C.H.S. et al. v. Director of Child Welfare (Alta.),

• Judge: Bielby,C,Martin
• Neutral Citation: 2010 ABCA 15
• Citation: (2010), 469 A.R. 359 (CA),2010 ABCA 15,469 AR 359,(2010), 469 AR 359 (CA),469 A.R. 359
• Date: 03 September 2009
• Court: Court of Appeal (Alberta)

C.H.S. v. CFS (2010), 469 A.R. 359 (CA);

      470 W.A.C. 359

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. FE.008

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

(0803-0233-AC; 2010 ABCA 15)

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

Alberta Court of Appeal

Côté and Martin, JJ.A., and Bielby, J.(ad hoc)

January 29, 2010.

Summary:

A temporary guardianship order (TGO) obtained on August 2, 2002, authorized the Director of Child Welfare to assume guardianship over three brothers. The mother of the boys filed a Statement of Claim on her own behalf and as litigation guardian for her three sons. The pleadings alleged that the Director failed to file a plan of care within 30 days of the date of the TGO as was then required by the Child Welfare Act and failed to return the children to their mother once the TGO became void. The claim alleged negligence, unlawful confinement, breach of fiduciary duty, as well as constitutional torts based on the violation of the plaintiffs' Charter rights. The tort of misfeasance in a public office could also be inferred from the allegations. The claim anticipated that the action would be prosecuted as a class action, although it had not yet been certified. The Child Welfare Amendment Act (the Amending Act), which came into effect on May 14, 2002, proclaimed that a TGO issued prior to February 21, 2002, was deemed to be valid even if a care plan had not been filed. The Director applied to strike out the pleadings pursuant to rule 129(1)(a) for failing to disclose a cause of action. Based on the Amending Act, the Director also sought to have the scope of the potential class limited to TGOs issued after February 21, 2002.

The Alberta Court of Queen's Bench, in a decision reported at (2008), 452 A.R. 66, struck the mother's negligence claim as 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 also struck the claims for breach of fiduciary duty, misfeasance in a public office, and constitutional torts. The court further held that the Amending Act effectively limited the proposed class to those involving TGOs that were filed after February 21, 2002, but before November 1, 2004 (the date when the Director's obligation to file a care plan was removed from the legislation). The court permitted the infant plaintiffs to maintain their claims based on negligence and false imprisonment, but required further particulars in respect of the latter claim. The plaintiffs appealed.

The Alberta Court of Appeal allowed the appeal in part. The court held that the claims for breach of fiduciary duty on behalf of the plaintiff children could be maintained. The court also granted the plaintiffs leave to amend their pleadings to clear up defects in relation to the constitutional torts. The court also held that the Amending Act did not preclude a cause of action by those children and parents or guardians affected by TGOs issued prior to February 21, 2002.

Editor's Note: This judgment was released concurrently with the decision in L.C. et al. v. Alberta et al., 469 A.R. 375; 470 W.A.C. 375; 2010 ABCA 14. 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 1200

Security of the person - General - [See Civil Rights - Topic 8589 ].

Civil Rights - Topic 8589

Canadian Charter of Rights and Freedoms - Practice - Pleadings - A temporary guardianship order (TGO) was obtained, authorizing the Director of Child Welfare to assume guardianship over three brothers - The mother filed a Statement of Claim on her own behalf and as litigation guardian for her three sons - The claim, which was anticipated to be prosecuted as a class action, alleged that the Director failed to file a plan of care within the time period then mandated by the Child Welfare Act and failed to return the children to their mother once the TGO became void - The claim alleged, inter alia, that the Director violated the plaintiffs' rights under the Charter, particularly "their rights to life, liberty and security of the person" - A chambers judge struck the claim on a motion under rule 129(a) - On appeal, the Alberta Court of Appeal held that the allegations in the Statement of Claim loosely supported an argument that the plaintiffs were deprived of their security of the person - The court stated that while the current pleadings were lacking, given that they failed to identify any principle of fundamental justice, it would grant the plaintiffs leave to amend their Statement of Claim to address that deficiency - The court further stated that "there is authority for the proposition that a wilful disregard for the appellants' Charter rights, or an intent to violate those rights, forms an essential part of a constitutional tort, and must be properly pled ... To the extent that the appellants have failed to make any such allegations in their pleadings, we allow them leave to amend their Statement of Claim to meet the proper requirements. Rule 113 would seemingly permit such an assertion to simply be pled as a fact, since it goes to the Director's state of mind" - See paragraphs 34 to 39.

Crown - Topic 1514

Torts by and against Crown - General and definitions - Constitutional torts - [See Civil Rights - Topic 8589 ].

Crown - Topic 1785

Torts by and against Crown - Practice - Pleadings - [See Civil Rights - Topic 8589 ].

Equity - Topic 3607

Fiduciary or confidential relationships - General principles - Relationships which are not fiduciary - [See Equity - Topic 3611 ].

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - A temporary guardianship order (TGO) was obtained, authorizing the Director of Child Welfare to assume guardianship over three brothers - The mother filed a Statement of Claim on her own behalf and as litigation guardian for her three sons - The claim, which was anticipated to be prosecuted as a class action, alleged, inter alia, breach of fiduciary based on the Director's failure to file a plan of care within the time period then mandated by the Child Welfare Act and the Director's failure to return the children to their mother once the TGO became void - A chambers judge struck the claim as disclosing no cause of action because the Director did not owe fiduciary duties to the children and their family members - The plaintiffs appealed - The Alberta Court of Appeal held that the plaintiffs could maintain the claim of breach of fiduciary on behalf of the children - The court agreed that the scope of the fiduciary duty owed by the Director to children in its care was narrow and did not include a fiduciary duty to act in the best interests of the child - However, the list of quasi-parental fiduciary duties owed to the child was not closed and required, at a minimum, a duty of loyalty - The allegations in the Statement of Claim, if established, could fall within the duty of a fiduciary to act loyally - However, the court held that the Director did not owe a fiduciary duty to the parent or guardian of a child in the Director's care and that aspect of the plaintiffs' claim had to fail - See paragraphs 29 to 33.

Guardian and Ward - Topic 815.4

Public trustee or guardian - Appointment - Child in need of protection - Duties of agency - [See Equity - Topic 3611 ].

Guardian and Ward - Topic 825.4

Public trustee or guardian - Appointment - Case plan - A temporary guardianship order (TGO) obtained on August 2, 2002, authorized the Director of Child Welfare to assume guardianship over three brothers - The mother filed a Statement of Claim on her own behalf and as litigation guardian for her three sons - The pleadings alleged civil liability resulting from the Director's failure to file a plan of care within 30 days of the date of the TGO as was then required by the Child Welfare Act and the Director's failure to return the children to their mother once the TGO became void - The claim was anticipated to be prosecuted as a class action - The Child Welfare Amendment Act (the Amending Act), which came into effect on May 14, 2002, proclaimed that a TGO issued prior to February 21, 2002, was deemed to be valid even if a care plan had not been filed - Based on the Amending Act, the Director sought to have the scope of the potential class limited to TGOs issued after February 21, 2002, by striking those claims that related to TGOs issued prior to that date - The Alberta Court of Appeal held that even if the intention of the Amending Act was to validate those TGOs issued prior to February 21, 2002, it still did not preclude a cause of action by those children and parents or guardians affected by TGOs issued prior to that date - The court stated that "It is not beyond all doubt that a court may award damages based on the Director's failure to file a care plan, even if that omission does not result in a void TGO" - See paragraphs 40 to 42.

Practice - Topic 2103

Pleadings - Amendment of pleadings - To remedy deficiency - [See Civil Rights - Topic 8589 ].

Practice - Topic 2120

Pleadings - Amendment of pleadings - Statement of claim - General - [See Practice - Topic 2230 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - The chambers judge stated that "Given the high threshold that a party has to meet in order to have its application under rule 129(1)(a) granted, once the applicant has satisfied the 'plain and obvious' test, the court ought not to prevent the pleadings from being struck by amending them to ensure they disclose a cause of action" - The Alberta Court of Appeal stated that "This conclusion, while discretionary in nature and subject to a reasonableness standard, is, in our respectful opinion, too restrictive. To adopt the chambers judge's test would be to invariably strike pleadings whenever the plaintiff has not met the formalities required by the Rules. The court is given the discretion to permit a party to amend its pleadings, which provides a prospective plaintiff with an opportunity to have his or her day in court, so long as a defendant is put on notice as to the precise nature of the claim being made against it. A host of cases on striking out so hold. While it may not be appropriate to do so in every case, the chambers judge did not appear to balance these objectives and therefore, in our opinion, erred in the exercise of his discretion" - See paragraphs 43 to 44.

Torts - Topic 89.1

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

Torts - Topic 9159

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Child and family services departments and employees, subcontractors, etc. - A temporary guardianship order (TGO) was obtained authorizing the Director of Child Welfare to assume guardianship over three brothers - The mother filed a Statement of Claim on her own behalf and as litigation guardian for her three sons - The claim, which was anticipated to be prosecuted as a class action, alleged, inter alia, negligence in relation to the Director's failure to file a plan of care within the time period then mandated by the Child Welfare Act and the Director's failure to return the children to their mother once the TGO became void - A chambers judge determined that the children could maintain their negligence claim, but struck the mother's claim on the basis that it disclosed no cause of action as the Director did not owe her a common law duty of care - The Alberta Court of Appeal dismissed the mother's appeal from that finding - The best interests of a child could conflict with the interests of the child's family members - The court stated that "the statutory scheme gives rise to an inherent conflict, such that a duty of care is precluded. To find otherwise would place undue and unwanted pressure on the Director to make decisions under the Act that may not align with the overriding policy objective of ensuring the best interests of the child" - See paragraphs 20 to 28.

Cases Noticed:

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

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

D.L. et al. v. Director of Child Welfare (Alta.) et al. (2002), 299 A.R. 378; 266 W.A.C. 378; 2002 ABCA 90, refd to. [para. 5].

Eastaugh v. Halat et al. (2009), 448 A.R. 377; 447 W.A.C. 377; 2009 ABCA 122, refd to. [para. 15].

Tottrup v. Lund et al., [2000] 9 W.W.R. 21; 255 A.R. 204; 220 W.A.C. 204; 2000 ABCA 121, refd to. [para. 16].

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

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. 21].

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

B.D. et al. v. Children's Aid Society of Halton Region et al., [2007] 3 S.C.R. 83; 365 N.R. 302; 227 O.A.C. 161; 284 D.L.R.(4th) 682; 2007 SCC 38, refd to. [para. 21].

Holland v. Saskatchewan et al., [2008] 2 S.C.R. 551; 376 N.R. 316; 311 Sask.R. 197; 428 W.A.C. 197; 2008 SCC 42, refd to. [para. 21].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 21].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 22].

L.C. et al. v. British Columbia (Minister of Children and Families), [2005] B.C.T.C. 1668; 49 B.C.L.R.(4th) 64; 2005 BCSC 1668, refd to. [para. 22].

A.G. v. British Columbia (Superintendent of Family and Child Services) (1989), 38 B.C.L.R.(2d) 215; 61 D.L.R.(4th) 136 (C.A.), refd to. [para. 22].

M.D. et al. v. British Columbia et al., [2000] B.C.T.C. 287; 2000 BCSC 700, refd to. [para. 22].

D.B. et al. v. Children's Aid Society of Durham Region et al., [1994] O.J. No. 643 (Gen. Div.), affd. (1996), 92 O.A.C. 60; 136 D.L.R.(4th) 297 (C.A.), refd to. [para. 22].

A.A.D. et al. v. Tanner et al. (2004), 188 Man.R.(2d) 15; 2004 MBQB 213, refd to. [para. 22].

P.K.A. v. Children's Aid Society of Toronto, 2007 CarswellOnt 6808 (Sup. Ct.), refd to. [para. 22].

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, refd to. [para. 22].

D.C. v. Children's Aid Society of Cape Breton-Victoria (2009), 278 N.S.R.(2d) 394; 886 A.P.R. 394; 2009 NSCA 73, refd to. [para. 22].

K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 230 D.L.R.(4th) 513; 2003 SCC 51, refd to. [para. 30].

Reference under s. 18(1) of the Supreme Court Act - see Broome et al. v. Prince Edward Island.

Broome et al. v. Prince Edward Island (2009), 282 Nfld. & P.E.I.R. 61; 868 A.P.R. 61; 2009 PECA 1, leave to appeal granted [2009] S.C.C.A. No. 72, refd to. [para. 30].

Perez v. Galambos et al. (2009), 394 N.R. 209; 276 B.C.A.C. 272; 468 W.A.C. 272; 2009 SCC 48, refd to. [para. 33].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76; 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 35].

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387; 88 N.R. 205; 71 Sask.R. 1, refd to. [para. 35].

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. 36].

Ward v. Vancouver (City) et al. (2009), 265 B.C.A.C. 174; 446 W.A.C. 174; 2009 BCCA 23, leave to appeal granted (2009), 399 N.R. 394 (S.C.C.), refd to. [para. 38].

Burns v. Johnston et al., [2003] O.T.C. 290 (Sup. Ct.), refd to. [para. 38].

Whatcott v. Schluff et al. (2009), 329 Sask.R. 25 (Q.B.), refd to. [para. 38].

McGillivary v. New Brunswick (1994), 149 N.B.R.(2d) 311; 381 A.P.R. 311; 116 D.L.R.(4th) 104 (C.A.), leave to appeal refused (1995), 188 N.R. 319; 164 N.B.R.(2d) 317; 421 A.P.R. 317 (S.C.C.), refd to. [para. 38].

V.A.H. v. Lynch et al. (2000), 255 A.R. 359; 220 W.A.C. 359; 2000 ABCA 97, refd to. [para. 41].

Decock et al. v. Alberta et al. (2000), 255 A.R. 234; 220 W.A.C. 234; 79 Alta. L.R.(3d) 11; 2000 ABCA 122, refd to. [para. 41].

Statutes Noticed:

Rules of Court (Alta.), rule 129(1)(a) [para. 14].

Counsel:

R.P. Lee, for the appellant;

G.A. Meikle, Q.C., and S.L. Bercov, for the respondent.

This appeal was heard on September 3, 2009, before Côté and Martin, JJ.A., and Bielby, J.(ad hoc), of the Alberta Court of Appeal. The following reasons for judgment reserved of the Court of Appeal were delivered on January 29, 2010.