Alberta et al. v. C.H.S. et al., 2005 ABQB 695

• Judge: Slatter, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 31, 2005
• Citations: 2005 ABQB 695;(2005), 385 A.R. 119 (QB)

Alta. v. C.H.S. (2005), 385 A.R. 119 (QB)

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. SE.094

In The Matter Of the Child, Youth and Family Enhancement Act, R.S.A. 2000, c. C-12, as amended;

And In The Matter Of the Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, as amended;

And In The Matter Of an intended class proceedings brought pursuant to the Class Proceedings Act, R.S.A. 2000, c. C-16.5, as amended.

Her Majesty The Queen in Right of Alberta, as represented by the Director of Child Welfare, Her Majesty The Queen in Right of Alberta, as represented by the Minister of Justice and Attorney General (applicants) v. C.H.S., T.S., by his next friend, C.H.S., J.S., by his next friend, C.H.S. and D.S., by his next friend, C.H.S. and John Doe (respondents)

(0503-10531; 2005 ABQB 695)

Indexed As: Alberta et al. v. C.H.S. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Slatter, J.

September 15, 2005.

Summary:

Several actions were commenced against Alberta Children's Services (ACS) for failing to discharge their duty to children in foster care. In one action, there was a pending application to certify a class proceeding. In order to defend the actions and respond to the certification application, ACS sought a declaration that it was entitled to review the files of the plaintiffs in the actions and to provide some of the information to counsel at Alberta Justice, who would be defending the actions on behalf of ACS. The plaintiffs in the proposed class proceeding submitted that ACS was prohibited by statute from reviewing or disclosing the confidential information.

The Alberta Court of Queen's Bench granted a declaration that ACS was entitled to review the files and disclose information to Alberta Justice for the purpose of defending the action and certification application.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - Several actions were commenced against Alberta Children's Services (ACS) for failing to discharge their duty to children in foster care - In one action, there was a pending application to certify a class proceeding - In order to defend the actions and respond to the certification application, ACS claimed the right to review the plaintiffs' files and to provide some of the information to counsel - Some plaintiffs submitted that ACS was prohibited from reviewing and using the confidential information as such would violate the plaintiffs' Charter "privacy" rights - The Alberta Court of Queen's Bench rejected the submission - There was no broad right of privacy in the Charter - It appeared that a Charter-based claim for privacy must be found on some form of seizure by the government, which was not present here - Use by the Province of files created and held by the Province did not breach any "privacy" right - See paragraphs 30 to 35.

Guardian and Ward - Topic 10

General and definitions - General - Confidentiality of child protection files - Several actions were commenced against Alberta Children's Services (ACS) for failing to discharge their duty to children in foster care - In one action, there was a pending application to certify a class proceeding - In order to defend the actions and respond to the certification application, ACS claimed the right to review the plaintiffs' files and to provide some of the information to counsel - Some plaintiffs submitted that ACS was prohibited by statute from reviewing and using the confidential information - The Alberta Court of Queen's Bench declared that ACS was entitled to review the files and disclose information to counsel for the purpose of defending the action and certification application - There was nothing in the Child, Youth and Family Enhancement Act or the Freedom of Information and Protection of Privacy Act that precluded ACS from using the file information to defend the actions for alleged negligence respecting foster children - The court also rejected the submission that permitting use of the information violated the "privacy" of foster children - Acceptance of the plaintiffs' submissions would lead to "absurd results" - See paragraphs 13 to 38.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - Foster children brought actions against the Province for negligent care - In one action, the plaintiffs sought certification of a class proceeding - At discovery in one action, the plaintiffs declined to answer any questions based on information derived from their files, submitting that the Province had no right to use the information - On an application for a declaration that it was entitled to use the file information, the Province proffered the discovery transcript in evidence to flesh out the problem - The Alberta Court of Queen's Bench rejected the plaintiffs' submission that reference to the discovery transcripts breached the implied undertaking rule not to use discovery testimony for collateral purposes - The court stated that "the transcripts are only referred to for a procedural purpose, to demonstrate how this issue arises. Such use is not engaged by the implied undertaking rule." - See paragraphs 9 to 10.

Cases Noticed:

Leonardis v. Leonardis, [2003] A.R. Uned. 391; 36 C.P.C.(5th) 82; 43 R.F.L.(5th) 144; 2003 ABQB 577, refd to. [para. 8].

Wirth Ltd. v. Acadia Pipe & Supply Corp. et al. (1991), 113 A.R. 298; 79 Alta. L.R.(2d) 345; 50 C.P.C.(2d) 273 (Q.B.), refd to. [para. 10].

Spencer v. Canada (Attorney General) et al., [2001] 7 W.W.R. 476; 199 Sask.R. 127; 232 W.A.C. 127; 7 C.P.C.(5th) 280; 2000 SKCA 96, refd to. [para. 15].

Glegg v. Smith & Nephew Inc. et al. (2005), 334 N.R. 201; 253 D.L.R.(4th) 193; 2005 SCC 31, refd to. [para. 17].

A.M. v. Ryan, [1997] 1 S.C.R. 157; 207 N.R. 81; 85 B.C.A.C. 81; 138 W.A.C. 81; 143 D.L.R.(4th) 1; 29 B.C.L.R.(2d) 133, refd to. [para. 17].

K.F. et al. v. White (2001), 142 O.A.C. 116; 53 O.R.(3d) 391; 208 D.L.R.(4th) 276 (C.A.), refd to. [para. 17].

Elguindy v. Prince et al. (2000), 129 O.A.C. 136; 43 C.P.C.(4th) 243 (C.A.), refd to. [para. 17].

Alberta Mortgage and Housing Corp. v. Edson Manor Properties Ltd. et al. (1992), 127 A.R. 138; 20 W.A.C. 138; 8 C.P.C.(3d) 258 (C.A.), refd to. [para. 18].

Jahnke v. Wylie (1993), 144 A.R. 188; 107 D.L.R.(4th) 211; 13 Alta. L.R.(3d) 31 (Q.B.), refd to. [para. 18].

Pocklington Foods Inc. v. Alberta (Provincial Treasurer), [1993] 5 W.W.R. 710; 135 A.R. 363; 33 W.A.C. 363; 8 Alta. L.R.(3d) 431; 15 C.P.C.(3d) 331 (C.A.), refd to. [para. 19].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 32].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, refd to. [para. 36].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 36].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 36].

Statutes Noticed:

Child, Youth and Family Enhancement Act, R.S.A. 2000, c. C-12, sect. 126(1) [para. 5].

Freedom of Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, sect. 3(c), sect. 3(d), sect. 39(1), sect. 40(1), sect. 41 [para. 6].

Authors and Works Noticed:

McIsaac, Barbara, Shields, Rick, and Klein, Kris, The Law of Privacy in Canada, para. 2.2.1 [para. 32].

McNairn, Colin H.H., and Scott, Alexander K., Privacy Law in Canada (2001), p. 18 [para. 35].

Counsel:

G. Alan Meikle, Q.C., and S.L. Bercov, for the applicants;

Robert P. Lee and April Kellett, for the respondents.

This application was heard on August 31, 2005, before Slatter, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on September 15, 2005.