C.H.S. et al. v. Director of Child Welfare (Alta.), (2008) 452 A.R. 66 (QB)

• Judge: Thomas, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 15, 2008
• Citations: (2008), 452 A.R. 66 (QB);2008 ABQB 513

C.H.S. v. Director of Child Welfare (Alta.) (2008), 452 A.R. 66 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AU.082

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 (plaintiffs) v. Her Majesty the Queen in Right of Alberta, as represented by the Director of Child Welfare (defendant)

(0503 12123; 2008 ABQB 513)

Indexed As: C.H.S. et al. v. Director of Child Welfare (Alta.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Thomas, J.

August 15, 2008.

Summary:

On August 2, 2002, the defendant, Director of Child Welfare, obtained a Temporary Guardianship Order (TGO) regarding C.H.S.'s three children. The child welfare legislation at the time required the Director to file a service plan within 30 days of obtaining a TGO and the failure to do so rendered the TGO void on the 31st day. The plaintiffs (C.H.S. and her three children) alleged that the Director failed to do so in this case and consequently, after the expiry of the 30 day period, the Director no longer had the lawful authority to keep the children in his/her custody and separated from their families. The plaintiffs anticipated bringing an application to have the action certified as a class proceeding under the Class Proceedings Act. The Statement of Claim referred to two potential groups of class members: the parents or guardians of children subject to TGOs, and the children themselves. The plaintiffs applied to amend the Statement of Claim by substituting a fresh Statement of Claim which included, inter alia, allegations challenging the constitutionality of the Child Welfare Amendment Act, 2002, No. 2, based on ss. 2(d), 7, 9 and 12 of the Charter.

The Alberta Court of Queen's Bench, in a decision reported at 403 A.R. 103, dismissed the application. However, the court was willing to entertain the possibility that the plaintiffs could advance an argument based on a s. 7 breach if more precise allegations of the breach were pled. The court gave the plaintiffs leave to bring a further application to amend based on proper evidence. The plaintiffs appealed.

The Alberta Court of Appeal, in a decision reported at 401 A.R. 215; 391 W.A.C. 215, dismissed the appeal. The Director applied to strike the plaintiffs' action pursuant to rule 129(1)(a) for failing to disclose a cause of action or, alternatively, to dismiss the action for want of prosecution under rule 244. The plaintiffs confirmed that they would not be applying for further amendments to the Statement of Claim, other than to substitute a new proposed representative plaintiff. As such, the Director's application to strike was based on the Statement of Claim in its original form.

The Alberta Court of Queen's Bench held as follows with respect to the application to strike under rule 129(1)(a): (a) the Director did not owe a private law duty of care to the parents or guardians of children subject to child protection services and all references relating to the plaintiff C.H.S. in her personal capacity were to be deleted from the Statement of Claim; (b) paragraphs 5, 17-18, 2 and 23 were struck from the Statement of Claim; (c) the plaintiff children had 30 days from the date of the court's judgment to amend the Statement of Claim to provide further particulars of false imprisonment; and (d) it was not plain and obvious that the pleadings did not disclose a private law duty of care owed by the Director to the plaintiff children and those claims would be allowed to proceed. The court dismissed the application under rule 244 and issued directions to move the matter along.

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.

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - [See Equity - Topic 3993 ].

Equity - Topic 3993

Fiduciary or confidential relationships - Practice - Pleadings - On August 2, 2002, the defendant, Director of Child Welfare, obtained a Temporary Guardianship Order (TGO) regarding C.H.S.'s three children - According to the child welfare legislation at the time, the Director was required to file a service plan within 30 days of obtaining a TGO and the failure to do so rendered the TGO void on the 31st day - The plaintiffs (C.H.S. and her three children) alleged that the Director failed to do so in this case and consequently, after the expiry of the 30 day period, the Director no longer had the lawful authority to keep the children in his/her custody and separated from their families - The plaintiffs anticipated bringing an application to have the action certified as a class proceeding under the Class Proceedings Act - The Statement of Claim referred to two potential groups of class members: the parents or guardians of children subject to TGOs, and the children themselves - The Director applied to strike the plaintiffs' action for failing to disclose a cause of action - The Alberta Court of Queen's Bench struck paragraph 23 of the Statement of Claim which alleged breach of fiduciary duty - The court stated that "The plaintiffs seem to be relying on the same allegations made in terms of negligence to support their claims for breach of fiduciary duty. No additional facts are pled to show that a special relationship existed between the plaintiffs and the defendant so as to give rise to a fiduciary duty in these circumstances ... Without further particulars, the pleadings do not disclose a reasonable cause of action of breach of fiduciary duty" - See paragraphs 14 to 20.

Guardian and Ward - Topic 817

Public trustee or guardian - Appointment - Child or adult in need of protection - Temporary appointment - [See Guardian and Ward - Topic 825.4 ].

Guardian and Ward - Topic 825.4

Public trustee or guardian - Appointment - Case plan - On August 2, 2002, the defendant, Director of Child Welfare, obtained a Temporary Guardianship Order (TGO) regarding C.H.S's three children - According to the child welfare legislation at the time, the Director was required to file a service plan within 30 days of obtaining a TGO and the failure to do so rendered the TGO void on the 31st day - The plaintiffs (C.H.S. and her three children) alleged that the Director failed to do so in this case and consequently, after the expiry of the 30 day period, the Director no longer had the lawful authority to keep the children in his/her custody and separated from their families - The plaintiffs anticipated bringing an application to have the action certified as a class proceeding under the Class Proceedings Act - The Statement of Claim referred to two potential groups of class members: the parents or guardians of children subject to TGOs, and the children themselves - The Director applied to strike the plaintiffs' action for failing to disclose a cause of action - The Director referred to the Child Welfare Amendment Act, 2002 No 2 (Amending Act), which received Royal Assent on May 14, 2002, and validated all TGOs granted before February 21, 2002 - Further, the Child Welfare Act was amended and its name was changed to the Child, Youth and Family Enhancement Act (CYFEA) effective November 1, 2004 - At that time the provisions requiring the filing of a care plan were repealed - The Director argued that the effect of the Amending Act and CYFEA was that TGOs granted before February 21, 2002, and from November 1, 2004, were valid regardless of whether a service plan was filed - The Alberta Court of Queen's Bench found that the Amending Act was intended to remove any cause of action arising from the Director's failure to file a care plan in respect of a TGO made before February 21, 2002 - Although the court's findings in that regard did not affect the plaintiff children's claim, it directed that the class claims, if any, should be restricted to those arising only between February 21, 2002, and October 21, 2004, the date that the CYFEA came into effect - See paragraphs 64 to 75.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - On August 2, 2002, the defendant, Director of Child Welfare, obtained a Temporary Guardianship Order (TGO) regarding the C.H.S.'s three children - According to the child welfare legislation at the time, the Director was required to file a service plan within 30 days of obtaining a TGO and the failure to do so rendered the TGO void on the 31st day - The plaintiffs (C.H.S. and her three children) alleged that the Director failed to do so in this case and consequently, after the expiry of the 30 day period, the Director no longer had the lawful authority to keep the children in his/her custody and separated from their families - The plaintiffs anticipated bringing an application to have the action certified as a class proceeding under the Class Proceedings Act - The Statement of Claim referred to two potential groups of class members: the parents or guardians of children subject to TGOs, and the children themselves - The Director applied to strike the plaintiffs' action pursuant to rule 129(1)(a) for failing to disclose a cause of action - The Alberta Court of Queen's Bench held, inter alia, that the Statement of Claim appeared to disclose a possible tort of false imprisonment, although it was lacking in particulars - The court stated that "Throughout the Statement of Claim, the plaintiffs make blanket assertions that are essentially conclusions of law without necessarily pleading all the constituent elements of the tort. This is to be discouraged, as pleadings that state conclusions are deficient and should be struck pursuant to the provisions of rule 129 ... However, in this case and only in relation to the tort of false imprisonment, I will exercise the court's discretion to amend under rule 129. I do this because I believe that the plaintiff children have a triable issue in terms of false imprisonment" - See paragraphs 50 to 59.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - On August 2, 2002, the defendant, Director of Child Welfare, obtained a Temporary Guardianship Order (TGO) regarding C.H.S.'s three children - According to the child welfare legislation at the time, the Director was required to file a service plan within 30 days of obtaining a TGO and the failure to do so rendered the TGO void on the 31st day - The plaintiffs (C.H.S. and her three children) alleged that the Director failed to do so in this case and consequently, after the expiry of the 30 day period, the Director no longer had the lawful authority to keep the children in his/her custody and separated from their families - The plaintiffs anticipated bringing an application to have the action certified as a class proceeding under the Class Proceedings Act - The plaintiffs had previously applied to amend the Statement of Claim to include allegations challenging the constitutionality of the Child Welfare Amendment Act, 2002, No. 2, based on ss. 2(d), 7, 9 and 12 of the Charter - Slatter, J., dismissed that application, with leave to re-apply to amend the Statement of Claim to plead more precise allegations of the s. 7 breach - The Director applied to strike the plaintiffs' action pursuant to rule 129(1)(a) for failing to disclose a cause of action - The Alberta Court of Queen's Bench held that "Given that the plaintiffs have not re-applied to amend the Statement of Claim to plead more precise allegations of the breach of s. 7, and that the current form of the pleadings are even less particularised than the proposed amendments rejected by Slatter, J. in the above decision, I fail to see how paragraph 21 of the Statement of Claim is sufficient to disclose a proper cause of action" - It was plain and obvious that the pleadings did not disclose a cause of action in respect of the s. 7 Charter claim and paragraph 21 was struck from the Statement of Claim - See paragraphs 76 to 83.

Practice - Topic 5360

Dismissal of action - Grounds - General and want of prosecution - Delay - The plaintiffs (C.H.S. and her three children) brought an action against the defendant, Director of Child Welfare - The plaintiffs anticipated bringing an application to have the action certified as a class proceeding under the Class Proceedings Act, but they had not yet filed a notice of motion for certification - The Director applied to dismiss the action for want of prosecution under rule 244 - The Director submitted that the rules with respect to class actions required that the certification hearing proceed on an expeditious basis - Although the Statement of Claim was issued on April 30, 2004, the pleadings had not yet been settled and the plaintiffs had not yet applied for certification of the class action - The Alberta Court of Queen's Bench dismissed the application - The plaintiffs' delay in applying for certification was unreasonable, but not inexcusable - While the plaintiffs could have filed the application for certification, pursuant to an order of Slatter, J., the plaintiffs would have had to wait for the outcome of the Director's application for summary dismissal before they could proceed any further with their certification application - The court was also not satisfied that the Director had suffered serious prejudice attributable to the plaintiffs' delay in proceeding with the certification of the class action - Further, even if the plaintiffs' delay was both inordinate and inexcusable, and thus pursuant to rule 244(4) serious prejudice would be presumed, the court would exercise its discretion to refuse to dismiss the action - The court further stated that proceedings in which the plaintiffs were infants should rarely be dismissed for delay - See paragraphs 89 to 102.

Practice - Topic 5360.1

Dismissal of action - Grounds - General and want of prosecution - Excuse for delay - [See Practice - Topic 5360 ].

Practice - Topic 5369

Dismissal of action - Grounds - General and want of prosecution - Where plaintiff an infant - [See Practice - Topic 5360 ].

Torts - Topic 89

Negligence - Duty of care - To children - [See first Torts - Topic 9159 ].

Torts - Topic 89.1

Negligence - Duty of care - To parents - [See second Torts - Topic 9159 ].

Torts - Topic 3251

Trespass - False imprisonment - General principles - [See first Practice - Topic 2230 ].

Torts - Topic 9159

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Child and family services departments and employees, subcontractors, etc. - On August 2, 2002, the defendant, Director of Child Welfare, obtained a Temporary Guardianship Order (TGO) regarding C.H.S.'s three children - According to the child welfare legislation at the time, the Director was required to file a service plan within 30 days of obtaining a TGO and the failure to do so rendered the TGO void on the 31st day - The plaintiffs (C.H.S. and her three children) alleged that the Director failed to do so in this case and consequently, after the expiry of the 30 day period, the Director no longer had the lawful authority to keep the children in his/her custody and separated from their families - The plaintiffs anticipated bringing an application to have the action certified as a class proceeding under the Class Proceedings Act - The Statement of Claim referred to two potential groups of class members: the parents or guardians of children subject to T.G.O.s, and the children themselves - The Director applied to strike the plaintiffs' action for failing to disclose a cause of action - The Director submitted, inter alia, that there was no private law duty of care, actionable in tort, owed by the Director to the C.H.S. or to any other parent or guardian of a child subject to a TGO - The Alberta Court of Queen's Bench held that the decision in Syl Apps Secure Treatment Centre v. B.D. (S.C.C.) provided a complete answer and the Director did not owe a private law duty of care to the parents or guardians of children subject to child protection services - The court further held that even if it were to undertake its own "Anns" analysis it would reach the same conclusion - See paragraphs 11 to 47.

Torts - Topic 9159

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Child and family services departments and employees, subcontractors, etc. - On August 2, 2002, the defendant, Director of Child Welfare, obtained a Temporary Guardianship Order (TGO) regarding C.H.S.'s three children - According to the child welfare legislation at the time, the Director was required to file a service plan within 30 days of obtaining a TGO and the failure to do so rendered the TGO void on the 31st day - The plaintiffs (C.H.S. and her three children) alleged that the Director failed to do so in this case and consequently, after the expiry of the 30 day period, the Director no longer had the lawful authority to keep the children in his/her custody and separated from their families - The plaintiffs anticipated bringing an application to have the action certified as a class proceeding under the Class Proceedings Act - The Statement of Claim referred to two potential groups of class members: the parents or guardians of children subject to TGOs, and the children themselves - The Director applied to strike the plaintiffs' action for failing to disclose a cause of action - The Director submitted, inter alia, that there was no private law duty of care, actionable in tort, owed by the Director to the minor plaintiffs and all other potential class members who were minors to return children to their parents or guardians where a service plan was not filed within 30 days of obtaining a TGO - The Alberta Court of Queen's Bench held that "Given that child welfare authorities are required to act in the best interests of the children, and in some of those cases it may be in the child's best interests to be re-united with its family despite the initial rationale of the T.G.O., the question of whether the proximity requirement in the Anns analysis is met so as to give rise to a duty of care exists is certainly arguable. Without deciding conclusively whether a private law duty of care is owed to the plaintiff children in these circumstances, I find that it is not plain and obvious that such a claim is doomed to fail and as such, the plaintiff children's claims will not be struck" - See paragraphs 60 to 63.

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - On August 2, 2002, the defendant, Director of Child Welfare, obtained a Temporary Guardianship Order (TGO) regarding C.H.S.'s three children - According to the child welfare legislation at the time, the Director was required to file a service plan within 30 days of obtaining a TGO and the failure to do so rendered the TGO void on the 31st day - The plaintiffs (C.H.S. and her three children) alleged that the Director failed to do so in this case and consequently, after the expiry of the 30 day period, the Director no longer had the lawful authority to keep the children in his/her custody and separated from their families - The plaintiffs anticipated bringing an application to have the action certified as a class proceeding under the Class Proceedings Act - The Director applied to strike the plaintiffs' action for failing to disclose a cause of action - The Alberta Court of Queen's Bench held that the pleadings did not disclose a cause of action for abuse or misfeasance of public office - The tort of misfeasance of public office was an intentional tort that required a plaintiff to prove that the defendant engaged in deliberate unlawful conduct in the exercise of public functions, and that the defendant was aware that the conduct was unlawful and likely to injure the plaintiff - Although the plaintiffs pled that the Director "negligently or intentionally failed to comply with its statutory obligation to file", there were no allegations in the Statement of Claim of the Director's awareness that such deliberate unlawful conduct was likely to injure the plaintiffs - See paragraph 21.

Cases Noticed:

D.L. et al. v. Director of Child Welfare (Alta.) et al. (2002), 299 A.R. 290; 266 W.A.C. 290; 100 Alta. L.R.(3d) 205; 2002 ABCA 46, refd to. [para. 2].

T.S. v. Director of Child Welfare (Alta.) et al. - see D.L. et al. v. Director of Child Welfare (Alta.) et al.

Hughes Estate et al. v. Hughes et al. (2007), 417 A.R. 52; 410 W.A.C. 52; 2007 ABCA 277, affing. (2006), 396 A.R. 250; 2006 ABQB 159, refd to. [para. 8].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 8].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Tottrup v. Lund et al. (2000), 255 A.R. 204; 220 W.A.C. 204; 81 Alta. L.R.(3d) 27 (C.A.), refd to. [para. 9].

Holland v. Saskatchewan et al. (2008), 376 N.R. 316; 311 Sask.R. 197; 428 W.A.C. 197; 2008 SCC 42, refd to. [para. 11].

Owners-Condominium Plan No. 822 2630 v. Danray Alberta Ltd. et al. (2007), 401 A.R. 202; 391 W.A.C. 202; 2007 ABCA 11, refd to. [para. 16].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 17].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 17].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2002] 4 S.C.R. 245; 297 N.R. 1; 2002 SCC 79, refd to. [para. 17].

Authorson v. Canada (Attorney General), [2000] O.T.C. 719; 53 O.R.(3d) 221 (Sup. Ct.), affd. (2002), 157 O.A.C. 278; 58 O.R.(3d) 417 (C.A.), revd. in part [2003] 2 S.C.R. 40; 306 N.R. 335; 175 O.A.C. 363; 2003 SCC 39, refd to. [para. 17].

Sagharian et al. v. Ontario (Minister of Education) et al., [2007] O.T.C. Uned. A45; 154 C.R.R.(2d) 85 (Sup. Ct.), varied 2008 ONCA 411, refd to. [para. 17].

Drady v. Canada et al., [2007] O.T.C. Uned. F30; 159 A.C.W.S.(3d) 177 (Sup. Ct.), refd to. [para. 17].

Laroza v. Ontario, [2005] O.T.C. 727; 257 D.L.R.(4th) 761 (Sup. Ct.), consd. [para. 19].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 21].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 24].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

B.D. et al. v. Children's Aid Society of Halton Region et al. (2007), 365 N.R. 302; 227 O.A.C. 161; 284 D.L.R.(4th) 682; 2007 SCC 38, folld. [para. 28].

Syl Apps Secure Treatment Centre v. B.D. - see B.D. et al. v. Children's Aid Society of Halton Region et al.

K.A.P. v. Children's Aid Society of Toronto et al., [2007] O.T.C. Uned. M36; 2007 CarswellOnt 6808 (Sup. Ct.), consd. [para. 36].

L.L.A. v. Children's Aid Society of Cape Breton-Victoria et al. (2008), 263 N.S.R.(2d) 1; 843 A.P.R. 1; 2008 NSSC 73, consd. [para. 37].

Nova Scotia (Minister of Community Services) v. V.T., [2008] N.S.R.(2d) Uned. 86; 2008 NSSC 218, refd to. [para. 40].

T. v. Director of Child Welfare (Alta.) (2000), 261 A.R. 315; 225 W.A.C. 315; 2000 ABCA 182, refd to. [para. 40].

Director of Child Welfare (Alta.) v. D.A.B. (1998), 222 A.R. 84 (Prov. Ct.), refd to. [para. 40].

G.T.R. v. D.A.B. - see Director of Child Welfare (Alta.) v. D.A.B.

Chopra v. Eaton (T.) Co. et al. (1999), 240 A.R. 201; 1999 ABQB 201, refd to. [para. 51].

R. v. Brockhill Prison (Governor); Ex parte Evans, [2000] 4 All E.R. 15; 258 N.R. 201 (H.L.), refd to. [para. 52].

Murray v. Ministry of Defence, [1988] 2 All E.R. 521; [1988] UKHL 13, refd to. [para. 52].

Frey v. Fedoruk, [1950] S.C.R. 517, refd to. [para. 53].

Forster v. MacDonald et al. (1993), 146 A.R. 270; 108 D.L.R.(4th) 690 (Q.B.), affd. (1995), 174 A.R. 174; 102 W.A.C. 174; 127 D.L.R.(4th) 184 (C.A.), refd to. [para. 53].

Kendall and Kendall v. Gambles, Canada Ltd., Graham, Bowering and Landru, [1981] 4 W.W.R. 718; 11 Sask.R. 361 (Q.B.), refd to. [para. 53].

Dix v. Canada (Attorney General) et al. (2002), 315 A.R. 1; 2002 ABQB 580, refd to. [para. 53].

Otto v. Wallace (J. Grant) and Meyers (1988), 84 A.R. 391; 47 D.L.R.(4th) 439 (Q.B.), refd to. [para. 54].

Plessis v. Plessis, 2004 WL 1489788 (B.C.S.C.), refd to. [para. 55].

Trevorrow v. South Australia (State) (No. 5), [2007] SASC 285, consd. [para. 56].

Meering v. Grahame-White Aviation Co. (1919), 122 L.T. 44 (C.A.), refd to. [para. 57].

Shiels v. Telus Communications Inc. (2003), 12 Alta. L.R.(4th) 251; 2003 ABQB 53, refd to. [para. 59].

CNG Producing Co. v. Alberta (Provincial Treasurer) (2000), 264 A.R. 42; 2000 ABQB 251, affd. (2002), 317 A.R. 171; 284 W.A.C. 171; 2002 ABCA 207, refd to. [para. 71].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 80].

Child and Family Services of Winnipeg Central v. K.L.W. et al. (2000), 260 N.R. 203; 150 Man.R.(2d) 161; 230 W.A.C. 161; 2000 SCC 48, refd to. [para. 80].

Volk v. 331323 Alberta Ltd. et al. (1998), 212 A.R. 64; 168 W.A.C. 64; 1998 ABCA 54, refd to. [para. 87].

Kuziw v. Kucheran Estate (2000), 266 A.R. 284; 228 W.A.C. 284; 2000 ABCA 226, refd to. [para. 87].

Wallersteiner v. Moir, [1974] 3 All E.R. 217 (C.A.), refd to. [para. 92].

Stangar Holdings Ltd. et al. v. Collins Barrow et al., [2008] A.R. Uned. 48; 2008 ABCA 112, refd to. [para. 92].

Clairmonte v. Canadian Imperial Bank of Commerce, [1970] 3 O.R. 97 (C.A.), refd to. [para. 99].

Dressler v. Dressler (2005), 377 A.R. 45; 41 Alta. L.R.(4th) 27; 2005 ABQB 93, refd to. [para. 100].

Barnes v. RBC Dominion Securities Inc. et al. (2006), 393 A.R. 115; 2006 ABQB 290, refd to. [para. 100].

Filipchuk v. Ladouceur et al. (2001), 277 A.R. 192; 242 W.A.C. 192 (C.A.), refd to. [para. 100].

Lethbridge Motors Co. et al. v. American Motors (Canada) Ltd. et al. (1987), 79 A.R. 321; 53 Alta. L.R.(2d) 326 (C.A.), refd to. [para. 100].

Enlow v. Dembicki (1995), 165 A.R. 366; 89 W.A.C. 366; 124 D.L.R.(4th) 1 (C.A.), refd to. [para. 102].

Wittig et al. v. Westfair Foods Ltd. et al. (1995), 175 A.R. 157; 31 Alta. L.R.(3d) 348 (Q.B. Master), refd to. [para. 102].

Authors and Works Noticed:

Klar, Lewis N., Tort Law (3rd Ed. 2003), pp. 26 [para. 51]; 55 [para. 53].

Linden, Allen M., and Feldthusen, Bruce, Canadian Tort Law (8th Ed. 2006), p. 50 [para. 53].

Counsel:

Robert P. Lee (Old Strathcona Law Offices), for the plaintiffs;

G. Alan Meikle, Q.C., and Susan L. Bercov (Alberta Justice - Civil Law Branch), for the defendant, The Director of Child Welfare;

Ward Branch (Branch MacMaster), for the defendant, The Director of Child Welfare.

This application was heard on June 26 and 27, 2008, before Thomas, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on August 15, 2008.