Elder Advocates of Alberta Society et al. v. Alberta et al., (2008) 453 A.R. 1 (QB)

• Judge: Greckol, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: August 13, 2008
• Citations: (2008), 453 A.R. 1 (QB);2008 ABQB 490

Elder Advocates of Alta. Soc. v. Alta. (2008), 453 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. AU.129

Elder Advocates of Alberta Society and James O. Darwish, Personal Representative of the Estate of Johanna H. Darwish, Deceased (plaintiffs) v. Her Majesty the Queen in Right of Alberta, Aspen Regional Health Authority, Calgary Health Region, Capital Health, Chinook Regional Health Authority, East Central Health, Northern Lights Health Region, Palliser Health Region, Peace Country Health (defendants)

(0503 13196; 2008 ABQB 490)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Greckol, J.

August 13, 2008.

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 allowed the application.

Civil Rights - Topic 5655.1

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

Constitutional Law - Topic 5763

Federal jurisdiction (s. 91) - Taxation - What constitutes a tax - [See sixth 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 Practice - Topic 209.3 ].

Equity - Topic 3611

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

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - Long term care facility (LTCF) operators, as agents of the regional health authorities (RHA), 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 - At issue was whether there was an identifiable class of two or more persons - The plaintiffs proposed a class that included all residents of LTCFs and patients in general hospitals in Alberta who had been assessed as requiring auxiliary hospital or nursing home level care, and the estates of such persons, who, since August 1, 2003, had been charged the accommodation charge, except certain categories of such persons who had received specified subsidies or an exemption - The Alberta Court of Queen's Bench held that there was an identifiable class of two or more persons - There were objective criteria that permitted identification of potential class members - Payment of the accommodation charge was the action that propelled a person into the class - There was no rational basis for defining the class more narrowly - The certification application was allowed - See paragraphs 501 to 515.

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 (RHA), 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 - At issue was whether the pleadings disclosed a cause of action in breach of fiduciary duty - The Alberta Court of Queen's Bench held that the plaintiffs' cause of action in breach of fiduciary duty was bound to fail - To the extent that there was any duty here, it was a public law duty as the Minister had to consider the interests of the LTCF operators, the residents of LTCFs and the public at large before making any such regulation - In setting the accommodation charge and instructing the operators as to the maximum amount, the government was exercising a public authority governed by the relevant statutes - No facts pled by the plaintiffs gave rise to a private law duty on the part of the government to members of the proposed class - Similarly, no facts pled regarding the RHAs gave rise to a private law fiduciary duty on their part - See paragraphs 346 to 377.

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 (RHA), 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 - At issue was whether the pleadings disclosed a cause of action in breach of duty of care - The Alberta Court of Queen's Bench held 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 health care benefits paid by the government to the RHAs, paid by the RHAs to the LTCFs and the money paid for the accommodation charge - It was not plain and obvious that such activities could not be classified as operational, rather than policy decisions - Even if such activities were found to not be operational, the plaintiffs could proceed with their claim that such activities were undertaken in bad faith - As such, while the pleadings did disclose a cause of action based on a breach of a duty of care, any such duty was restricted to the operational decisions relating to auditing, supervising, monitoring and administering health care benefits - The certification application was allowed - See paragraphs 378 to 415.

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 (RHA), 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 - At issue was whether the pleadings disclosed a cause of action in breach of contract - The plaintiffs pled that each member of the proposed class had entered into an agreement with an RHA or their agent regarding the provision of accommodation and meals and that each such agreement contained an express or implied term that money paid by the proposed class member for the accommodation charge would be used for accommodation and meals only, not for health care services, in accordance with the legislative scheme - The Alberta Court of Queen's Bench held that it was not plain and obvious that the claim for breach of contract against the RHAs could not succeed - Agreements existed between LTCF operators (including RHAs) and residents - It was arguable that if the legislative scheme was such that LTCF operators could charge an accommodation charge for accommodation and meals only and not for health care services, a term could be implied in the contracts to that effect - On an application for certification, the facts in the plaintiffs' pleadings were presumed to be true - The facts pled here supported a finding that the agreements had been breached - The certification application was allowed - See paragraphs 416 to 422.

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 (RHA), 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 - At issue was whether the pleadings disclosed a cause of action based on unjust enrichment with the remedy of restitution - The Alberta Court of Queen's Bench held it was not plain and obvious that no such claim existed - The cause of action based on unjust enrichment was not hopeless, but rather analytically defensible, even dubious - It was arguable that the government had benefited from payment of the whole or a portion of the accommodation charge by the proposed class members and, certainly, that the proposed class members were correspondingly deprived - It was arguable that there was no juristic reason for the defendants to retain whatever portion of the accommodation charge was not used for meals and accommodation - However, the defendants had produced voluminous evidence to rebut the prima face case - The certification application was allowed - See paragraphs 423 to 443.

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 (RHA), 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 - At issue was whether the pleadings disclosed a cause of action based on ultra vires action - The plaintiffs alleged that the legislative provisions authorizing the levying of the accommodation charge were contrary to the Nursing Homes Act and the Hospitals Act and were therefore ultra vires as they purported to authorize the imposition of charges for services other than accommodation and meals - The Alberta Court of Queen's Bench held that the cause of action based on ultra vires legislation and action with the remedy of declaration and restitution was not hopeless, but rather analytically defensible - It was not plain and obvious that no such claim existed - The certification application was allowed - See paragraphs 444 to 469.

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 (RHA), 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 - At issue was whether the pleadings disclosed a cause of action based on an ultra vires tax - The plaintiffs pled that the accommodation charge constituted an ultra vires tax in that it was compulsory and enforceable by law, imposed under the authority of the legislature, levied by a public body, intended for a public purpose and had no reasonable nexus with the cost of accommodation and meals - The Alberta Court of Queen's Bench held that it was plain and obvious that this claim would fail - Section 3(1) of the Nursing Homes Operation Regulation provided that an LTCF operator "may charge a resident an accommodation charge" - This implied that the accommodation charge was discretionary - The charge did not possess all of the indicia of a tax - See paragraphs 470 to 477.

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 (RHA), 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 - At issue was whether the pleadings disclosed a cause of action based on s. 15 of the Charter - The plaintiffs asserted differential treatment in the imposition of the accommodation charge as a whole on members of the proposed class while it was not imposed on other patients - The plaintiffs alleged further that the accommodation charge imposed on the proposed class members an obligation to pay for publicly funded health care costs due to their age or mental and/or physical disabilities and that this was a financial burden for health care costs that was not imposed on others - The Alberta Court of Queen's Bench held that the pleadings, on their face, disclosed a cause of action based on s. 15 - The test for class certification had a low threshold - The certification application was allowed - See paragraphs 478 to 500.

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 (RHA), 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 - At issue was whether the claims of the proposed class members raised a common issue - The Alberta Court of Queen's Bench held that the issues as identified by the plaintiffs met the criteria to be certified as common issues - There was a rational connection between the proposed class and the asserted common issues - Most of the common issues involved questions of legislative interpretation, which were central to the class members' claims - The resolution of the common issues would materially advance the litigation - The certification application was allowed - See paragraphs 516 to 528.

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 (RHA), 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 allowed the application - A class proceeding was the preferable procedure for the fair and efficient resolution of the common issues - Questions of fact or law predominated over any questions affecting only individual prospective class members - The only issue that would remain after the resolution of the common issues was a damages calculation based on comparing the cost of accommodation and meals (however determined) to what was paid - Given the mental and/or physical disability and age of members of the proposed class, it was unlikely that a significant number of them would have any interest in individually controlling the prosecution of separate actions - The court was unaware of any claims that would be involved in the class proceeding that were or had been the subject of other proceedings - Other means of resolving the claims would not be practical or more efficient - While difficulties might arise in the administration of the class proceeding, these were not likely to be greater than they would be if relief were sought by other means - See paragraphs 529 to 544.

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 (RHA), 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 - At issue was whether the plaintiffs were the appropriate representative plaintiffs - Neither of the plaintiffs were members of the proposed class, but the plaintiff Darwish's now deceased mother was - The Alberta Court of Queen's Bench held that the plaintiff Darwish was an appropriate representative plaintiff for all of the claims other than a claim based on s. 15 of the Charter - The proposed class was composed of people who were, mostly, aged and disabled by chronic health problems to the point of being institutionalized - Darwish was skilled, experienced, public-minded and had become involved in the action through his concern for LTCF residents, one of whom had been his mother - However, given that his mother was deceased, Darwish was not entitled to act as representative plaintiff in terms of the Charter claim - 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 plaintiff - The certification application was allowed - See paragraphs 545 to 548.

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 fifth Practice - Topic 209.3 ].

Cases Noticed:

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 2001 SCC 46, refd to. [para. 13].

Ayrton v. PRL Financial (Alta.) Ltd. et al. (2005), 370 A.R. 141; 2005 ABQB 311, affd. (2006), 384 A.R. 1; 367 W.A.C. 1; 2006 ABCA 88, refd to. [para. 14].

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. 15].

Windsor v. Canadian Pacific Railway Ltd. (2006), 402 A.R. 162; 2006 ABQB 348, revd. in part (2007), 417 A.R. 200; 410 W.A.C. 200; 2007 ABCA 294, refd to. [para. 16].

T.L. v. Director of Child Welfare (Alta.) (2006), 395 A.R. 327; 2006 ABQB 104, refd to. [para. 16].

Owners-Condominium Plan No. 0020701 v. Investplan Properties Inc. et al., [2006] A.R. Uned. 192; 57 Alta. L.R.(4th) 310; 2006 ABQB 224, refd to. [para. 20].

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. 138].

Cuff et al. v. Canadian National Railway Co., [2007] A.R. Uned. 674; 51 C.P.C.(6th) 383; 2007 ABQB 761, refd to. [para. 341].

B.R. v. L.R. (2005), 380 A.R. 224; 363 W.A.C. 224; 2005 ABCA 365, refd to. [para. 344].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84, refd to. [para. 356].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161, refd to. [para. 358].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1, refd to. [para. 358].

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. 358].

Ontario Black Bear/Ontario Sportsmen and Resource Users Association v. Ontario et al., [2000] O.T.C. 65; 19 Admin. L.R.(3d) 29 (Sup. Ct.), refd to. [para. 358].

Laroza v. Ontario, [2005] O.T.C. 727; 257 D.L.R.(4th) 761 (Sup. Ct.), refd to. [para. 359].

Hislop et al. v. Canada (Attorney General), [2002] O.T.C. 506 (Sup. Ct.), refd to. [para. 360].

Perron v. Canada (Attorney General), [2003] O.T.C. 275; 32 C.P.C.(5th) 165 (Sup. Ct.), refd to. [para. 361].

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. [2003] 2 S.C.R. 40; 306 N.R. 335; 175 O.A.C.. 363; 2003 SCC 39, refd to. [para. 370].

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. 371].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 372].

Harris v. Minister of National Revenue (2001), 214 F.T.R. 1; 2001 FCT 1408, refd to. [para. 373].

Swain v. Law Society, [1982] 2 All E.R. 827 (H.L.), refd to. [para. 374].

Mathias et al. v. Canada et al. (2001), 207 F.T.R. 1 (T.D.), refd to. [para. 375].

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

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 382].

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. 382].

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

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, refd to. [para. 382].

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. 383].

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. 386].

Just v. British Columbia, [1989] 2 S.C.R. 1228; 103 N.R. 1, refd to. [para. 386].

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. 386].

Hercules Management Ltd. et al. v. Ernst & Young et al., [1997] 2 S.C.R. 165; 211 N.R. 352; 115 Man.R.(2d) 241; 139 W.A.C. 241; 146 D.L.R.(4th) 577, refd to. [para. 387].

Martel Building Ltd. v. Canada, [2000] 2 S.C.R. 860; 262 N.R. 285; 2000 SCC 60, refd to. [para. 387].

Welbridge Holdings Ltd. v. Greater Winnipeg (Municipality), [1971] S.C.R. 957; 22 D.L.R.(3d) 470, refd to. [para. 387].

A.L. et al. v. Ontario (Minister of Community and Social Services) (2006), 218 O.A.C. 150; 83 O.R.(3d) 512; 274 D.L.R.(4th) 431 (C.A.), leave to appeal refused (2007), 372 N.R. 390; 239 O.A.C. 198 (S.C.C.), refd to. [para. 387].

Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), [1997] 1 S.C.R. 12; 206 N.R. 363, refd to. [para. 387].

Enterprises Sibeca Inc. v. Frelighsburg (Municipalité), [2004] 3 S.C.R. 304; 325 N.R. 345; 2004 SCC 61, refd to. [para. 390].

Holtslag v. Alberta (2006), 380 A.R. 133; 363 W.A.C. 133; 2006 ABCA 51, refd to. [para. 393].

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. 396].

Cooper v. Hobart et al. (1999), 8 B.C.T.C. 1; 68 B.C.L.R.(3d) 274 (S.C.), refd to. [para. 397].

Holtslag et al. v. Alberta (2000), 263 A.R. 394; 2000 ABQB 351, refd to. [para. 397].

Renova Holdings Ltd. et al. v. Canadian Wheat Board et al. (2005), 270 F.T.R. 300; 2005 FC 386, refd to. [para. 397].

Williams v. Canada (Attorney General) (2005), 76 O.R.(3d) 763 (Sup. Ct.), refd to. [para. 397].

Guimond v. Québec (Procureur général), [1996] 3 S.C.R. 347; 201 N.R. 380, refd to. [para. 398].

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. 398].

A.O. Farms Inc. v. Canada (Minister of Agriculture) et al., [2000] F.T.R. Uned. 510; 28 Admin. L.R.(3d) 315 (T.D.), refd to. [para. 400].

Momi et al. v. Canada (Minister of Citizenship and Immigration) (2005), 283 F.T.R. 143; 2005 FC 1484, refd to. [para. 402].

Sutherland Shire Council v. Heyman (1985), 60 A.L.R. 1 (Aust. H.C.), refd to. [para. 407].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 410].

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. 424].

Peel (Regional Municipality) v. Ontario, [1992] 3 S.C.R. 762; 144 N.R. 1; 59 O.A.C. 81, refd to. [para. 427].

Garland v. Consumers' Gas Co., [2000] O.T.C. 266; 185 D.L.R.(4th) 536 (Sup. Ct.), refd to. [para. 429].

Garland v. Consumers' Gas Co. (2001), 152 O.A.C. 244; 208 D.L.R.(4th) 494 (C.A.), refd to. [para. 430].

Carleton (County) v. Ottawa (City), [1965] S.C.R. 663, refd to. [para. 434].

Pacific National Investments Ltd. v. Victoria (City), [2004] 3 S.C.R. 575; 327 N.R. 100; 206 B.C.A.C. 99; 338 W.A.C. 99, refd to. [para. 435].

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81, refd to. [para. 437].

Mack et al. v. Canada (Attorney General) (2002), 165 O.A.C. 17; 60 O.R.(3d) 737 (C.A.), refd to. [para. 439].

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. 446].

Holland v. Saskatchewan et al. (2007), 299 Sask.R. 109; 408 W.A.C. 109; 281 D.L.R.(4th) 349; 2007 SKCA 18, varied (2008), 376 N.R. 316; 311 Sask.R. 197; 428 W.A.C. 197; 2008 SCC 42, refd to. [para. 462].

R. v. Carling Export Brewing and Malting Co., [1931] A.C. 435 (P.C.), refd to. [para. 465].

Professional Institute of the Public Service of Canada et al. v. Canada (Attorney General) (2007), 66 C.C.P.B. 54 (Ont. Sup. Ct.), refd to. [para. 472].

Allard Contractors Ltd. et al. v. Coquitlam (District) et al., [1993] 4 S.C.R. 371; 160 N.R. 249; 35 B.C.A.C. 241; 57 W.A.C. 241, refd to. [para. 473].

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. 475].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 484].

Thibaudeau v. Minister of National Revenue, [1995] 2 S.C.R. 627; 182 N.R. 1, refd to. [para. 488].

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, refd to. [para. 490].

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, refd to. [para. 492].

Battlefords and District Co-operative Ltd. v. Gibbs and Human Rights Commission (Sask.), [1996] 3 S.C.R. 566; 203 N.R. 131; 148 Sask.R. 1; 134 W.A.C. 1, refd to. [para. 499].

Bywater v. Toronto Transit Commission (1998), 83 O.T.C. 1; 27 C.P.C.(4th) 172 (Gen. Div.), refd to. [para. 502].

Paron et al. v. Alberta (Minister of Environmental Protection) et al. (2006), 402 A.R. 85; 2006 ABQB 375, refd to. [para. 508].

Metera et al. v. Financial Planning Group et al. (2003), 332 A.R. 244; 12 Alta. L.R.(4th) 120; 2003 ABQB 326, refd to. [para. 517].

Rumley et al. v. British Columbia, [2001] 3 S.C.R. 184; 275 N.R. 342; 157 B.C.A.C. 1; 256 W.A.C. 1; 2001 SCC 69, refd to. [para. 524].

T.L. v. Director of Child Welfare (Alta.) (2008), 436 A.R. 217; 2008 ABQB 114, refd to. [para. 530].

Authors and Works Noticed:

American Law Institute, Restatement of the Law of Restitution, Quasi Contracts and Constructive Trusts (1937), p. 12 [para. 435].

Branch, Ward K., Class Actions in Canada (1996) (Looseleaf), paras. 4-1 to 4-8 [para. 342].

Dussault, René, and Borgeat, Louis, Administrative Law: A Treatise (2nd Ed.) (1990), vol. 5 [para. 398].

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.), vol. 2, pp. 55-32 [para. 489]; 55-34 [para. 493].

Horsman, Karen, and Morley, Gareth, Government Liability: Law and Practice (2007) (looseleaf), pp. 3 to 10 [para. 426].

Ng, Michael, Fiduciary Duties: Obligations of Loyalty and Faithfulness (2003) (Looseleaf), p. 5-21, para. 2:20.10 [para. 364].

Counsel:

Allan A. Garber (Parlee McLaws), for the plaintiffs;

David William Kinloch (Alberta Justice, Civil Law Branch), for the defendant, Her Majesty the Queen in Right of Alberta;

Dino M. McLaughlin (Field LLP), for the defendant, Health Authorities.

This application was heard on January 28-30, 2008, by Greckol, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on August 13, 2008.