Decock et al. v. Alberta et al., (2000) 255 A.R. 234 (CA)

• Judge: Irving, Russell and Sulatycky, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: April 25, 2000
• Citations: (2000), 255 A.R. 234 (CA);2000 ABCA 122;186 DLR (4th) 265;[2000] 7 WWR 219;255 AR 234;79 Alta LR (3d) 11;[2000] AJ No 419 (QL);220 WAC 234

Decock v. Alta. (2000), 255 A.R. 234 (CA);

    220 W.A.C. 234

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. MY.025

Barbara Decock, Tara Leigh Decock, an infant by her Next Friend, Barbara Decock and Lindsey Allison Decock, an infant by her Next Friend, Barbara Decock (appellants/plaintiffs) v. Her Majesty the Queen in Right of Alberta, the Honourable Ralph Klein, the Honourable Shirley McClellan, the Banff Mineral Springs Hospital, "John Does" 1-4 and "Jane Does" 1-4 (respondents/defendants)

(97-17245)

Kelly Schmitz and Kevin Schmitz (appellants/plaintiffs) v. Her Majesty the Queen in Right of Alberta, the Honourable Ralph Klein, the Honourable Shirley McClellan, the Foothills Provincial General Hospital, "John Does" 1-4 and "Jane Does" 1-4 (respondents/defendants)

(97-17244)

Darin F. Banister, Sandra Banister and Ann Schierle (appellants/plaintiffs) v. Her Majesty the Queen in Right of Alberta, the Honourable Ralph Klein, the Honourable Shirley McClellan, the Banff Mineral Springs Hospital, The Foothills Provincial General Hospital, "John Does" 1-4 and "Jane Does" 1-4 (respondents/defendants)

(97-17247)

Joel Scott, an infant by his Next Friend Martin Scott and Martin Scott (appellants/plaintiffs) v. Her Majesty the Queen in Right of Alberta, the Honourable Ralph Klein, the Honourable Shirley McClellan, Jon Pascoe and Habiba Bhojani (respondents/defendants)

(97-17275)

Indexed As: Decock et al. v. Alberta et al.

Alberta Court of Appeal

Irving, Russell and Sulatycky, JJ.A.

April 25, 2000.

Summary:

The plaintiffs commenced four separate actions, claiming damages suffered as a result of receiving negligent medical care, attention and treatment which resulted in injury and, in certain cases, death. Each of the pleadings named, among others, Klein, the Premier of Alberta, and McClellan, the Minster of Health, personally as defendants. Klein and McClellan applied to be removed as named defendants and to strike all claims against them. The chambers judge allowed the application. The plaintiffs appealed.

The Alberta Court of Appeal, Irving, J.A, dissenting, allowed the appeal. The court ordered that Klein and McClellan be restored as named defendants along with all the claims against them, but that they not be identified by title. The court granted the plaintiffs leave to amend their pleadings to include the Premier and the Minister of Health as defendants in their capacities as representatives of the Crown.

Crown - Topic 1526

Torts by and against Crown - Liability of Crown for acts of servants - The Alberta Court of Appeal stated that "[i]t is a well-established principle of tort law that a Crown officer or agent cannot be held vicariously liable for the actions of another Crown employee. Because both parties are servants of the Crown, it is the Crown which will bear the vicarious lia­bility for their actions." - See paragraph 75.

Crown - Topic 1526

Torts by and against Crown - Liability of Crown for acts of servants - [See first Practice - Topic 253 ].

Practice - Topic 253

Persons who can sue and be sued - Gov­ernment - Ministers in their personal capacity (incl. premier) - The plaintiffs commenced four separate actions, claiming damages suffered as a result of receiving negligent medical care, attention and treat­ment which resulted in injury and, in certain cases, death - Each of the plead­ings named, among others, Premier Klein and McClellan, the Minster of Health, as defendants - The chambers judge ordered that Klein and McClellan be removed as named defendants and struck out all claims against them - The Alberta Court of Appeal reinstated Klein and McClellan as named defendants, stating that they could be named personally as defendants - The court stated that "[p]ursuant to the prin­ciple of individual responsibility, liability in tort will always fall firstly upon the individual tortfeasors." - Further, the vicarious liability of the Crown for the conduct of its officers did not obviate from the general rule of individual responsibility - See paragraphs 2, 22 to 40.

Practice - Topic 253

Persons who can sue and be sued - Gov­ernment - Ministers in their personal capacity (incl. premier) - The plaintiffs commenced four separate actions - Each of the pleadings named, among others, Premier Klein and McClellan, the Minster of Health, as defendants - The style of cause used "The Honourable" in referring to Klein and McClellan - The Alberta Court of Appeal held that the use of "The Honourable" did not indicate that the plaintiffs intended to sue Klein and Mc­Clellan only in their capacities as officers of the Crown - The court stated that it was neither necessary nor desirable to use "The Honourable" in the style of cause - The court struck the references to "The Honourable" from the style of cause and maintained Klein and McClellan as per­sonal defendants - See paragraphs 55 to 56.

Practice - Topic 257

Persons who can sue and be sued - Gov­ernment - Premier - The Alberta Court of Appeal held that the Premier of Alberta was not a suable entity because the office and role of Premier was not specifically recognized by statute or common law - However, the court stated that the Premier might properly be named as a defendant in his or her representative capacity - See paragraphs 41 to 47.

Practice - Topic 257

Persons who can sue and be sued - Gov­ernment - Premier - The Alberta Court of Appeal stated that a public official should not be named, either by title or office, as a defendant - Pursuant to rule 87(b) of the Rules of Court, the proper manner for such a claim was to name the officer in his or her representative capacity (i.e., Her Maj­esty the Queen as represented by the Min­ister of Health) - See paragraphs 48 to 54.

Practice - Topic 257

Persons who can sue and be sued - Gov­ernment - Premier - [See second Practice -Topic 253 ].

Practice - Topic 258

Persons who can sue and be sued - Gov­ernment - Minister of Crown - The Alberta Court of Appeal stated that to have status to be sued in Alberta an entity had to be recognized under either statute or common law - The Department of Health Act and the Government Organization Act provided for the establishment of the De­partment of Health and the office of the Minister of Health, prescribed the method for appointing the Minster and outlined some of the Minister's main powers and responsibilities - The court held that the Minister of Health was a statutorily recog­nized person - See paragraphs 48 to 52.

Practice - Topic 258

Persons who can sue and be sued - Gov­ernment - Minister of Crown - [See sec­ond Practice - Topic 253 and second Practice - Topic 257 ].

Practice - Topic 306

Parties - General - Naming of in style of cause - [See second Practice - Topic 253 ].

Practice - Topic 863

Parties - Striking out parties - Procedure - The Alberta Court of Appeal stated that "[a]l­though rules 38 and 129 appear to share an overlapping effect, the purpose of the Rules is very different. Rule 38 is designed to ensure that the proper parties are included within a claim, while rule 129 is designed to ensure that the pleadings reveal a valid cause of action between those parties. Evidence is admiss­ible on an application under either rule with the stated exception of rule 129(1)(a)." - See paragraph 20.

Practice - Topic 2205

Pleadings - Striking out pleadings - Ap­plication for - How made - [See Practice -Topic 863 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - The plaintiffs com­menced four separate actions against, among others, Premier Klein and McClellan, the Minister of Health - The plaintiffs alleged that Klein and McClellan were negligent for: failing to provide health care, failing to ensure the provision of proper health care and medical trans­port, allowing an inadequately staffed and supplied hospital and ambulance service to remain in operation, failing to supervise and being wilfully blind to the actions of others - Klein and McClellan applied to strike out the actions against them - The Alberta Court of Appeal refused to strike the actions, holding that it was not "plain and obvious" that the claims revealed no reasonable cause of action - Further, it could not be said that the claims were scandalous, frivolous, vexatious, embar­rassing or an abuse of the court's process -See paragraphs 67 to 90.

Practice - Topic 2231

Pleadings - Striking out pleadings - Grounds - False, frivolous, vexatious or scandalous - [See Practice - Topic 2230 ].

Practice - Topic 2239.1

Pleadings - Striking out pleadings - Grounds - Abuse of process - Hopeless suit - [See Practice - Topic 2230 ].

Torts - Topic 2647

Vicarious liability - Particular persons - Cabinet ministers (incl. premier) - [See first Crown - Topic 1526 and first Prac­tice - Topic 253 ].

Cases Noticed:

Paragon Controls Ltd. v. Valtek Interna­tional et al., [1998] A.R. Uned. 104 (C.A.), refd to. [para. 13].

Blomme v. Herman et al. (1993), 145 A.R. 16; 55 W.A.C. 16 (C.A.), refd to. [para. 13].

Russell Food Equipment (Calgary) Ltd. v. Valleyfield Investments Ltd. (1962), 40 W.W.R.(N.S.) 292 (Alta. T.D.), refd to. [para. 13].

Carmacks Construction Ltd. v. Beaumont (Village) and Pentagon Industries Ltd. (1981), 30 A.R. 328 (Q.B. Master), refd to. [para. 19].

George v. Harris (1999), 95 O.T.C. 13 (Gen. Div.), refd to. [para. 22].

Fox-Hitchner v. Alberta, Butt and Foster (1977), 6 A.R. 43; 2 Alta. L.R.(2d) 379 (T.D.), refd to. [paras. 25, 115].

Such and Such (R. & W.) Holdings Ltd. v. Alberta et al. (1991), 126 A.R. 16 (Q.B.), not folld. [para. 26].

P.A.B. v. Children's Foundation et al., [1999] 2 S.C.R. 534; 241 N.R. 266; 124 B.C.A.C. 119; 203 W.A.C. 119, refd to. [para. 31].

G.T.-J. et al. v. Griffiths et al., [1999] 2 S.C.R. 570; 241 N.R. 201; 124 B.C.A.C. 161; 203 W.A.C. 161, refd to. [para. 31].

Leeds et al. v. Alberta (Minister of Envi­ronment) et al., [1989] 6 W.W.R. 559; 98 A.R. 178 (C.A.), refd to. [para. 34].

Hamilton and Malm v. Alberta (Minister of Public Works, Supply and Services) et al., [1991] 5 W.W.R. 232; 118 A.R. 267 (Q.B.), refd to. [para. 34].

Gidley v. Palmerston (1822), 3 B. & B. 275; 129 E.R. 1290 (C.P.D.), refd to. [para. 37].

International Association of Science and Technology for Development et al. v. Hamza (1995), 162 A.R. 349; 83 W.A.C. 349; 28 Alta. L.R.(3d) 125 (C.A.), refd to. [para. 43].

Reference Re Amendment of the Constitu­tion of Canada - see Constitutional Amendment References 1981 (Man., Nfld., Que.).

Constitutional Amendment References 1981 (Man., Nfld., Que.), [1981] 1 S.C.R. 753; 39 N.R. 1; 11 Man.R.(2d) 1; 34 Nfld. & P.E.I.R. 1; 95 A.P.R. 1, refd to. [para. 44].

Cerny v. Canadian Industries Ltd., [1972] 6 W.W.R. 88 (Alta. C.A.), refd to. [para. 62].

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

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 62].

Canada Deposit Insurance Corp. et al. v. Prisco et al. (1994), 158 A.R. 305 (Q.B.), refd to. [para. 62].

Alexander et al. v. Pacific Trans-Ocean Resources Ltd. et al. (1991), 115 A.R. 317 (Q.B.), refd to. [para. 68].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304, refd to. [para. 68].

Boudreault v. Barrett et al. (1995), 174 A.R. 71; 102 W.A.C. 71; 33 Alta. L.R.(3d) 60 (C.A.), refd to. [para. 69].

Galand Estate v. Stewart (1992), 135 A.R. 129; 33 W.A.C. 129; 6 Alta. L.R.(3d) 399 (C.A.), refd to. [para. 69].

Korte et al. v. Deloitte, Haskins & Sells et al. (1993), 135 A.R. 389; 33 W.A.C. 389; 8 Alta. L.R.(3d) 337 (C.A.), leave to appeal refused [1993] 3 S.C.R. v; 160 N.R. 319; 149 A.R. 159; 63 W.A.C. 159, refd to. [para. 70].

Crown Trust v. Ontario (1988), 64 O.R.(2d) 774 (H.C.), refd to. [para. 75].

Kresic v. Alberta Securities Commission (1985), 37 Alta. L.R.(2d) 342 (Q.B.), refd to. [para. 75].

Fullowka v. Whitford (1996), 147 D.L.R.(4th) 531 (N.W.T.C.A.), leave to appeal refused [1997] S.C.C.A. No. 58; 222 N.R. 320, refd to. [para. 79].

Murphy v. Kenting Drilling Co. (1996), 190 A.R. 77 (Q.B. Master), refd to. [para. 89].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 92].

Gauthier et al. v. Alberta Recoveries & Rentals Ltd. et al. (1990), 110 A.R. 260 (Q.B.), refd to. [para. 92].

Brown et al. v. Alberta et al. (1993), 146 A.R. 128 (Q.B.), refd to. [para. 92].

Nixon v. Fitzgerald (1982), 457 U.S. 731 (U.S. Sup. Ct.), refd to. [para. 110].

Barr v. Matteo (1959), 360 U.S. 564, refd to. [para. 111].

Statutes Noticed:

Department of Health Act, S.A. 1989, c. D-21.5, sect. 2 [para. 50].

Government Organization Act, S.A. 1994, c. G-8.5, sect. 2(1)(a), sect. 2(1)(c) [para. 51].

Hospitals Act, R.S.A. 1980 c. H-11, sect. 27(1) [para. 105].

Proceedings Against the Crown Act, R.S.A. 1980, c. P-18, sect. 5(1)(a), sect. 5(2), sect. 5(3) [para. 30].

Rules of Court (Alta.), rule 38(1) [paras. 16, 101]; rule 38(2) [para. 101]; rule 38(3) [paras. 16, 101]; rule 38(4), rule 38(5), rule 38(6) [para. 101]; rule 38(7) [paras. 16, 101]; rule 87(b) [para. 53]; rule 129 [paras. 18, 101].

Authors and Works Noticed:

Aronson and Whitmore, Public Torts and Contracts (1982), p. 20 [paras. 32, 33].

Hogg, Peter W., Constitutional Law of Canada (1997) (Looseleaf Ed.), vol. 1, s. 1.10(e) [para. 45].

Hogg, Peter W., Liability of the Crown (2nd Ed. 1989), pp. 141 [paras. 23, 75, 109]; 142 [paras. 23, 109]; 145 [paras. 32, 33].

McCallum, Sandra K., Personal liability of public servants: an anachronism (1984), 27 Can. Pub. Admin. 611, p. 616 [para. 36].

Otis, Ghislain, Personal Liability of Public Officials for Constitutional Wrongdoing: A Neglected Issue of Charter Application (1996), 24 Man. L.J. 23, pp. 26, 27 [para. 22].

Sandstrom, Kurt, Personal and Vicarious Liability for the Wrongful Acts of Gov­ernment Officials: An Approach for Liability under the Charter of Rights and Freedoms (1990), 24 U.B.C.L. Rev. 229, p. 262 [para. 35].

Stevenson, W.A., and Côté, J.E., Alberta Civil Procedure Handbook (1998), pp. 85, 86 [para. 63]; 88 [para. 93].

Counsel:

C.R. Suntjens, for the appellants;

D.W. Kinloch, for the respondents.

This appeal was heard on January 12, 1998, by Irving, Russell and Sulatycky, JJ.A., of the Alberta Court of Appeal.

The decision of the Court of Appeal was filed on April 25, 2000, and the following opinions were filed:

Russell, J.A. (Sulatycky, J.A., concurring) - see paragraphs 1 to 96;

Irving, J.A., dissenting - see paragraphs 97 to 116.