acknowledged, the rules of natural justice require that anybody exercising a statutory power to decide the rights of an individual must give that individual a reasonable opportunity to comment on any material before the decider, and this Board in this case failed to comply with that rule. As a result we must allow this appeal and order a new hearing before the Board. I. The CCB hearing and decision of April 27, 1984 [ 42 ] The CCB convened a public hearing respecting the Plaintiff’s application for compensation at the Law Courts in Edmonton on October 18, 1983.

The members of the panel were Mr. Massie, Dr. Nahornick, and Mr. Nugent. Ms. Unger was present at the hearing and took notes. [ 43 ] On April 27, 1984, the CCB rendered a decision respecting the Plaintiff’s application for compensation. The manner in which the Applicant’s loss of income claim was dealt with was stated by the CCB in that decision as follows: The Applicant had completed her Grade 12 education and had for some years taken training as a dancer and in 1980 proceeded to Vancouver where she took further training and engaged in volunteer dance work with day care centres.

The only evidence of her actual employment as a dance instructor was her employment from July 15 through July 23, 1980 at a wage of $240.00 per week. A written statement from one, Elland, states that the Applicant had been offered a position as an instructor in dancing for two classes a week at a wage of $15.00 per hour to run for twelve weeks. During much of this period the Applicant was in receipt of social assistance in Vancouver.

At the hearing the Board pointed out to the Applicant and her solicitor that it did not consider the proof of past or future earnings were sufficient to support an award and the application was adjourned to enable the Applicant to submit further evidence. The Applicant’s solicitor did not request a further hearing but the Applicant herself attended before the Chairman of the Board at the Board’s offices in Edmonton in April 1984 and stated that she had dismissed her solicitor and wished to make a further submission herself.

At this time the Applicant did not submit any evidence of employment between the date of the offence, namely August, 1980, and the present time. The only medical evidence is a letter from Dr. Art Hister, Vancouver, B.C., which relates the circumstances of the assault upon her, however, as the Applicant had not attended at the doctor until 1982 the doctor states there were no relevant details from an examination, although it was very evident to the doctor that the Applicant suffered terribly from the incident.

Notwithstanding the lack of evidence as to physical or mental trauma, the Board is prepared to accept under the circumstances that the Applicant would have been unable to carry on her profession of dancing for some months but her record of employment, neither before or after the assault, is such that the Board can only make an estimate of her pecuniary loss. On this basis the Board estimates and awards the sum of $3,000.00 as her pecuniary loss. J. The involvement of the Ombudsman of Alberta [ 44 ] The Plaintiff did not appeal the CCB’s decision of April 27, 1984.

However, in April or May, 1984, the Plaintiff submitted a handwritten complaint to the Office of the Ombudsman of Alberta respecting that decision. In that complaint, the Plaintiff wrote: ...the amount [awarded by the CCB] doesn’t cover therapies necessary for rehabilitation or retraining or my actual earning capacity. It seems this case has not been dealt with fairly considering the excessive amount of time wasted by the Board in actually defining the

settlement. [ 45 ] By letter dated May 24, 1984, Alex B. Weir, Assistant to the Ombudsman, wrote to Doug G. Rae, Acting Deputy Attorney General, copied to Mr. Massie, and enclosing the Plaintiff’s complaint. Among other things, Mr. Weir requested the materials relied upon by the CCB in reaching its decision of April 27, 1984. [ 46 ] The CCB’s reaction to the Ombudsman’s correspondence respecting the Plaintiff’s complaint was less than cooperative. In a letter dated June 22, 1984, from Mr. Rae to Mr. Weir, copied to Mr.

Massie, it was stated that the Ombudsman had no jurisdiction respecting an independent board like the CCB. Consequently, in Mr. Rae’s words “we are not in a position to assist in identifying evidence actually submitted to the Board”. [ 47 ] However, by letter dated July 16, 1984, Mr. Massie advised Mr. Weir that: “The Board is willing to consider any further evidence submitted on behalf of the above named applicant.” [ 48 ] The Ombudsman did not file any formal application for the CCB to vary its previous decision respecting the Plaintiff. Nevertheless, given Mr.

Massie’s willingness to consider further evidence, there commenced a course of correspondence amongst the Ombudsman, the CCB, the Plaintiff, and a number of parties providing reference material in relation to the Plaintiff’s claim. In the context of that correspondence, the Ombudsman’s office did not limit itself to assessing the Plaintiff’s complaint, and instead took active steps to assist the Plaintiff in submitting new material to the CCB in an effort to achieve additional compensation for her. K. Mr. Massie’s decision to authorize Dr.

David to provide therapy up to $680 (the “$680 Decision”) [ 49 ] The correspondence with the Ombudsman’s office resulted in, among other things, a decision by Mr. Massie on behalf of the CCB in the summer of 1985 to authorize an expenditure of $680 for a psychologist to provide therapeutic services to the Plaintiff and a report to the CCB (the “$680 Decision”).

The Plaintiff pleads that the $680 Decision constituted a misfeasance of public office since it was made without legal authority and on the basis of improper considerations. [ 50 ] The process leading to the $680 Decision was initiated by correspondence from J.B. Pennett, Assistant to the Ombudsman, dated June 21, 1985, advocating for additional compensation for the Plaintiff. Mr. Pennett had recently received a support letter from Dr. Sara Joy David, a psychologist in Victoria, and forwarded that letter to Mr. Massie along with his own letter which read in relevant part as follows: Dear. Mr.

Massie: [...] Further to your letter of June 18, 1985, which was received on June 21, 1985, this office has also received, at the same time, a letter from Dr. Sara Joy David, a Victoria psychologist who had recently been contacted by Ms. Shandler. Please find enclosed a copy of that letter for your information. Upon receipt of that letter enquiries were made of Dr. David, to ascertain the extent of the treatment she has in mind plus an estimated cost. Dr. David has conducted one intensive four hour session with Ms. Shandler and is quite positive about the prognosis for the future.

She is willing to take on the case and has provided the following cost estimates: a minimum of three or four weekends at about $150 per weekend (this fee includes therapy, room and board). For Ms. Shandler to travel to Victoria as a foot passenger on the ferry system, plus busses is probably another $10 to $20 per weekend - $160 to $170 per weekend maybe one five day group session at approximately $400 to $450, plus transportation. - $410/$420 to $460/$470 maybe 10 individual sessions at approximately $50 each, plus transportation. - $60 to $70 each. Dr.

David indicated her sessions are conducted, for the most part, in group settings, therefore, her rates are not as high as the charges of those who provide such services in a one-on-one setting. Those fees can be approximately $60 to $80 per hour in British Columbia, and it is Dr. David’s opinion, such a treatment program would run once a week for a year. It is her understanding that the British Columbia social services system does not cover any of these costs. I trust the above information satisfies the request made in your recent correspondence, and look forward to hearing from you on the matter.

Yours very truly, J.B. Pennett Assistant to the Ombudsman [ 51 ] Mr. Massie’s $680 Decision was communicated to Mr. Pennett in a responding letter dated July 5, 1985, which reads:

Dear Mr. Pennett: Re: ZIOLKOSKI, Helen (A.K.A. Adelon Shandler) C.C.B. #179-5 I have your letter of June 21, 1985 enclosing a copy of the letter from Sara Joy David, psychologist. At this time the Board would agree to the minimum treatment of three or four weeks at a cost of $170 per week at a total cost of $680.00. When this treatment has been completed and Dr. David renders an account together with her report as to the result of such treatment an Order will be made covering the above stated cost. Would you please advise Dr. David of the Board’s decision. Yours Truly, B.V. Massie Chairman [ 52 ] Mr.

Massie’s decision to authorize $680 for therapy was subsequently communicated in a letter from Mr. Pennett to Dr. David dated July 16, 1985, which stated in relevant part as follows: Dear Dr. David: [...] Mr. Massie has recently advised that at this time, the Board would agree to the minimum treatment of three or four weekends with you, at a cost of $170 per weekend, for a total cost of $680. When this treatment has been completed and you render an account to the Board, together with a report as to the results of the treatment, an Order will be made covering the above-stated costs. Ms.

Shandler has been advised that the Board has made an offer, but she has been provided no specifics concerning the treatment plan or the costs of such treatment. I would request your comments on the Board offer. Yours very truly, J.B. Pennett Assistant to the Ombudsman [ 53 ] It appears that Dr. David was not in agreement with either the cap of $680 for treatment, or with the CCB’s unwillingness to pay in advance. Dr. David responded to Mr. Pennett’s letter by an undated letter which expressed an unwillingness to proceed on Mr. Massie’s terms: Dear Mr. Pennett, [...] To clarify my conversation with Ms.

Bowes, it is impossible to be exact in estimating length of treatment required and it is possible to do further damage by incomplete treatment. Working in the intensive weekend group format has in my experience been more effective, quicker, and more economical than any other method. However some individual work is necessary between groups which would be spaced up to two months apart. The best I can do is estimate the optimal treatment and I assure you the minimum necessary intervention is always what I seek to avoid needless dependency. So the treatment would require 3-5 weekends and 7-11 individual meetings.

The rate I would be willing to accept for individual sessions would be $50 per hour which is the same reduce rate offered to Legal aid clients. Since the treatment will extend over many months, I am not in a position to wait until it is complete to receive costs. What I would be prepared to do is send an accounting to you two weeks before each group. As I can only admit 14 women (or men) to each group, and as there are room and board costs included in the fee, I require pre-registration. I will accept $170 as a fee for the weekend groups ($65 of which is paid into room and board).

The usual fee for those groups for tuition alone is between $60 and $200 with $120 as the average. If you choose you certainly might make the offer to pay for subsequent groups contingent upon a progress report indicating the time of opportunity is being well used. [...] Yours truly, Sara Joy David

[ 54 ] Dr. David’s undated letter was forwarded by Mr. Pennett to Mr. Massie by letter dated August 8, 1985. Mr. Massie then wrote directly to Dr. David by letter dated August 14, 1985, which reads: Dear Dr. David: Re: ZIOLKOSKI, Helen (A.K.A. Adelon Shandler) C.C.B. #179-5 Your recent letter to the office of the Ombudsman has been referred to this Board. The Board cannot make an award for medical or other related expenses until the expense has actually been incurred. However, you have the Board’s authority to spend up to $680.00 for four weekend meetings.

If you prefer you could send an account for each individual meeting after it has been completed and an order will then be made covering payment. Yours Truly, B.V. Massie Chairman [ 55 ] Despite the authorization of $680, the record does not indicate that the Plaintiff received any further treatment from Dr. David. It does not appear that Dr. David ever submitted an account to the CCB, or that any of the $680 was ever paid. In a letter to Mr. Massie dated November 5, 1985, Mr. Pennett advised that Dr. David had not heard from the Plaintiff in some time: During my conversation with Ms.

Ziolkoski it did not appear she had contacted Dr. David for some time concerning psychological assistance. I strongly urged her to do so, but I am not aware at this time if my urging had any effect. [ 56 ] The lack of treatment by Dr. David may have been attributable to Dr. David’s disagreement with Mr. Massie’s approach to payment. On December 13, 1985, Mr. Brian Sawyer, Ombudsman, wrote a letter to Mr. Massie which included the following comment: ...My office was in contact recently with Dr. David who expressed her concern with the Board’s offer of $680 for four weekend sessions.

Her primary concern was the feeling that if [the Plaintiff] is unable to afford to complete a full program of therapy, irreparable damage could be caused by starting a program, then stopping part way through. L.

The Ombudsman concludes that the Plaintiff is not entitled to further compensation for lost income as of the end of 1986 [ 57 ] By December 13, 1985, the Ombudsman’s office had concluded that it had exhausted its efforts to achieve additional compensation for the Plaintiff in relation to compensation for re-training or loss of earnings, and instead focused its efforts on assisting the Plaintiff in obtaining compensation for therapy. By letter of that date, Brian Sawyer, Ombudsman, wrote to Mr.

Massie as follows: After a careful review of this matter, I am satisfied there is insufficient evidence to support [the Plaintiff’s] contention she is entitled to further compensation for re-training or loss of earnings. However, I have no doubt that [the Plaintiff] continues to experience some psychological problems as a result of the assault, and I note the Board has indicated its willingness to provide a certain amount of funding for this purpose. [ 58 ] The last letter from the office of the Ombudsman in the Plaintiff’s CCB file is dated November 27, 1986.

In that letter, the Ombudsman advised the CCB that he had decided to cease further involvement in the matter. M. The “Massie Memo” of January 2, 1986 [ 59 ] By January 2, 1986, Mr. Massie had been dealing with the Plaintiff’s application for compensation for a significant period of time. On that date, Mr. Massie authored an internal Memorandum to Dr. Nahornick (the “Massie Memo”). Given the significance of this document to this litigation, its contents are quoted here in their entirety: DATE: January 2, 1986 TO: Dr. Boris Nahornick: FROM: Bruce Massie RE: ZIOLKOSKI, Helen (a.k.a.

Adelon Shandler) C.C.B. #179-5 You will no doubt remember the case of this Applicant who was gang raped south of Calgary.

I have had ongoing correspondence with the Ombudsman’s office and I enclose copies starting with a letter from a psychiatrist, Ingrid M. Pacey, dated December 20, 1984.You will note my order of August 14, 1985 to a psychologist, Dr. David, in Victoria in which I authorized an expenditure of $680.00 for some therapy.

I confess I did this to get rid of the file and based upon my assumption that the victim would not attend for the treatment in any event . [Emphasis added] You will see from the Ombudsman’s recent letter that he agrees with us that she is not entitled to further compensation for retraining or loss of earnings but he does recommend that she received therapy from a Vancouver psychologist, Dr. Diane Mitchell. Linda has computed the cost of her suggested first six months treatment at $3,135.00 being at the rate of $95.00 per hour (more than a doctor would charge).

Due to my absence in Victoria I was wondering if you would take this matter on. You will note that the Victoria psychologist was going to charge something like $50.00 per hour rather than the $95.00 now proposed by the Vancouver psychologist. My suggestion would be as follows: That we get a second opinion from another psychiatrist as the one we have is over a year old. What do you think of phoning Larry Timoffee in Vancouver to see if he could recommend a less expensive psychologist and/or a new psychiatrist. Linda has my phone number in Victoria if you would like to phone me there. Good luck!

See you in February. [ 60 ] The Massie Memo was not immediately disclosed to the Plaintiff or to any party outside the CCB. N. The CCB’s supplemental decision of March 19, 1987 [ 61 ] On March 19, 1987, the CCB issued a Supplemental Decision to the Plaintiff. The decision indicates that it was rendered from Rocky Mountain Plaza, Calgary, but does not indicate whether any formal hearing was convened. The Panel of the CCB was comprised of the same three individuals as the original April 27, 1984, decision, namely Mr. Massie, Dr. Nahornick, and Mr. Nugent.

In that supplemental decision, the CCB ordered that $325 be paid to Dr. Mary Ann Carter, clinical psychologist, for five treatment sessions with the Plaintiff. O. Requests for disclosure by Karen Swartzenberger [ 62 ] In 1995, the Plaintiff retained Edmonton lawyer Karen Swartzenberger and the law firm of McCuaig Desrochers LLP to assist her with her ongoing crimes compensation application. On June 6, 1995, Ms. Swartzenberger wrote to the CCB requesting “all of the documents submitted by Ms. Ziolkoski in support of her claim, as well as any other documents you are prepared to release...”.

Included in this letter was a form of authorization for the release of information signed by the Plaintiff. [ 63 ] On June 19, 1995, Ms. Unger conducted a file review for the purpose of responding to Ms. Swartzenberger’s request and prepared an internal Memorandum summarizing the history of the file for that purpose. At the conclusion of this history, she made the following notation which she believed to reflect a direction that she had received from Dr. Nahornick, or “B.A.N.”: B.A.N.

Write to lawyer – no documents until such time as they advise as to what they are looking for. [ 64 ] On July 8, 1995, the CCB provided Ms. Swartzenberger with a collection of certain documents. The collection was not exhaustive. In the enclosed letter which was drafted by Ms. Carol Winston (who was by then a member of the CCB), and signed by Ms. Unger on behalf of Dr. Nahornick, the CCB advised Ms. Swartzenberger that it was unable to provide “copies of the police report and medical reports without the express written authorization of those bodies.” [ 65 ] The documents provided to Ms.

Swartzenberger on July 8, 1995, also omitted much of the CCB’s correspondence with the Ombudsman’s office. In a July 10, 1995, a fax coversheet to Dr. Nahornick, Ms. Unger advised: “I took out reference to Ombudsman’s Office. I don’t think they should have access to our replies to him.” A handwritten note on the fax states: “Okay – BAN – July 11 – 10:45 AM”. [ 66 ] On October 12, 1995, Ms. Swartzenberger noted in her file: “Linda - CCB we can’t look at their file” and that Ms. Unger had advised her that “the only medical report they have is Dr. Hister’s and a little note from Dr. Belak in Saskatoon”.

At the time, the CCB also possessed correspondence from Dr. Pacey and Dr. David which it had obtained in the context of the correspondence with the Ombudsman’s office. [ 67 ] On Oct 16, 1995, a memo on Ms. Swartzenberger’s file states: “The Crimes Compensation Board just advised by phone that they still refuse to let us look at their file”. [ 68 ] Beyond the correspondence evidencing Ms. Swartzenberger’s efforts to gather documentation on behalf of the Plaintiff, the CCB has no record of any application or further communication from Ms. Swartzenberger. P.

The Victims of Crime Act [ 69 ] The VOCA which repealed and replaced the CICA , came into force on November 1, 1997. It has been amended several times over the years since its enactment, and it is now called the Victims of Crime and Public Safety Act , RSA 2000, c. V-3 . [ 70 ] Unlike the CICA , the VOCA created two levels of administrative decision-making. Initial decisions were to be made by the

Director (or a designate of the Director) pursuant to s. 13, and an appeal lay to the CIRB pursuant to s. 14. [ 71 ] Also unlike the CICA , the VOCA contained a provision providing protection from liability for those acting under its authority. The language of that provision has remained unchanged since its proclamation on November 1, 1997: Cause of action not created 18 Subject to section 16(2) and (3), no cause of action, right of appeal, claim for damages or other remedy in law exists because of this Act or anything done or omitted to be done under this Act. Q. Requests for disclosure by Robert P.

Lee [ 72 ] Sometime prior to April, 2000, the Plaintiff retained Robert P. Lee as counsel, and Mr. Lee subsequently received Ms. Swartzenberger’s file respecting the Plaintiff’s claim for compensation. By that time, the VOCA provided at s. 15(4) that a previous decision of the CCB could be varied on application to the Director. [ 73 ] Mr. Lee made multiple requests to the Director that he be provided with the entire file respecting the Plaintiff’s claim for the purposes of a variation application. The documents initially provided to Mr.

Lee in response to these requests did not constitute the CCB’s or the Director’s entire file. Among other things, the collection of documents provided to Mr. Lee omitted numerous doctor’s letters and certain correspondence respecting the Plaintiff’s employment. The collection also omitted the Massie Memo. [ 74 ] On June 28, 2001, Mr. Lee wrote to the Director indicating that “The documents I have received to date, would not appear to comprise the entire file.” Mr. Lee specifically requested any correspondence between the CCB and the Ombudsman. Mr.

Lee asked for the entire file and for confirmation in writing when he received the entire file. [ 75 ] After Mr. Lee’s June 28, 2001, letter was received by the Director, a post-it note was put on the file that said in one handwriting “Not necessary to reply to this” and in different handwriting, “No report Dr. Carter”. [ 76 ] On July 11, 2001, Mr. Lee confirmed the details of a telephone conversation with Ms. Unger in which he stated: At the end of our conversation you indicated that you would discuss my request [for the Plaintiff’s file] with someone.

It is unclear to me why you would be unwilling to provide me with Ms. Ziolkoski’s entire file immediately. It is unclear what needs to be discussed and what criteria you are using to determine whether or not you will provide me with Ms. Ziolkoski’s entire file. [ 77 ] Ms. Unger passed away in April, 2010. However, when she was questioned in relation to these proceedings in December, 2005, and November, 2006, she acknowledged that she had not provided Mr. Lee with all the documents in the file she was administering, including the Ombudsman documentation, certain W.C.B. documentation, or the Massie Memo. Ms.

Unger was asked several times why she did not provide these various documents, and she stated that she had no memory of what her thought processes were at the time. She also advised that she did not believe that she ever consulted with Mr. Wrathall in relation to the Plaintiff’s requests for documentation. [ 78 ] Regarding the correspondence involving the Ombudsman, a handwritten notation by Ms. Unger on a copy of Mr. Lee’s letter of July 11, 2001, states: “Ombudsman said NO – she must request from him”. This note suggests that Ms.

Unger inquired with the Ombudsman’s office as to whether the correspondence with the Ombudsman could be released, and that authorization to release was refused by that office. R. The Plaintiff’s variation application [ 79 ] On March 7, 2002, Mr. Lee submitted an application on behalf of the Plaintiff to the Director pursuant to s. 15(4) of the VOCA seeking a variation of the CCB’s previous award of compensation based upon new evidence and changes in the circumstances. In that variation application, Mr.

Lee submitted that the CCB had failed in its duty to the Plaintiff, had let the Plaintiff fall through the cracks, and continued to neglect its duty to the Plaintiff. [ 80 ] The variation application was not, of course, supported or otherwise informed by the materials that the Director had withheld from Mr. Lee, notably certain doctor’s letters and the Massie Memo. [ 81 ] The variation application was not limited in its scope to a request for further compensation going forward.

The application also sought additional compensation for the Plaintiff’s lost employment income going back to the time of the 1980 assault. In support of the request for additional lost income, the Plaintiff submitted an expert analysis prepared by Gordon Smith of Deloitte & Touche, which estimated her total lost wages to the date of the variation application as $426,177 to $507,496. The variation application also sought lost wages, counselling, medication, and housekeeping at the rate of $2,797.05 per month going forward. S. Mr.

Lee complains to the Director, the Defendant Cal Wrathall [ 82 ] Given the voluminous history of the Plaintiff’s case to that point in time, the Director’s office took a number of months to process and respond to her variation application. From April 18, 2002, to August 20, 2002, Mr. Lee sent numerous letters to Ms. Unger inquiring about the status of the application, and Ms. Unger responded by advising that the Director required time to deal with all the relevant materials. [ 83 ] By September 11, 2002, Mr. Lee had apparently grown dissatisfied with Ms.

Unger’s lack of action on the Plaintiff’s variation application. On that date, and on September 30, 2002, Mr. Lee sent identical letters directly to the attention of the Director, Mr. Wrathall. Among other things, Mr. Lee advised Mr. Wrathall in those letters that, in his view, “the Crimes Compensation Board was negligent in

their handling of Ms. Ziolkoski’s case”, and that the Director had delayed in providing a decision on the Plaintiff’s variation application “[d]espite uncovering clear evidence of negligence by the CCB”. As a result, Mr. Lee argued, the Plaintiff had not received the psychological counselling that she required, and he requested an interim award of $20,000. [ 84 ] Mr. Wrathall responded to Mr. Lee’s letters with a letter dated October 8, 2002, which read: We acknowledge receipt of your letter of September 30, 2002 regarding Ms. Ziolkoski’s file.

Please be advised that a meeting was held regarding this file and it has been determined that there are legal issues relating to same and the file has therefore been turned over today to our legal counsel Lionel Whittaker of Civil Law. Mr. Whittaker will be in touch in you regarding the status of this file. [ 85 ] In March, 2012, Mr. Wrathall was questioned in relation to these events of September and October, 2002. At that time, he was asked why the Director’s office did not provide Mr. Lee with all the requested information from the Director’s file respecting the Plaintiff. Mr.

Wrathall responded that he was not personally involved in any of those decisions and so was unaware what the reasoning process had been. He advised that he believed that Ms. Unger had been the responsible person in relation to those decisions. [ 86 ] During his testimony, Mr. Wrathall advised that once he received Mr. Lee’s letters objecting to the delays in providing a review decision, he took steps to expedite the decision-making process, and also asked Mr. Whittaker to provide legal assistance in dealing with any further issues arising from the Plaintiff’s file. [ 87 ] Mr.

Wrathall also advised that at some point before the Plaintiff’s file was transferred to the CIRB for the purposes of an appeal, he conducted a review of the file. He concluded at the time that there was no conduct on the part of his own subordinates that raised any concerns for him. Although he may have reviewed the Massie Memo at that time, that document was not the subject of his focus since he was particularly concerned by the work of his own subordinates, and not historical events. T. The Defendant Lionel Whittaker’s involvement [ 88 ] Following Mr. Wrathall’s letter of October 8, 2002, Mr.

Whittaker provided legal advice and services to the Board in relation to the Plaintiff’s case. He also conducted a review of the file and sent various pieces of correspondence examined later in these reasons. U. The Director’s variation decision of October 22, 2002 [ 89 ] On October 22, 2002, the Director’s office communicated its decision on the variation application to Mr. Lee by letter (the “Director’s Variation Decision”). The decision was prepared and signed by Ms. Unger as “Administrator”. In that decision, Ms.

Unger awarded the Plaintiff the amount of $973.50 per month for lost income from March 8, 2002, being the date that the variation application was received by the Director. She also awarded up to $5,000 for counselling. [ 90 ] Ms. Unger’s reasons on the variation application were succinct. The decision is just over one page in length. Ms. Unger did not provide a detailed explanation as to why she rejected the Plaintiff’s request for pecuniary losses back to the date of the original assault, and there was little or nothing in the way of an explanation as to the amounts that she awarded to the Plaintiff. V.

New disclosure in the context of the Plaintiff’s appeal to the CIRB [ 91 ] On October 24, 2002, Mr. Lee, on behalf of the Plaintiff, appealed the Director’s Variation Decision to the CIRB pursuant to what was then s. 14 of the VOCA . [ 92 ] In the appeal of October 24, 2002, Mr. Lee submitted that Ms. Unger had provided “virtually no reasons in the decision”, and that the decision had been unreasonable. Mr. Lee also expressed the following concern in his letter initiating the appeal: I believe that materials may have been reviewed and relied upon which Ms.

Ziolkoski was not made aware of or given the opportunity to respond to. When you request the file from the Director of the Victims of Crime Financial Benefits Program please ensure that I am provided with all materials that they relied on to make their decision. [ 93 ] On December 10, 2002, Mr. Lee sent a letter to Mr. Wrathall inquiring as to the reasons behind the Director’s Variation Decision, and again requested a copy of the entire file. [ 94 ] On December 13, 2002, Mr. Whittaker responded to the requests contained in Mr.

Lee’s letter of December 10, 2002, in the following terms: “With respect to your letter to Mr. Wrathall, you have the Director’s decision. What you have is what you are entitled to and is all that the Director is prepared to provide.” [ 95 ] Following the commencement of the appeal to the CIRB, the Director’s entire file was forwarded to the CIRB. From that point, it became the responsibility of the CIRB to respond to Mr. Lee’s ongoing requests for further disclosure of records. One such request was submitted by Mr.

Lee to the CIRB in a letter dated December 16, 2002. [ 96 ] On January 23, 2003, the CIRB provided Mr. Lee with copies of correspondence between the CIRB and the various lawyers who acted for the Plaintiff over the years. Those materials included certain employment letters of relevance to the Plaintiff’s loss of income claim. Those documents had not previously been provided to Mr. Lee. [ 97 ] On May 6, 2003, the CIRB provided Mr. Lee with copies of the correspondence between the CCB and the Ombudsman, including the July 5, 1985, letter in which Mr. Massie had authorized an additional $680 for therapy.

This tranche of disclosure also included two letters from a psychologist dated June 13, 1985, and a letter relating to the Plaintiff’s potential attendance at an educational

institution. Those documents had not previously been provided to Mr. Lee. [ 98 ] Still, to this point in time, Mr. Lee was not provided with the Massie Memo or a number of related documents, which remained in the file that had been passed by the Director to the CIRB. W. The first appeal hearing before the CIRB [ 99 ] On May 16, 2003, the CIRB convened a hearing respecting the Plaintiff’s appeal of the Director’s Variation Decision of October 22, 2002. The hearing was held at the John E. Brownlee Building in Edmonton. The members of the hearing panel were Kenneth G. Torry, Q.C., Dr. Roy P. Wilkinson, B.Sc.

M.D., and Edward T. Blowers. [ 100 ] One of the main points at issue before the CIRB was whether the Plaintiff was to receive compensation all the way back to the date of the assault in 1980, despite the fact that she had failed to bring a variation application for some 19 years until March of 2002. Mr. Lee argued that the Plaintiff ought to be awarded compensation back to 1980 since the CCB had acted negligently and in bad faith in a number of respects, including the CCB’s refusal to disclose relevant documents to the Plaintiff and her legal counsel. [ 101 ] At the hearing of May 16, 2003, Mr.

Lee was asked or directed to provide certain additional follow-up information to the panel after the hearing, including (1) clarification of the expert analysis respecting lost wages, (2) clarification of the effect that monthly payments ordered by the Director would have upon the Plaintiff’s entitlement to receive social assistance, and (3) further particulars of disbursements for medical reports and legal fees. [ 102 ] At the conclusion of the May 16, 2003, hearing, the CIRB reserved its decision pending receipt of the further information from Mr. Lee, and the preparation of its reasons. X. Mr.

Whittaker’s letter of September 24, 2003 [ 103 ] After the hearing before the CIRB, on May 21, 2003, Mr. Lee sent a letter to Ms. Unger asking the following seven questions respecting her failure to disclose to him the new documents that he had recently received from the CIRB: 1. When I initially began representing Ms. Ziolkoski, why did you not give me her entire file in response to my request for her entire file? 2. Why did you not provide all of the information to Ms. Ziolkoski’s lawyer, Ms. Swartzenberger? 3. In particular, why did you not provide me and Ms.

Swartzenberger wit the medical reports and letters in the Ombudsman’s reports? 4. Why did you never tell me that there was information on the file that you had not provided me? 5. Why did you not provide me with all of the letters that you sent to the doctors? 6. When you wrote to a doctor, why did you not ask the doctor if Ms. Ziolksoki was disabled? 7. When Dr. Hister wrote to you saying that he did not give his opinion because you did not ask for it, why didn’t you immediately write back asking for his medical opinion? [ 104 ] On May 28, 2003, Mr. Whittaker responded to Mr.

Lee’s letter of May 21, 2003, on behalf of Ms. Unger. Mr. Whittaker listed the three points of follow-up information that Mr. Lee had been asked by the CIRB to provide and stated: “The information that you have requested from Ms. Unger is not relevant to any of the above and, accordingly, will not be provided.” [ 105 ] Copies of Mr. Lee’s letter of May 21, 2003, and Mr. Whittaker’s response of May 28, 2003, were subsequently provided to the CIRB. On August 25, 2003, Mr. Torry, on behalf of the CIRB hearing panel, sent a letter to Mr.

Whittaker commenting upon this correspondence as follows: The Board has received written submissions from Mr. Lee which include a copy of his letter to the attention of Mrs. Unger dated May 21, 2003, and a copy of your reply dated May 29, 2003. Mr. Lee’s submissions to the Board include a submission that an application for a review was not made by his client earlier due to the absence of documentation from the Director’s office and that this should be considered in determining the date from which any award is effective. The Board is of the view that the questions set out in the letter of Mr.

Lee dated May 21, 2003, are therefore relevant to issues which the Board must consider. The Board would therefore request that if answers to those questions are available, they be provided. The Board does recognize that due to the passage of time the questions may be difficult to answer. [ 106 ] Having been thusly encouraged by the CIRB to respond to the seven questions posed by Mr. Lee in his letter of May 21, 2003, Mr. Whittaker had phone and email communications with Ms. Unger. In an email of September 17, 2003, Ms. Unger provided the following comments to Mr. Whittaker in response to Mr.

Lee’s seven questions: 1. October 18/2000 – sent copies of RCMP report, letters from Dr. Pacey, Dr. Belak and Dr. Hister. 2. Nov. 7/95 sent police report. July 95 sent 2 Board decisions, copies of letters from Rape Crisis Centre, Sunflower Crisis Centre, Richard Poole (artistic director) and J. Ellard (regarding dance instructor for classes). 3. He got the medical reports in October 2000 – our letters back and forth to the Ombudsman were not released to anyone

4. What is this about? 5. We do not provide copies of letters we send out (they are all form letters anyhow) 6. We ask doctors for a factual medical report. 7. Why would we – he more or less gave us his opinion [ 107 ] On September 24, 2003, Mr. Whittaker had a phone conversation with Ms. Unger respecting Mr. Lee’s questions. He prepared handwritten notes of that conversation which read as follows: 24/09/03 TT.

Linda Unger Re: Ziolkoski email not responsive - basically followed policy → release of docs won’t include CCB corresp (mainly form letters) or TP docs (RCMP, Drs etc) w/o consent - passage of time – can’t recall why no follow up w/ Hister → factual report sought no opinion she didn’t expect one? → ? prepared to accept his letter “as is” [ 108 ] In a letter of September 24, 2003, to the CIRB, copied to Mr. Lee and blind copied to Ms. Unger, Mr. Whittaker responded to Mr.

Lee’s seven questions as follows: In response to your inquiry, the Director advises as follows: (1) the decision as to what materials to provide to Ms. Swartzenberger and Mr. Lee was made based on the policies of the Director as those policies were in force at the time the requests were made; (items 1-5) (2) according to the practice of the Crimes Compensation Board (the “CCB” or the “Board”), as the context may provide), requests made by the Board of attending physicians was for provision of a medical report, simpliciter , (item 6)

(3) The Director is unable to provide any comment/insight as to why there was no follow up on Dr. Hister’s report by the CB. Based on its decision it appears that the CCB was prepared to accept Dr. Hister’s comment to the effect that “…it is very evident that Ms. Ziolkoski suffered terribly from this incident” as a comment to that effect is made in the decision” (item 7) and

(4) The Director is unable to ascertain whether there was any follow up communication with Mr. Harrison (your queare).” [ 109 ] Having received Mr. Whittaker’s responses of September 24, 2003, and having gathered other relevant materials, Mr. Lee provided final written submissions to the CIRB dated November 10, 2003. It is noteworthy that at the time that these final submissions were presented, Mr. Lee still had not been provided with several of the documents in the CCB’s file, including the Massie Memo. Y.

The policies and practices of the CCB regarding disclosure of third-party records [ 110 ] Many of the allegations contained in Action #2 pertain to the representation in Mr. Whittaker’s letter of September 24, 2003, that Ms. Unger’s decisions respecting disclosure to the Plaintiff were “based on the policies of the Director as those policies were in force at the time the requests were made”. The Plaintiff alleges that this representation was false or otherwise misleading.

It is therefore necessary to consider the evidence respecting the nature and existence of the policies and practices referred to in this representation. [ 111 ] During her out-of-court examinations of November 2006, Ms. Unger stated that she had no memory of her reasoning processes when she made the disclosure decisions respecting the Plaintiff’s applications. She also had no memory of the correspondence amongst Mr. Lee, Mr. Torry and Mr. Whittaker in 2003. [ 112 ] However, at one point in the November 8, 2006, transcript, the following exchange occurred between Ms.

Unger and counsel for the Plaintiff in reference to the answers contained in Mr. Whittaker’s letter of September 24, 2003: Q. The answer given by Mr. Whittaker to Mr. Torry as it relates to questions 1 to 5 in Mr. Lee’s letters, I suggest to you that those answers are not correct? A. No. Q. You are agreeing with me? A. Regarding that letter? Q. Yes.

A. Yes. Q And i t i s correct that you never advised Mr . Lee, in answe r to any o f his requests for the ent ir e file of the P l aintiff, that you would not do so because the direc tor' s policy in force at that t i me was not to do so? A Yes. Q Today you can't recall any such policy reason in force for declining to produce the entire file to Mr. Lee? A Co rr ect . Q And between 2000 and 2002 you have no recollection of being in for med of any policy to apply with respect to providing file information to an app li cant or her s o li c i tor? A No, we don't.

Q Do you accep t t hat you have no recollection how it was decided between 2000 and 2002 what to provide in response to a request by an appl i cant's lawyer for i nformation? A Yes. [Emphasis added] [ 113 ] Despite Ms. Unger’s statements of November 8, 2006, respecting her lack of any recollection of any third-party records policy or practice, the evidence confirms that such a practice did exist. This practice is reflected, for example, in Dr. Nahornick’s letter to Ms. Swartzenberger dated July 8, 1995, (drafted by Ms. Winston and signed by Ms.

Unger) in which it is stated: “We are unable to provide your office with copies of the police report and medical reports without the express written authorization of those bodies.” [ 114 ] The precise details of the third-party records policy or practice, to the extent that such details existed, have not been proven. The evidence does not disclose that the practice was reduced to writing at the time of events at issue in these actions, and the evidence that does exist with respect to its operation is less than clear. [ 115 ] Ms.

Winston, a member of the CCB and later the CIRB, testified that police reports and medical reports could only be disclosed with the authorization of the author that prepared them, but also that she was never directly involved in having to produce such information, so she did not know exactly how it worked. [ 116 ] Ms. May Fong, a staff member with the CCB, testified that the statement in Dr. Nahornick’s letter of July 8, 1995, was consistent with the practice in the office at the time, though they did not receive many requests for such documents. Ms.

Fong also testified that the practice was for the CCB to request permission from the authors when such requests were received. However, Ms. Fong also advised that she was not personally responsible for responding to disclosure requests. The responsible person was generally Ms. Unger. [ 117 ] Mr. Wrathall testified that he was made aware by his staff of a practice of writing or phoning third parties to obtain permission to release their letters, but that this practice was not a formal policy, and that there existed a certain measure of discretion in its application. Mr.

Wrathall did not know whether the practice applied to psychologists as opposed to psychiatrists, and he did not know if it applied to third-party letters that had originally been received directly from the applicant who was requesting disclosure. He also testified that his understanding was that if an applicant had been to a doctor, they would know about that doctor, and so could request documentation themselves. [ 118 ] The evidence respecting the disclosure of such records over the years to Ms. Swartzenberger and Mr.

Lee at various stages of the process indicates that the policy or practice respecting third-party records was not consistently applied. That is, some such records were provided to Ms. Swartzenberger but not to Mr. Lee and vice versa . [ 119 ] Based upon this evidence, I find that there did exist a general policy or practice in the offices of the CCB and the Director to only disclose documents received from third-parties, such as law enforcement agencies and health professionals, after first obtaining the consent of those third-parties. Generally, such consent would be sought by form letter or by telephone.

This practice was not reduced to writing, it included a measure of discretion, and it did not carry the force of law at the times of the events at issue in these actions. Any further features of this practice have not been proven. [ 120 ] It is noteworthy that the Defendants’ third-party records practice came to be reflected in a regulation that was enacted in 2004, [1] and that remained in effect until it was repealed in September, 2022. Prior to 2004, the practice was just that, a practice, and it was not embodied in any source of law. Z.

The First Criminal Injuries Review Board Decision [ 121 ] On January 22, 2004, the CIRB released a written decision respecting its review of the Director’s Variation Decision, being the First CIRB Decision. [ 122 ] One of the most important issues determined by the CIRB in the First CIRB Decision was the appropriate commencement date from which the Plaintiff’s injuries would be quantified. As noted above, Ms.

Unger had, in the Director’s Variation Decision, refused to award the Plaintiff compensation going back to the date of the original application in 1982, and had instead awarded compensation going forward from March 8, 2002, being the date of the variation application. The CCB introduced its analysis of that issue and summarized Mr. Lee’s arguments in relation to it as follows:

One of the important issues on this review is when compensation payments to Ms. Ziolkoski should commence. Should compensation payments commence prior to the date of the application to vary. In circumstances where there has been a substantial delay in making an application for review under

section 15 of the Victims of Crime Act and the Applicant requests that the compensation payment commence or be adjusted as of a date significantly prior to the application, it is necessary to: 1) Determine the reasons for the delay. 2) Determine if those reasons justify the delay. The solicitor for Ms. Ziolkoski submits there are numerous reasons for the delay and particularizes them in paragraph 9 of his final submissions dated November 10, 2003. Those reasons include a number of serious allegations against the C.C.B. and its members and against Ms.

Unger, who was the secretary for the C.C.B. and is now an administrator in the office of the Victims of Crime Financial Benefits Program. Submissions to this effect were made by Mr. Lee and Ms. Ziolkoski at the hearing in May 2003, and repeated in the various written submissions made by Mr. Lee. Due to the nature of these submissions, it is necessary to deal with them in these reasons. In his submissions, Mr. Lee indicated that his client would have a cause of action against past members of the C.C.B. and against Ms.

Unger for negligence and for fraudulent concealment which she may pursue if she does not recover in these proceedings past compensation to which she feels she is entitled. We want to make it clear that if Ms. Ziolkoski has any such causes of action, it would be up to her to pursue them as she sees fit in another forum. Whether she has any such other causes of action do not in any way affect the decision of the C.I.R.B. The C.I.R.B. does not have jurisdiction to pass judgment on the conduct or the decisions of the C.C.B.

However, we must state that there is nothing in the evidence to suggest that members of the C.C.B. or Ms. Unger did not act in good faith. If there were any such evidence it would be up to Ms. Ziolkoski to pursue whatever remedies she considers appropriate. [ 123 ] The CIRB went on in its reasons to reject the above aspects of Mr. Lee’s arguments about the commencement date for compensation and found that no blameworthy conduct by Ms. Unger justified an earlier commencement date. In doing so, the panel placed reliance upon the allegedly false statement by Mr.

Whittaker in his September 24, 2003, letter to the effect that Ms. Unger had acted in accordance with the policies in force at the time: We are of the view that there was no “negligence” on the part of Ms. Unger [in failing to disclose records to Ms. Swartzenberger]. It may very well be that some additional documentation should have been forwarded by the C.C.B. to Ms. Swartzenberger without the necessity of additional authorizations or further requests. However, there is nothing to indicate there was deliberate concealment on the part of anybody. Mr.

Whittaker, as solicitor for the office of the Director indicated in his September 24, 2003, response to questions asked by Mr.Lee that documentation provided to Ms. Swartzenberger in 1996 was provided in accordance with the policies in effect at that point in time. Ms. Unger was merely following policies in effect . There is nothing in the matters referred to above which would be a basis for holding that compensation payments to Ms. Ziolkoski should commence at a date earlier than would otherwise be the case. In his letter to the office of the Director dated September 22, 2000, Mr.

Lee advised that he had been retained by Ms. Ziolkoski and did request a complete copy of her file. He was not provided with a complete copy of her file. The explanation for this is provided in the letter from the solicitor for the Director dated September 24, 2003, which indicates that Mr. Lee was provided with the materials from Ms. Ziolkoski’s file in accordance with the policies of the Director at that time. Mr.

Lee suggested both at the hearing in May 2003, and in his subsequent submissions that failure to provide him with the complete file following his initial request was deliberate concealment on the part of Ms. Unger. As Ms. Unger was following the established policies or practices of the office of the Director at that time, she did nothing wrong . The policies and practices of the office of the Director with respect to these matters must be established by that office.

However, it is the view of this panel of the C.I.R.B. that all of the documentation and evidence which was before the Director (or in matters involving a review of decisions of the C.C.B. that was before the C.C.B.) should be made available to an Applicant or that Applicant’s counsel, unless there is some specific legal reason why those documents should not be provided. If there is evidence which cannot be provided for a legal reason, then the party or their solicitor should be advised of the existence of that evidence and the reason why it is not made available to them.

They would then be at liberty to pursue whatever other steps may be available to them to obtain copies of it. [Emphasis added] [ 124 ] For the above reasons, the CIRB declined to award compensation to the Plaintiff back to 1982 on the basis of any negligence or bad faith on the part of Ms. Unger or the CCB. [ 125 ] Importantly, however, the above passages from the CIRB’s First Review Decision do not reflect its final disposition on the issue of the commencement date. The panel next proceeded to conclude that it was appropriate to award the Plaintiff compensation back to the date of her 1982 application.

In particular, the panel concluded that such an award was justified since the Plaintiff’s delay in making a variation application was attributable primarily to the psychological trauma that she had experienced from the assault:

In this particular case, it would appear that the primary reason for the delay in bringing the applications is that Ms. Ziolkoski has continually suffered from serious psychological consequences resulting from the assaults which occurred in 1980. Although Ms. Ziolkoski has received counseling from time to time, including 3 months of counseling from a rape crisis center shortly after the assault, it appears she has not received adequate intensive treatment to deal with these psychological problems, at least until recently.

The evidence would indicate that since 1980 she has also been the victim of other sexual assaults and abuse, and these may be a factor. However, the root of the problem relates to those vicious assaults which occurred in 1980. [...] It is the view of the C.I.R.B. that the delay in applying to vary is not the fault of Ms.

Ziolkoski and it should therefore consider compensation for the period prior to the date the application to vary was made. [ 126 ] Having concluded that it was willing to consider compensation for losses occurring prior to the date of her variation application, the CIRB panel next proceeded to do so. The panel began this aspect of its analysis by considering the period from 1982, when the Plaintiff’s application was submitted, to 1987, when she fell out of contact with the CCB.

After conducting a detailed analysis of the material that was before it in relation to that interval, the panel concluded that there was no new evidence that justified a variation of the CCB’s original award of $3,000 for that interval. Among other things, the panel relied upon the fact that the Ombudsman, who was then assisting the Plaintiff with her application, had agreed in his letter of December 13, 1985, that there was insufficient evidence to support the Plaintiff’s contention that she was entitled to additional compensation for retraining or loss of earnings.

The panel therefore concluded as follows: There is a substantial amount of additional evidence before the Director and before the C.I.R.B. that was not before the C.C.B. However, there is very little new evidence before the Director or the C.I.R.B. which would relate to the time period during which the C.C.B. was dealing with the application of Ms. Ziolkoski, that would be from 1982 to March 1987. Any new evidence before the C.I.R.B. does not warrant a variation of the decision of the C.C.B. for that period of time.

It is the decision of the C.I.R.B. that it will not vary the decision of the C.C.B. as far as it relates to the period prior to 1987. It is the decision of the C.I.R.B. that Ms. Ziolkoski should be entitled for [ sic ] compensation for loss of income commencing January 1, 1987. [ 127 ] As the above passage indicates, the panel’s reasons in the First CIRB Decision for denying the Plaintiff compensation for the period 1980 to 1987 did not rely upon or otherwise refer to the contents of Mr. Whittaker’s letter of September 24, 2003, respecting the existence of any disclosure policies or practices.

Instead, that aspect of the decision relied upon the fact that the Plaintiff had not submitted any new evidence of pecuniary loss during that period. [ 128 ] Again, it is noteworthy that the materials reviewed by the panel in the above passage of the First CIRB Decision respecting the period 1980 to 1987 did not include the Massie Memo of January 2, 1986. Given that the CCB’s file had by that point in time been forwarded to the CIRB, the Massie Memo may have been somewhere in the CIRB’s possession. However, since the Massie Memo had still not been disclosed to Mr.

Lee, it had not been brought to the CIRB’s attention, and presumably for that reason, it was not considered or addressed by the CIRB in its reasons. [ 129 ] Having denied the Plaintiff’s application for compensation for the period 1980 to 1987, the CIRB panel next decided that it would award the Plaintiff additional compensation going forward from January 1, 1987. Its conclusion in this regard was briefly stated: It is the decision of the C.I.R.B. that Ms.

Ziolkoski should be entitled for compensation for loss of income commencing January 1, 1987. [ 130 ] Following a lengthy and detailed review of the evidence, the panel varied the Director’s Variation Decision and awarded the Plaintiff a lump sum payment of $120,686.82, representing lost income back to January 1, 1987, $5,000 a year for five years for counselling, $720 per year for five years for medication, and $1,809 a month from January 1, 2004, to December 31, 2008. [ 131 ] Mr. Lee, on behalf of the Plaintiff, requested costs for the proceedings before the CIRB.

The panel accepted this submission to the extent of awarding $7,556.48 for disbursements. The remainder of the Plaintiff’s request for costs was denied in succinct reasons: “No award for costs other than the above disbursements is made.” AA. Action #1 [ 132 ] Action #1 was commenced by the filing of the Plaintiff’s Statement of Claim on July 22, 2004. By that point in time, the Plaintiff had received the First CIRB Decision, and the appeal from that decision had not yet been heard by the Court of Appeal. [ 133 ] The original Defendants in Action #1 were Ms. Unger, Dr. Nahornick, Mr. Nugent, the CCB and John Doe.

The pleadings in the original Statement of Claim appear to largely mirror the arguments that were presented to the CIRB respecting these Defendants’ alleged failures to deal with the Plaintiff’s claim in a competent manner. [ 134 ] Paragraph 31 of the original Statement of Claim pleads that the Defendants’ conduct constituted “abuse of public office, fraudulent concealment and negligence”. [ 135 ] 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. [ 136 ] Since the original Statement of Claim in Action #1 was filed prior to the disclosure of the Massie Memo, Mr. Massie was not

named as a Defendant in the original Statement of Claim. However, on May 20, 2005, the Plaintiff filed an Amended Statement of Claimwhich added Mr. Massie as a Defendant, as well as particulars respecting the alleged concealment of the Massie Memo. [137] Mr. Massie was removed as a Defendant in Action #1 in the Amended Amended Amended Statement of Claim filed April 20,2012. [138] The factual allegations pleaded in Action #1 focus upon the Defendants’ conduct during the period August 31, 1982, to January,2004. BB.

The Plaintiff’s appeal to the Court of Appeal of Alberta [139] The Plaintiff appealed the First CIRB Decision to the Court of Appeal of Alberta. David Jardine of the firm Shores BelzilJardine represented the CIRB in relation to that appeal. On November 1, 2004, Mr. Jardine sent a letter to Mr. Lee enclosing thedocuments listed in the Agreement as to Contents of Appeal Book. [140] On February 3, 2005, Mr. Lee wrote to Mr. Jardine advising that that proposed agreement listed 5 documents that had notpreviously been provided to the Plaintiff or Mr. Lee by the Board or the CIRB.

All 5 of those documents were dated in 1986. One ofthem was the Massie Memo. [141] On March 8, 2005, Mr. Jardine replied on behalf of the CIRB and confirmed that the 5 documents identified by Mr. Lee in hisletter of February 3, 2005, had not been previously provided to the Plaintiff or to Mr. Lee by the Board or the CIRB. [142] The parties agree that the Plaintiff was unaware of the existence of the Massie Memo until November 1, 2004, when it wasproduced to Mr. Lee by Mr. Jardine. [143] In addition to the 5 documents identified by Mr.

Lee in his letter of February 3, 2005, four additional documents from theBoard’s file ranging in date from 1984 to 1995 were first disclosed to the Plaintiff in the context of the appeal to the Court of Appeal. [144] On November 9, 2005, the Court of Appeal pronounced its decision on the appeal of the First CIRB Decision.

In Ziolkoski vAlberta (Criminal Injuries Review Board), 2005 ABCA 392, Costigan J.A., for a unanimous Court, referred to the disclosure of theMassie Memo as follows: 6 After the respondent rendered its decision, it found that it had inadvertently failed to disclose to the appellant five documents. One ofthose documents was a memo dated January 2, 1986 from a member of the CCB to a Doctor, which states: You will note my order of August 14, 1985 to a psychologist, Dr. David, in Victoria in which I authorize the expenditure of $680 forsome therapy.

I confess I did this to get rid of the file and based upon my assumption that the victim would not attend for the treatment inany event. [145] Justice Costigan then proceeded to allow the appeal and to remit the matter to the CIRB for the following reasons: 8 In this case, the rules of natural justice required the respondent to give the appellant a reasonable opportunity to comment on thememo. The failure to do so resulted in a breach of the rules of natural justice: Hehr v. Alberta (Crimes Compensation Board) (1995),1995 ABCA 397 , 174 A.R. 318 at para. 5 (C.A.).

A re-hearing is the appropriate remedy, but limited to the issue of the impactof the non-disclosed documents on the respondent's decision not to award compensation for the period 1980-1987. [...] 11 Accordingly, the appeal is allowed in part. The order under appeal is preserved except to the extent that it declined to awardcompensation for the period 1980-1987. That issue is remitted to the original panel for rehearing. [146] On the issue of costs, Justice Costigan stated: 10 The appellant also seeks costs on a solicitor and her own client basis.

The respondent's failure to disclose was unfortunate butinadvertent. This falls well short of the conduct necessary to attract an award of costs on a solicitor and own client basis. However, anaward of party-party costs to the appellant is appropriate, including costs for preparation and filing of the appellant’s factum. CC. The Second Criminal Injuries Review Board Decision [147] Pursuant to the Court of Appeal’s decision of November 9, 2005, the Plaintiff’s application for compensation was returned forfurther consideration by the CIRB. The re-hearing was held on July 17, 2016, in the J.E.

Brownlee Building in Edmonton, and was heardby the same panel. The Plaintiff was represented at the hearing by Mr. Lee. The Plaintiff also made submissions to the panel on her ownbehalf. [148] It bears emphasis that at the time of the re-hearing before the CIRB, Mr. Lee and the Plaintiff were then in possession of all ofthe documentation known to have been in the possession of the CCB, the Director, and the CIRB.

That documentation included theMassie Memo, and so far as is known, everything else that was contained in the file relating to the Plaintiff’s claim for compensation. [149] The CIRB released its decision on the re-hearing (the Second CIRB Decision), on March 16, 2007. In its reasons, the panelconducted a lengthy and detailed review of all the available documentation respecting the period 1980 to 1987. Ultimately, the CIRBpanel concluded that the new documentation did not have any impact upon their previous decision to deny additional compensation forthe period 1980 to 1987:

Considering all of the evidence before the Board including the submissions made on behalf of the Applicant and the Applicant herself,the Board has come to the conclusion that the memorandum of January 2, 1986 does not have any impact on the prior decision of theBoard to not award compensation to the Applicant for the period prior to 1987. It is clear that both before and after the memorandum theBoard was prepared to pay the costs of therapy treatment for the Applicant. It is also clear that when the Applicant did attend for therapytreatments the CCB paid the accounts submitted to it.

Notwithstanding the unfortunate use of words in the memorandum of January 2,1986 which the Board appreciates caused significant upset to the Applicant when she received it, the Board, after considering all of theevidence, finds that Mr. Massie in dealing with the file of the Applicant acted bona fide. [150] For the above reasons, the CIRB denied the Plaintiff’s request to vary the First CIRB Decision with respect to compensation forthe period 1980 to 1987.

The CIRB did grant a modest increase in ongoing annual treatment costs going forward given that the costs ofsuch services had increased since the date of its earlier decision. The Second CIRB Decision does not address any request for costs. [151] The Plaintiff did not appeal the Second CIRB Decision. DD. Action #2 [152] The Statement of Claim in Court of King’s Bench Action No. 0703 15607 was filed on December 3, 2007. An AmendedStatement of Claim was filed on April 20, 2002. The current Defendants in Action #2 are Mr. Whittaker, Ms. Unger, Mr.

Wrathall, HisMajesty the King in Right of Alberta, and John Doe. [153] The Amended Statement of Claim in Action #2 also pleads new facts which focus upon Mr. Whittaker’s letter of September 24,2003, to the CIRB, and its allegedly false representation that the ongoing non-disclosure occurred pursuant to the “policies... in force atthe time”. That pleading also repeats and adopts substantially all of the allegations raised in Action #1 and asserts that the Action #2Defendants became complicit in much if not all of that earlier conduct. III.

The Tort of Misfeasance in a Public Office [154] The leading case respecting the tort of misfeasance in a public office is Odhavji Estate v Woodhouse, 2003 SCC 69. Atparagraph 32, Iacobucci J. summarized the essential elements of that cause of action in the following terms: 32 To summarize, I am of the opinion that the tort of misfeasance in a public office is an intentional tort whose distinguishing elementsare twofold: (

i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likelyto injure the plaintiff. Alongside de

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