K. v. E.K. et al., (2004) 362 A.R. 195 (QB)

• Judge: Read, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 30, 2004
• Citations: (2004), 362 A.R. 195 (QB);2004 ABQB 159

K. v. E.K. (2004), 362 A.R. 195 (QB)

MLB headnote and full text

Temp. Cite: [2004] A.R. TBEd. MY.118

Mr. K (plaintiff) v. E.K., L.N., Her Majesty the Queen in Right of Alberta as Represented by the Director of Child Welfare, Sharon Heron, David Phillips, George Kallay, Paul Duckett, Gloria Roth, Bill Simmonds and John Doe (defendants)

(0103 12438; 2004 ABQB 159)

Indexed As: K. v. E.K. et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Read, J.

March 3, 2004.

Summary:

The plaintiff sued the Province of Alberta and employees of the Province. The plaintiff claimed that he was abused by his biological mother and stepfather, commencing in 1976 when he was two years of age and culminating in his apprehension in 1981. The statement of claim asserted that the Province failed to properly investigate the abuse and failed to protect him from its continuation. The statement of claim further asserted that the Province failed in its duty to obtain counselling services for him and in its duties as legal guardian to commence a lawsuit on his behalf and to apply to the Crimes Compensation Board on his behalf within the limitation period. Paragraphs 33 to 39 of the statement of claim, made various claims of "systemic negligence". The defendants applied to strike out paragraphs 33 to 39. The plaintiff cross-applied to require the Province to produce further documents largely relating to the claims of systemic negligence.

The Alberta Court of Queen's Bench heard the applications in Chambers and issued an oral judgment. Almost seven months later, the parties reappeared before the court to settle the terms of the oral judgment. The defendants sought to add certain wording to portions of the order to reflect the order that the court intended. The plaintiff sought a wording that would require the province to produce a large number of documents. Before the terms of the order were finalized, the plaintiff applied to amend his statement of claim based partially on his understanding of the oral judgment. Both parties agreed that the application was inextricably linked to the previous applications. The parties agreed that the court was not functus on the issues dealt with on the initial applications because the order had not yet been entered or, alternatively, that the court could proceed whether or not it was functus. Further,the parties agreed that the most appropriate resolution was to hear further argument on initial application and the application to amend and to provide a written decision.

The Alberta Court of Queen's Bench determined the issues.

Civil Rights - Topic 1202

Security of the person - General - Protection of citizen by state - The plaintiff sued the Province of Alberta and employees of the Province - The plaintiff claimed that he was abused by his biological mother and stepfather, commencing when he was aged two and culminating in his eventual apprehension - The Province sought to strike, inter alia, paragraph 48 of the statement of claim - Paragraph 48 alleged that the Province failed to protect the plaintiff from a violation of his s. 7 Charter rights to life, liberty and security of the person - In oral argument, the plaintiff indicated that the allegation concerned the government's failure to sue itself on behalf of children in the child welfare system - The Alberta Court of Queen's Bench struck the paragraph - Section 7 related to one's physical or mental integrity and not to a person's right to commence an action for damages - See paragraphs 75 to 79.

Civil Rights - Topic 1206.5

Security of the person - General - Right to psychological integrity (incl. dignity, reputation, etc.) - [See Civil Rights - Topic 1202 ].

Civil Rights - Topic 1210

Security of the person - General - Denial of security - What constitutes - [See Civil Rights - Topic 1202 ].

Civil Rights - Topic 3805

Cruel and unusual treatment or punishment - General - Cruel - Meaning of - The plaintiff sued the Province of Alberta and employees of the Province - The plaintiff claimed that he was abused by his biological mother and stepfather, commencing when he was aged two and culminating in his eventual apprehension - The Province sought to strike, inter alia, paragraph 47 of the statement of claim - Paragraph 47 alleged that the Province failed to protect the plaintiff from being subjected to cruel and unusual treatment or punishment (Charter, s. 12) - The Alberta Court of Queen's Bench stated that it appeared that the allegation concerned a lack of exercise of state control over the plaintiff after he was returned to his mother's care - A mother regaining custody was not unusual treatment - A determination of the best interest of the child could not be construed as cruel - The plaintiff also indicated that the allegation concerned a failure to provide counselling and the plaintiff's subjugation to a grossly negligent government department - It was difficult to imagine how failure to provide counselling could be equated to "treatment" - Section 12 did not apply and the paragraph was to be struck - See paragraphs 71 to 73.

Civil Rights - Topic 3808

Cruel and unusual treatment or punishment - General - Treatment - Meaning of - [See Civil Rights - Topic 3805 ].

Civil Rights - Topic 3830

Cruel and unusual treatment or punishment - What constitutes cruel and unusual treatment or punishment - Circumstances not constituting - [See Civil Rights - Topic 3805 ].

Damages - Topic 1330

Exemplary or punitive damages - Pleading - The plaintiff sued the Province of Alberta and employees of the Province - The plaintiff claimed that he was abused by his biological mother and stepfather, commencing when he was aged two and culminating in his eventual apprehension - The statement of claim asserted that the Province failed to, inter alia, properly investigate the abuse and protect him - Paragraphs 33 to 39 made various claims of "systemic negligence" - The Province sought to strike, inter alia, paragraph 37 which alleged that a large punitive damage award was necessary to deter similar future negligence - The Alberta Court of Queen's Bench stated that punitive damages might be warranted in some cases of negligence - Deterrence was a consideration - However, it was not a proper part of a pleading in that it did not allege facts which established the elements of a cause of action - A claim for punitive damages was properly placed in a prayer for relief - However, the court declined to strike the paragraph where it did not cause confusion and was innocuous - See paragraphs 60 and 61.

Damages - Topic 1330

Exemplary or punitive damages - Pleading - The plaintiff sued the Province of Alberta and employees of the Province - The plaintiff claimed that he was abused by his biological mother and stepfather, commencing when he was aged two and culminating in his eventual apprehension - The Province sought to strike, inter alia, paragraph 51 of the statement of claim - Paragraph 51 alleged concealment of negligence through litigation strategy and that the plaintiff had to establish "systemic negligence" to support his claim for punitive damages - The Alberta Court of Queen's Bench concluded that systemic negligence was irrelevant to the punitive damages claim and struck the paragraph - In a situation where the plaintiff had standing only vis-à-vis the harm suffered by him (as opposed to a class-action proceeding), it was impossible to rely on harm to others through similar acts to found punitive damages - Aside from the standing issue, the criteria for determining punitive damages would necessitate discovery of parties unrelated to the action and would potentially result in a windfall to the single plaintiff for wrongs done to others - See paragraphs 82 to 85.

Estoppel - Topic 376

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - General principles - The Alberta Court of Queen's Bench summarized the prerequisites for the application of res judicata - The court stated that even where the prerequisites existed, the court retained a discretion to refuse to give effect to estoppel per rem judicatum - The court noted that the Court of Appeal had held that res judicata did not apply to a subsequent interlocutory application in the same action - The second application was also subject to control by the exercise of judicial discretion in determining whether it was frivolous or vexatious in the circumstances - Dismissing a motion to strike pleadings did bar a second motion by cause of action estoppel and motions to amend were also affected by issue and cause of action estoppel - However, a second motion to dismiss on different grounds than on the first motion was not barred - See paragraphs 25 to 29.

Estoppel - Topic 382

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - In interlocutory proceedings - [See Estoppel - Topic 376 ].

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - The plaintiff sued the Province of Alberta and employees of the Province - The plaintiff claimed that he was abused by his biological mother and stepfather, commencing when he was aged two and culminating in his eventual apprehension - The statement of claim asserted that the Province failed to, inter alia, properly investigate the abuse and protect him - There were also various claims of "systemic negligence" - The Province sought to strike paragraphs and proposed paragraphs of the statement of claim which alleged that various government departments acted negligently respecting other children within the child welfare system - The plaintiff asserted that Ritter, J., allowed these amendments in another action by different plaintiffs against the Province and other defendants and, therefore, the application to strike was res judicata - The Alberta Court of Queen's Bench rejected the assertion where the parties to this application were not the same parties or privies to the proceedings before Ritter, J. - The individual tortfeasors were also different - Further, the actions concerned different allegations of unlawful acts and, therefore, the same question was not decided - See paragraphs 25 to 35.

Practice - Topic 1308.1

Pleadings - General principles - Prayer for relief - [See first Damages - Topic 1330 ].

Practice - Topic 1989

Pleadings - Particulars - Particulars of particular matters - Misfeasance in or abuse of public office - The plaintiff sued the Province of Alberta and employees of the Province - The plaintiff claimed that he was abused by his biological mother and stepfather, commencing when he was aged two and culminating in his eventual apprehension - The statement of claim asserted that the Province failed to, inter alia, properly investigate the abuse and protect him - Paragraphs 33 to 39 made various claims of "systemic negligence" including a claim for abuse of power - The Alberta Court of Queen's Bench asserted that if the plaintiff meant abuse of public office, he had to establish "targeted malice", whereby a public officer used his or her authority for the specific purpose of harming the plaintiff, or that the official was aware of the impropriety of his or her conduct and knew or could foresee that harm would result - If this was such an allegation, it was unclear who or what it related to - Nor was the resulting harm identified - The pleading was to be struck unless the plaintiff supplied more specifics - See paragraph 64.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See first Damages - Topic 1330 ].

Practice - Topic 2230.1

Pleadings - Striking and pleadings - Grounds - Alternative claims - The plaintiff sued the Province of Alberta and employees of the Province - The plaintiff claimed that he was abused by his biological mother and stepfather, commencing when he was aged two and culminating in his eventual apprehension - The statement of claim asserted that the Province failed to, inter alia, properly investigate the abuse and protect him - Paragraphs 33 to 39 made various claims of "systemic negligence" - The Province sought to strike paragraphs 33 to 39, asserting that the allegations concerned a public duty and there was no cause of action for breach of a public duty - The Province asserted that either the plaintiff would prove that the child welfare workers involved were negligent, in which case he would succeed regardless of other children similarly harmed, or the workers were not negligent, in which case he would fail regardless of the other children - The Alberta Court of Queen's Bench stated that it was not the court's task to strike alternative claims on the basis of speculation as to how the lawsuit would unravel - The argument was properly directed at the breadth of discovery sought - This did not mean that every imperfection in the child welfare system was relevant to the plaintiff's claims - Only those inadequate procedures which resulted in foreseeable harm to him were relevant - The court determined the defendant's application accordingly - See paragraphs 35 to 94.

Practice - Topic 2230.3

Pleadings - Striking out pleadings - Grounds - Failure to plead material facts - [See Practice - Topic 1989 ].

Practice - Topic 2234

Pleadings - Striking out pleadings - Grounds - Unnecessary, irrelevant, immaterial or redundant - [See second Damages - Topic 1330 and Practice - Topic 2230.1 ].

Practice - Topic 2247

Pleadings - Striking out pleadings - Bars - Second application re same pleading - [See Estoppel - Topic 376 ].

Practice - Topic 4573

Discovery - What documents must be produced - Documents related to or relevant and material to matters in issue - The plaintiff sued the Province of Alberta and employees of the Province - The plaintiff claimed that he was abused by his biological mother and stepfather, commencing when he was aged two and culminating in his eventual apprehension - The statement of claim asserted, inter alia, various claims of "systemic negligence" - The plaintiff applied to require the Province to produce further documents largely relating to the systemic negligence claims - The Alberta Court of Queen's Bench concluded that unless a document could be shown to have more than minor assistance in determining the issues raised in the pleadings, it did not have to be produced - It was open to the court to restrict production to time periods relevant to the allegations in the pleadings even where the plaintiff had not specifically limited time in the request for production - In some circumstances production of documentation relating to children in care other than the plaintiff might be relevant and material, but only where the plaintiff established a relative similarity and nexus in time or other reason that the documentation might be relevant and material to the allegations involving the plaintiff - See paragraphs 95 to 108.

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - [See Practice - Topic 1989 ].

Cases Noticed:

Decock et al. v. Alberta et al. (2000), 255 A.R. 234; 220 W.A.C. 234; 2000 ABCA 122, refd to. [para. 5].

Wilson et al. v. Lind, [1985] O.J. No. 535 (H.J.), refd to. [para. 23].

Curry v. Advocate General Insurance Co. of Canada, [1986] O.J. No. 2564 (H.C.), refd to. [para. 23].

Bailey v. Guarantee Trust Co. of Canada (1987), 77 A.R. 387 (C.A.), refd to. [para. 26].

Peters v. Remington (2004), 339 A.R. 326; 312 W.A.C. 326; 2004 ABCA 5, refd to. [para. 26].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1, refd to. [para. 27].

Talbot v. Pan Ocean Oil Corp. and Pan Ocean Oil Ltd. (1977), 5 A.R. 361; 3 Alta. L.R.(2d) 354 (C.A.), refd to. [para. 28].

Pocklington Foods Inc. v. Alberta (Provincial Treasurer) (1995), 165 A.R. 155; 89 W.A.C. 155; 28 Alta. L.R.(3d) 96 (C.A.), refd to. [para. 28].

410675 Alberta Ltd. v. Trail South Developments Inc. et al. (2001), 293 A.R. 181; 257 W.A.C. 181; 2001 ABCA 274, leave to appeal denied (2002), 293 N.R. 190; 312 A.R. 340; 281 W.A.C. 340 (S.C.C.), refd to. [para. 28].

Staebler (H.L.) Ltd. v. Lohnes (1986), 38 A.C.W.S.(2d) 385 (Ont. Dist. Ct.), refd to. [para. 29].

Sporan Farms Inc. v. Hook's Ranches Ltd., [1993] B.C.J. No. 426 (S.C.), refd to. [para. 29].

International Radiography and Inspection Services (1976) Ltd. v. General Accident Assurance Co. of Canada (1996), 193 A.R. 1; 135 W.A.C. 1; 47 Alta. L.R.(3d) 137 (C.A.), refd to. [para. 31].

Royplast Ltd. v. Alberta (Treasury Branches), [2003] A.R. Uned. 60; 2003 ABQB 130, refd to. [para. 38].

Tottrup v. Lund et al. (2000), 255 A.R. 204; 220 W.A.C. 204; 186 D.L.R.(4th) 226 (C.A.), refd to. [para. 40].

E.D.G. v. Hammer et al. (2003), 310 N.R. 1; 187 B.C.A.C. 193; 307 W.A.C. 193; 2003 SCC 52, refd to. [para. 41].

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; 2003 SCC 51, refd to. [para. 41].

M.B. v. British Columbia (2003), 309 N.R. 375; 187 B.C.A.C. 161; 307 W.A.C. 161; 2003 SCC 53, refd to. [para. 41].

Hill Estate v. Chief Constable of West Yorkshire, [1988] 2 All E.R. 238; 102 N.R. 241 (H.L.), refd to. [para. 45].

Mitchell Estate v. Ontario (2003), 175 O.A.C. 211 (Div. Ct.), refd to. [para. 45].

Green v. Millar, [2002] B.C.T.C. 1727; 2002 BCSC 1727, refd to. [para. 72].

M.K.S. and J.D. v. Nova Scotia (Minister of Community Services) (1988), 86 N.S.R.(2d) 209; 218 A.P.R. 209 (Co. Ct.), affd. (1989), 88 N.S.R.(2d) 418; 225 A.P.R. 418 (C.A.), refd to. [para. 73].

S. et al. v. Saskatchewan (Minister of Social Services) (1983), 26 Sask.R. 235; 149 D.L.R.(3d) 400 (Q.B.), leave to appeal allowed (1983), 31 Sask.R. 75; 4 D.L.R.(4th) 765 (C.A.), refd to. [para. 73].

Nova Scotia (Minister of Social Services) v. P.D.E. (1987), 77 N.S.R.(2d) 176; 191 A.P.R. 176; 6 R.F.L.(3d) 377 (C.A.), refd to. [para. 73].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1; 24 C.R.(4th) 281, refd to. [para. 73].

Mirhadizadeh v. Ontario (1987), 27 C.R.R. 131 (Ont. H.C.), refd to. [para. 76].

Wittman v. Emmott et al. (1991), 53 B.C.L.R.(2d) 228 (C.A.), leave to appeal denied [1991] 3 S.C.R. xii; 136 N.R. 319; 6 B.C.A.C. 80; 13 W.A.C. 80, refd to. [para. 76].

Vysek v. Nova Gas International Ltd. et al. (2002), 303 A.R. 209; 273 W.A.C. 209; 2002 ABCA 112, refd to. [para. 77].

Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General) (2004), 315 N.R. 201; 183 O.A.C. 1; 2004 SCC 4, refd to. [para. 78].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201, refd to. [para. 82].

Golden Capital Securities Ltd. v. Holmes et al., [2003] B.C.T.C. 1265; 2003 BCSC 1265, refd to. [para. 82].

Mikisew Cree First Nation v. Canada et al. (1997), 214 A.R. 194 (Q.B.), refd to. [para. 84].

Weatherill Estate v. Weatherill et al. (2003), 337 A.R. 180; 2003 ABQB 69, appld. [para. 98].

Hirtz v. Public Trustee (Alta.) (2000), 267 A.R. 52; 2000 ABQB 3326, affd. (2002), 303 A.R. 25; 273 W.A.C. 25; 2002 ABCA 29, appld. [paras. 100, 102].

321665 Alberta Ltd. v. Mobil Oil Canada et al., [2002] A.R. Uned. 564; 2002 ABQB 967, refd to. [para. 104].

750869 Alberta Ltd. v. Cambridge Shopping Centres Ltd. et al. (2001), 283 A.R. 391; 2001 ABQB 36, appld. [para. 105].

Cheyne v. Alberta, [2003] A.J. No. 350; 2003 ABQB 244, appld. [para. 106].

T.W. v. University of Alberta Hospital (2000), 267 A.R. 169; 2000 ABQB 387, appld. [para. 107].

Authors and Works Noticed:

Lange, Donald J., The Doctrine of Res Judicata in Canada (2000), p. 166 [para. 29].

Counsel:

Robert Lee (Old Strathcona Law Offices), for the plaintiff;

Michael Kinash (Bryan and Company), for the defendants, Her Majesty the Queen in Right of Alberta as represented by the Director of Child Welfare, Sharon Heron, David Phillips, George Kallay, Paul Duckett, Gloria Roth and Bill Simmonds.

Read, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, heard these applications on January 30, 2004, and delivered the following memorandum of decision on March 3, 2004.