Elder Advocates of Alberta Society et al. v. Alberta et al., 2009 ABCA 403

• Judge: Conrad, Berger and Rowbotham, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: May 27, 2009
• Citations: 2009 ABCA 403;(2009), 469 A.R. 270 (CA)

Elder Advocates of Alta. Soc. v. Alta. (2009), 469 A.R. 270 (CA);

      470 W.A.C. 270

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. DE.032

Elder Advocates of Alberta Society and James O. Darwish, Personal Representative of the Estate of Johanna H. Darwish, deceased (respondents/appellants by cross-appeal/plaintiffs) v. Her Majesty the Queen in Right of Alberta (appellant/respondent by cross-appeal/defendant) and Aspen Regional Health Authority, Calgary Health Region, Capital Health, Chinook Regional Health Authority, David Thompson Regional Health Authority, East Central Health, Northern Lights Health Region, Palliser Health Region, Peace Country Health Region (not a party to the appeal/defendants)

(0803-0272-AC)

Elder Advocates of Alberta Society and James O. Darwish, Personal Representative of the Estate of Johanna H. Darwish, deceased (respondents/appellants by cross-appeal/plaintiffs) v. Her Majesty the Queen in Right of Alberta (not a party to the appeal/defendant) and Aspen Regional Health Authority, Calgary Health Region, Capital Health, Chinook Regional Health Authority, David Thompson Regional Health Authority, East Central Health, Northern Lights Health Region, Palliser Health Region, Peace Country Health Region (appellants/respondents by cross-appeal/defendants)

(0803-0280-AC; 2009 ABCA 403)

Indexed As: Elder Advocates of Alberta Society et al. v. Alberta et al.

Alberta Court of Appeal

Conrad, Berger and Rowbotham, JJ.A.

December 4, 2009.

Summary:

Long term care facility (LTCF) operators, as agents of the regional health authorities, provided long term or auxiliary nursing care to Alberta residents for the government. The LTCF operators' funding came from the government and from money paid by residents as an accommodation charge under the Nursing Homes Act and Nursing Homes Operation Regulation. The plaintiffs brought an action in which they challenged the levying of the accommodation charges, asserting that the monies had been used to pay for health care costs that were the defendants' responsibility, rather than only for accommodation and meals as the legislation required. The plaintiffs applied to certify the action on behalf of a proposed class.

The Alberta Court of Queen's Bench, in a decision reported at (2008), 453 A.R. 1, allowed the application. The defendants appealed. The plaintiffs cross-appealed.

The Alberta Court of Appeal dismissed the appeal and allowed the cross-appeal in part.

Civil Rights - Topic 5655.1

Equality and protection of the law - Particular cases - Provincial health benefits - [See fifth Practice - Topic 209.3 ].

Civil Rights - Topic 8375

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Damages - [See sixth Practice - Topic 209.3 ].

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - [See first Practice - Topic 209.4 ].

Constitutional Law - Topic 6822

Provincial jurisdiction (s. 92) - Direct taxation within the province - What constitutes a tax - [See eleventh Practice - Topic 209.3 ].

Crown - Topic 1143

Contracts with Crown - Terms - Implied terms - [See third Practice - Topic 209.3 ].

Crown - Topic 1645

Torts by and against Crown - Actions against Crown - Defences, bars or exclusions - Policies or "policy" decisions - [See second and ninth Practice - Topic 209.3 ].

Crown - Topic 2887

Crown immunity - Exceptions - Denial of Charter or human rights - [See sixth Practice - Topic 209.3 ].

Crown - Topic 2895

Crown immunity - Exceptions - Flagrant impropriety or bad faith - [See second Practice - Topic 209.3 ].

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - [See tenth Practice - Topic 209.3 ].

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - Long term care facility (LTCF) operators, as agents of the regional health authorities, provided long term or auxiliary nursing care to Alberta residents for the government - The LTCF operators' funding came from the government and from money paid by residents as an accommodation charge - The plaintiffs brought an action in which they asserted that the accommodation charges had been used to pay for health care costs that were the defendants' responsibility, rather than only for accommodation and meals as the legislation required - The action was certified - The defendants appealed, asserting, inter alia, that the certification judge erred in finding that the plaintiffs' proposed interpretation of the applicable statutory regime, on which the certified causes of action depended, was arguable - The defendants submitted that the plaintiffs' claim that the "excessive accommodation charge" might have the effect of subsidizing insured health services was erroneous because the care provided at the facilities were not insured health services and that the certification judge erred in applying principles from the Canada Health Act to forms of care to which it did not apply - The Alberta Court of Appeal dismissed the appeal - The certification judge was only required to determine whether the plaintiffs' contended interpretation was doomed to fail - The success of the claims depended on the interpretation of "accommodation and meals" - The plaintiffs had sufficiently pleaded that the legislative scheme arguably distinguished between "accommodation and meals" that were the responsibility of the LTCF residents and the "insured services" that the defendants were required to provide - Further, other courts had relied on the Canada Health Act in interpreting provincial health regulation - See paragraphs 25 to 31.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - Long term care facility (LTCF) operators, as agents of the regional health authorities (RHAs), provided long term or auxiliary nursing care to Alberta residents for the government - The LTCF operators' funding came from the government and from money paid by residents as an accommodation charge - The plaintiffs brought an action in which they asserted that the accommodation charges had been used to pay for health care costs that were the defendants' responsibility, rather than only for accommodation and meals as the legislation required - The action was certified - The defendants appealed, asserting, inter alia, that the certification judge erred in finding that it was not plain and obvious that the defendants did not owe the members of the proposed class a duty of care in auditing, supervising, monitoring and administering the relevant health care benefits or that, even if such activities were not found to be operational, the plaintiffs could proceed with their claim that such activities were undertaken in bad faith - The Alberta Court of Appeal dismissed the appeal - As this issue involved a question of mixed fact and law, a high degree of deference was owed - It was arguably foreseeable by the defendants that negligence in carrying out their duties in regard to the auditing, supervision and monitoring of the health care benefits and accommodation charge might cause loss or damage to members of the proposed class - It was also arguable that the parties were in sufficient proximity such that a duty of care with respect to operational decisions would arise, given the vulnerability of the plaintiffs as well as their reliance on Alberta and the RHAs to ensure that they were honouring not only their service obligations, but also their payment obligations - Finally, even policy decisions were not entirely immune from judicial scrutiny - A duty of care could be imposed where a bad faith exercise of discretion existed - The certification judge had not erred in concluding that the plaintiffs' claim of bad faith was not doomed to fail - See paragraphs 32 to 50.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - Long term care facility (LTCF) operators, as agents of the regional health authorities (RHAs), provided long term or auxiliary nursing care to Alberta residents for the government - The LTCF operators' funding came from the government and from money paid by residents as an accommodation charge - The plaintiffs brought an action in which they asserted that the accommodation charges had been used to pay for health care costs that were the defendants' responsibility, rather than only for accommodation and meals as the legislation required - The action was certified - The defendants appealed, asserting, inter alia, that the certification judge erred in finding that a cause of action existed for breach of contract - The Alberta Court of Appeal dismissed the appeal -  The certification judge was not called upon to determine the merits of the claim, but simply to determine whether the pleadings supported a finding that the agreements between the RHAs and the members of the proposed class were arguably breached - Terms in a contract could include terms implied by statute - The certification judge had not erred in looking to the relevant legislative scheme as a source of contractual terms - It was arguable that there was an implied term in the contracts that LTCF operators might charge an accommodation charge for accommodation and meals only and not for health care services - See paragraphs 51 to 58.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - Long term care facility (LTCF) operators, as agents of the regional health authorities (RHAs), provided long term or auxiliary nursing care to Alberta residents for the government - The LTCF operators' funding came from the government and from money paid by residents as an accommodation charge - The plaintiffs brought an action in which they asserted that the accommodation charges had been used to pay for health care costs that were the defendants' responsibility, rather than only for accommodation and meals as the legislation required - The action was certified - The defendants appealed, asserting, inter alia, that the certification judge erred in finding that a cause of action existed for unjust enrichment - The Alberta Court of Appeal dismissed the appeal - The certification judge had not erred in concluding that it was arguable that Alberta and the RHAs benefitted from payment of a whole or a portion of the accommodation charge by members of the proposed class - Monies paid under an invalid contract or invalid demands made by public authorities could be recoverable under the law of restitution - Given the court's conclusions on the contended legislative interpretation, it was arguable that (1) using a straightforward economic approach, Alberta (although through third party action) and the RHAs had benefitted from the payment of excessive accommodation charges; (2) the residents of LTCFs have been correspondingly deprived; and (3) the legislative scheme did not countenance the use of a charge for accommodation and meals for anything other than accommodation and meals - See paragraphs 59 to 63.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - Long term care facility (LTCF) operators, as agents of the regional health authorities, provided long term or auxiliary nursing care to Alberta residents for the government - The LTCF operators' funding came from the government and from money paid by residents as an accommodation charge - The plaintiffs brought an action in which they asserted that the accommodation charges had been used to pay for health care costs that were the defendants' responsibility, rather than only for accommodation and meals as the legislation required - The action was certified - The defendants appealed, asserting, inter alia, that the certification judge erred in finding that a cause of action existed for breach of s. 15 of the Charter - The Alberta Court of Appeal dismissed the appeal - The certification judge had not erred in concluding that the legislative scheme here was arguably comprehensive, such that, according to Workers' Compensation Board (N.S.) v. Martin et al. (2003 S.C.C.), it was natural to make a comparison between those who were granted benefits and those who were denied - The court agreed that the legislative scheme was arguably comprehensive and that the particular benefits at issue were arguably not "novel" care services - See paragraphs 65 to 68.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - Long term care facility (LTCF) operators, as agents of the regional health authorities, provided long term or auxiliary nursing care to Alberta residents for the government - The LTCF operators' funding came from the government and from money paid by residents as an accommodation charge - The plaintiffs brought an action in which they asserted that the accommodation charges had been used to pay for health care costs that were the defendants' responsibility, rather than only for accommodation and meals as the legislation required - The action was certified - The defendants appealed, asserting, inter alia, that the certification judge erred in finding that a cause of action existed for breach of the Charter - The defendants submitted that even if the plaintiffs were capable of establishing public interest standing to pursue a s. 52 declaration, there was no basis for a retroactive claim for damages under s. 24(1) of the Charter absent special circumstances such as abuse of power - The Alberta Court of Appeal dismissed the appeal - There were exceptions to the general rule that courts will not award damages for the harm suffered as a result of the mere enactment or application of a law that was subsequently declared to be unconstitutional - It was necessary to distinguish between cases involving monies collected by the government and benefits cases - For example, where taxes had been collected in violation of the Constitution, there was only one possible remedy, restitution to the taxpayer - In benefits cases, a range of options was open - Here, what was involved was the collection of money by the government - It was, therefore, arguable that s. 24(1) of the Charter might apply - See paragraphs 70 to 73.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - Long term care facility (LTCF) operators, as agents of the regional health authorities, provided long term or auxiliary nursing care to Alberta residents for the government - The LTCF operators' funding came from the government and from money paid by residents as an accommodation charge - The plaintiffs brought an action in which they asserted that the accommodation charges had been used to pay for health care costs that were the defendants' responsibility, rather than only for accommodation and meals as the legislation required - The action was certified - The defendants appealed, asserting, inter alia, that the certification judge erred in finding that the issues certified were proper common issues - The defendants argued that the list of more than 60 questions posed was not helpful and obscured the fundamental issue, which was whether the plaintiffs' position regarding the meaning and validity of the legislation was tenable - The Alberta Court of Appeal dismissed the appeal - The fact that there were a large number of common issues did not necessarily suggest that the certification judge made a palpable and overriding error - The Class Proceedings Act supported a purposive approach and provided for extensive flexibility in terms of procedures available to certification judges - See paragraphs 74 to 76.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - Long term care facility (LTCF) operators, as agents of the regional health authorities, provided long term or auxiliary nursing care to Alberta residents for the government - The LTCF operators' funding came from the government and from money paid by residents as an accommodation charge - The plaintiffs brought an action in which they asserted that the accommodation charges had been used to pay for health care costs that were the defendants' responsibility, rather than only for accommodation and meals as the legislation required - The action was certified - The defendants appealed, asserting, inter alia, that the certification judge erred in finding that a class proceeding was the preferable procedure - The Alberta Court of Appeal dismissed the appeal - The decision of a certification judge on the criterion of "preferable procedure" was entitled to special deference, because the judge had to weigh and balance a number of factors - Here, the certification judge's reasons demonstrated that she was alive to the individual issues and carefully balanced the relevant considerations - She correctly took into account the particular vulnerability of the class members - It was difficult to imagine that many of the common issues identified by the plaintiffs could be resolved in one action brought by one individual - Moreover, many of the members of the class did not have the health or resources to support individual actions - Allowing the case to proceed as a class action could assist in reducing the barrier they might face in bringing individual suits - Moreover, separate and individual lawsuits could lead to inconsistent and contradictory results - Finally, s. 8(1) of the Class Proceedings Act provided that a court was not to refuse certification by reason only of the fact that "the relief claimed includes a claim for damages that would require individual assessment after determination of the common issues" - See paragraphs 77 to 80.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - Long term care facility (LTCF) operators, as agents of the regional health authorities, provided long term or auxiliary nursing care to Alberta residents for the government - The LTCF operators' funding came from the government and from money paid by residents as an accommodation charge - The plaintiffs brought an action in which they asserted that the accommodation charges had been used to pay for health care costs that were the defendants' responsibility, rather than only for accommodation and meals as the legislation required - The action was certified - On the defendants' appeal, the plaintiffs cross-appealed, asserting, inter alia, that the certification judge erred in finding that the claim against Alberta for negligence had no hope of success - The Alberta Court of Appeal dismissed the cross-appeal - The certification judge had not erred in determining that the Ministerial directives at issue fell within the policy, rather than the operational, realm as the directions involved a consideration of financial and economic factors, as well as the balancing of divergent interests - Thus, there was no private law duty of care - See paragraphs 84 to 90.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - Long term care facility (LTCF) operators, as agents of the regional health authorities (RHAs), provided long term or auxiliary nursing care to Alberta residents for the government - The LTCF operators' funding came from the government and from money paid by residents as an accommodation charge - The plaintiffs brought an action in which they asserted that the accommodation charges had been used to pay for health care costs that were the defendants' responsibility, rather than only for accommodation and meals as the legislation required - The action was certified - On the defendants' appeal, the plaintiffs cross-appealed, asserting, inter alia, that the certification judge erred in finding that the claim for breach of fiduciary duty had no hope of success - The Alberta Court of Appeal allowed the cross-appeal in part - The certification judge appeared to have focussed her analysis of a fiduciary relationship on the Ministerial direction to the RHAs to charge the maximum accommodation charge allowed in the regulations - With respect to the implementation and administration of that accommodation charge, closer scrutiny was warranted - An arguable case could be made for the presence of a fiduciary duty - The accommodation charge, directed specifically to the class members, could well carry with it a duty on the part of Alberta to administer that sum in the class members' best interests - Proper administration of the charge by Alberta could see the class members entitled to an interest in any surplus over and above the charge's intended application - The court directed the reinstatement of the following common issue: "Did the Province breach any fiduciary duties owed to the class members?" - However, the court agreed with the RHAs that their relationship with the class members was not a fiduciary one - See paragraphs 91 to 100.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - Long term care facility (LTCF) operators, as agents of the regional health authorities, provided long term or auxiliary nursing care to Alberta residents for the government - The LTCF operators' funding came from the government and from money paid by residents as an accommodation charge - The plaintiffs brought an action in which they asserted that the accommodation charges had been used to pay for health care costs that were the defendants' responsibility, rather than only for accommodation and meals as the legislation required - The action was certified - On the defendants' appeal, the plaintiffs cross-appealed, asserting, inter alia, that the certification judge erred in finding that the claim against Alberta and the RHAs for restitution arising from an ultra vires tax had no hope of success - The Alberta Court of Appeal dismissed the cross-appeal - The basic indicia of a tax were (a) compulsory and enforceable by law; (b) imposed under the authority of the legislature; (c) imposed by a public body; and (d) intended for a public purpose - The certification judge did not err in determining that the plaintiffs failed to sufficiently plead the indicia necessary for the finding of an ultra vires tax - Indicium (a) was not met because the statute only established a maximum cap, not a compulsory payment - Even if the court accepted the argument that a practical compulsion existed, indicium (b) failed because the charge was not imposed by statute, but by agreement between a resident and the LTCFs - As such, the claim for an ultra vires tax could not succeed - See paragraphs 101 to 104.

Practice - Topic 209.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Appointment or replacement of representative plaintiff - Long term care facility (LTCF) operators, as agents of the regional health authorities, provided long term or auxiliary nursing care to Alberta residents for the government - The LTCF operators' funding came from the government and from money paid by residents as an accommodation charge - The plaintiffs brought an action in which they asserted that the accommodation charges had been used to pay for health care costs that were the defendants' responsibility, rather than only for accommodation and meals as the legislation required - The action was certified - The defendants appealed, asserting, inter alia, that the certification judge erred in finding that a cause of action existed for breach of the Charter - Arguing that the plaintiffs did not have standing to bring a Charter claim since they were not deprived of their Charter rights, the defendants submitted that the appointment of the Elder Advocates of Alberta Society's appointment as a representative plaintiff was in error because the Society would not otherwise be granted standing to bring Charter claims as of right under either the R. v. Big M Drug Mart Ltd. (1985 S.C.C.) exception or on the basis of public interest - The Alberta Court of Appeal dismissed the appeal - It was arguable that (1) the payment of fees for what could arguably be health care costs was a serious issue; (2) the Society had a genuine interest in the validity of the Charter claim; and (3) it was not reasonable or effective for the disabled and arguably vulnerable members of the proposed class to bring individual Charter claims because class proceedings were designed to give disadvantaged members of society a voice and access to justice - It was, therefore, arguable that the Society should have public interest standing - See paragraph 69.

Practice - Topic 209.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Appointment or replacement of representative plaintiff - Long term care facility (LTCF) operators, as agents of the regional health authorities, provided long term or auxiliary nursing care to Alberta residents for the government - The LTCF operators' funding came from the government and from money paid by residents as an accommodation charge - The plaintiffs brought an action in which they asserted that the accommodation charges had been used to pay for health care costs that were the defendants' responsibility, rather than only for accommodation and meals as the legislation required - The action was certified - The defendants appealed, asserting, inter alia, that the certification judge erred in finding that the plaintiffs were proper representative plaintiffs - The Alberta Court of Appeal dismissed the appeal - Regarding the individual plaintiff, the certification judge made no error in concluding that he was an appropriate representative and that, without a civic-minded person such as him to attempt to ensure that the government was accountable to seniors, it was unlikely that the questions raised and causes pursued would have proceeded - The plaintiff Elder Advocates of Alberta Society, as a non-profit seniors advocacy group concerned with ensuring a properly monitored, cohesive regime of care and medical treatment for the elderly, was an appropriate representative because the heart of the case was an effort to ensure accountability by the government and its agencies in the provision of services to residents of LTCFs - See paragraphs 81 to 83.

Practice - Topic 221

Persons who can sue and be sued - Individuals and corporations - Status or standing - Public interest standing (incl. requirements of) - [See first Practice - Topic 209.4 ].

Restitution - Topic 61

Unjust enrichment - General - [See fourth Practice - Topic 209.3 ].

Restitution - Topic 69

Unjust enrichment - General - Where money paid under invalid law - [See fourth Practice - Topic 209.3 ].

Statutes - Topic 1626

Interpretation - Extrinsic aids - Other statutes - Similar statutes in other jurisdictions - [See first Practice - Topic 209.3 ].

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See second Practice - Topic 209.3 ].

Cases Noticed:

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, refd to. [para. 23].

Hasket v. Equifax Canada Inc. - see Haskett v. Trans Union of Canada Inc. et al.

Haskett v. Trans Union of Canada Inc. et al. (2003), 169 O.A.C. 201; 63 O.R.(3d) 577 (C.A.), refd to. [para. 24].

Windsor v. Canadian Pacific Railway Ltd. (2006), 402 A.R. 162; 2006 ABQB 348, refd to. [para. 23].

Ayrton v. PRL Financial (Alta.) Ltd. et al. (2006), 384 A.R. 1; 367 W.A.C. 1; 2006 ABCA 88, refd to. [para. 24].

Halvorson v. Medical Services Commission (B.C.) et al., [2008] B.C.A.C. Uned. 137; 2008 BCCA 501, refd to. [para. 24].

Campbell et al. v. Flexwatt Corp. et al. (1997), 98 B.C.A.C. 22; 161 W.A.C. 22; 44 B.C.L.R.(3d) 343 (C.A.), refd to. [para. 24].

Pearson v. Inco Ltd. et al. (2005), 205 O.A.C. 30 (C.A.), refd to. [para. 24].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 28].

Windsor v. Canadian Pacific Railway Ltd. (2007), 417 A.R. 200; 410 W.A.C. 200; 2007 ABCA 294, refd to. [para. 28].

Yu et al. v. British Columbia (Attorney General) et al., [2003] B.C.T.C. 1869; 22 B.C.L.R.(4th) 284; 2003 BCSC 1869, refd to. [para. 30].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 33].

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. 33].

Childs v. Desormeaux et al., [2006] 1 S.C.R. 643; 347 N.R. 328; 210 O.A.C. 315; 2006 SCC 18, refd to. [para. 36].

Welbridge Holdings Ltd. v. Greater Winnipeg (Municipality), [1971] S.C.R. 957, refd to. [para. 37].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 38].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1; 64 D.L.R.(4th) 689, refd to. [para. 39].

Eliopoulos et al. v. Ontario (Minister of Health and Long-Term Care) (2006), 217 O.A.C. 69; 82 O.R.(3d) 321 (C.A.), refd to. [para. 39].

Williams v. Canada (Attorney General) et al. (2009), 249 O.A.C. 150; 95 O.R.(3d) 401; 2009 ONCA 378, refd to. [para. 39].

Abarquez et al. v. Ontario (2009), 252 O.A.C. 267; 95 O.R.(3d) 414; 2009 ONCA 374, refd to. [para. 39].

Heaslip Estate v. Mansfield Ski Club Inc. et al. (2009), 252 O.A.C. 1; 67 C.C.L.T.(3d) 1; 2009 ONCA 594, refd to. [para. 44].

Brewer Bros. et al. v. Canada (Attorney General), [1991] 1 F.C. 425; 129 N.R. 3 (F.C.A.), refd to. [para. 46].

Club Pro Adult Entertainment Inc. et al. v. Ontario et al., [2006] O.T.C. 1352; 154 A.C.W.S.(3d) 64 (Sup. Ct.), refd to. [para. 50].

Entreprises Sibeca Inc. v. Frelighsburg (Municipalité), [2004] 3 S.C.R. 304; 325 N.R. 345; 2004 SCC 61, refd to. [para. 50].

Roncarelli v. Duplessis, [1957] S.C.R. 121, refd to. [para. 50].

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. 50].

Wells v. Newfoundland and Board of Commissioners of Public Utilities (Nfld.), [1999] 3 S.C.R. 199; 245 N.R. 275; 180 Nfld. & P.E.I.R. 269; 548 A.P.R. 269, refd to. [para. 55].

May et al. v. Saskatchewan (2006), 277 Sask.R. 21; 2006 SKQB 145, refd to. [para. 55].

M.J.B. Enterprises Ltd. v. Defence Construction (1951) Co. et al., [1999] 1 S.C.R. 619; 237 N.R. 334; 232 A.R. 360; 195 W.A.C. 360, refd to. [para. 55].

Canadian Pacific Hotels Ltd. v. Bank of Montreal, [1987] 1 S.C.R. 711; 77 N.R. 161; 21 O.A.C. 321, refd to. [para. 55].

Garland v. Consumers' Gas Co., [2004] 1 S.C.R. 629; 319 N.R. 38; 186 O.A.C. 128; 2004 SCC 25, refd to. [para. 60].

Pacific National Investments Ltd. v. Victoria (City) et al., [2004] 3 S.C.R. 575; 327 N.R. 100; 206 B.C.A.C. 99; 338 W.A.C. 99; 2004 SCC 75, refd to. [para. 63].

Kingstreet Investments Ltd. et al. v. New Brunswick (Minister of Finance) et al., [2007] 1 S.C.R. 3; 355 N.R. 336; 309 N.B.R.(2d) 255; 799 A.P.R. 255; 2007 SCC 1, refd to. [para. 63].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1; 2004 SCC 78, refd to. [para. 67].

Workers' Compensation Board (N.S.) v. Laseur - see Workers' Compensation Board (N.S.) v. Martin et al.

Workers' Compensation Board (N.S.) v. Martin et al., [2003] 2 S.C.R. 504; 310 N.R. 22; 217 N.S.R.(2d) 301; 683 A.P.R. 301; 2003 SCC 54, refd to. [para. 68].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 69].

Mackin v. New Brunswick (Minister of Finance) - see Rice, P.C.J. v. New Brunswick.

Rice, P.C.J. v. New Brunswick, [2002] 1 S.C.R. 405; 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299; 2002 SCC 13, refd to. [para. 70].

Hislop et al. v. Canada (Attorney General), [2007] 1 S.C.R. 429; 358 N.R. 197; 222 O.A.C. 324; 2007 SCC 10, refd to. [para. 71].

Carom et al. v. Bre-X Mineral Ltd. et al. (1999), 98 O.T.C. 1; 44 O.R.(3d) 173 (Gen. Div.), affd. (1999), 46 O.R.(3d) 315 (Div. Ct.), revd. (2000), 138 O.A.C. 55; 51 O.R.(3d) 236 (C.A.), leave to appeal refused (2001), 283 N.R. 399; 157 O.A.C. 399 (S.C.C.), refd to. [para. 79].

Jeffery et al. v. London Life Insurance Co. et al. (2008), 241 O.A.C. 101; 59 C.P.C.(6th) 30 (Div. Ct.), refd to. [para. 79].

Sutherland Shire Council v. Heyman (1985), 60 A.L.R. 1 (Aust. H.C.), refd to. [para. 87].

Squamish Indian Band v. Canada - see Mathias et al. v. Canada et al.

Mathias et al. v. Canada et al. (2001), 207 F.T.R. 1 (T.D.), refd to. [para. 91].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 92].

Authorson v. Canada (Attorney General), [2000] O.T.C. 719; 53 O.R.(3d) 221 (Sup. Ct.), refd to. [para. 92].

Hodgkinson v. Simms et al., [1994] 3 S.C.R. 377; 171 N.R. 245; 49 B.C.A.C. 1; 80 W.A.C. 1, refd to. [para. 93].

Westbank First Nation v. British Columbia Hydro and Power Authority, [1999] 3 S.C.R. 134; 246 N.R. 201; 129 B.C.A.C. 1; 210 W.A.C. 1, refd to. [para. 101].

Eurig Estate v. Ontario Court (General Division), Registrar, [1998] 2 S.C.R. 565; 213 N.R. 55; 114 O.A.C. 55, refd to. [para. 103].

Authors and Works Noticed:

Osborne, Philip H., The Law of Torts (3rd Ed. 2007), generally [para. 37].

Counsel:

A.A. Garber and N.J. Whitling, for the respondents/cross-appellants, Elder Advocates of Alberta Society et al.;

D.W. Kinloch and W. Branch, for the appellant/cross-respondent, Her Majesty the Queen in Right of the Province of Alberta;

D.M. McLaughlin and L.E. Miller, for the appellants/cross-respondents, Aspen Regional Health Authorities et al.

This appeal and cross-appeal were heard on May 27, 2009, by Conrad, Berger and Rowbotham, JJ.A., of the Alberta Court of Appeal. On December 4, 2009, the court released the following memorandum of judgment.