L.C. et al. v. Alberta et al., (2015) 605 A.R. 1 (QB)

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 01, 2014
• Citations: (2015), 605 A.R. 1 (QB);2015 ABQB 84

L.C. v. Alta. (2015), 605 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2015] A.R. TBEd. FE.050

LC, EMP by Her Litigation Representative Phillip Tinkler, DC by his next Friend LC and CC by her next Friend LC (plaintiffs) v. Her Majesty the Queen in Right of Alberta and Metis Settlements Child & Family Services, Region 10 (defendants)

(0703 10836; 2015 ABQB 84)

Indexed As: L.C. et al. v. Alberta et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

February 4, 2015.

Summary:

In June 2003, a four month old child was apprehended by the Director of Child Welfare. In May 2004, the Director obtained a temporary guardianship order (TGO), but then failed to file a care plan as was then required by the Child Welfare Act. The TGO was reviewed in November 2004. The Director later obtained a permanent guardianship order. In September 2006, the child was returned to her mother. The mother sued on behalf of the child and herself (the plaintiffs), alleging that the TGO had been rendered void by the Director's failure to file a care plan. The case was in case management and was a proposed class action. This application represented the plaintiffs' attempt to expand the scope of the action to include siblings and grandparents, and the Crown's attempt to limit the scope to children impacted by such circumstances and the parents of these children.

The Alberta Court of Queen's Bench, in a decision reported at (2014), 587 A.R. 69, determined the issues. The plaintiffs proposed amendments (89 paragraphs) to their statement of claim. In January 2014, they withdrew the proposed amendments. The Crown sought costs against the plaintiffs' counsel (Lee) personally. Lee cross-applied for costs. The Crown withdrew its costs application. Lee sought costs on an enhanced basis for having to defend himself against the Crown's costs application. He applied for permission to rely on records produced in litigation involving other plaintiffs suing the Crown and child welfare authorities as well as transcripts of questioning or examinations for discovery in other litigation. Lee considered that the records would help justify his actions in bringing and then withdrawing the amendments.

The Alberta Court of Queen's Bench, in a decision reported at (2014), 596 A.R. 335, allowed the application.

The Alberta Court of Queen's Bench dismissed Lee's application for enhanced costs.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Barristers and Solicitors - Topic 841

Duty to court - Liability for costs - General - The Alberta Court of Queen's Bench stated that "... while I recognize that it is presumed that counsel are acting on the instructions from their clients, that is not the full answer to the personal liability of counsel for costs. Counsel are not duty bound to follow the instructions of their clients. That is abundantly clear in criminal matters, where counsel cannot allow a client to testify if counsel believe the client will commit perjury. 'I was just following orders' does not work as a defence for lawyers any more than it worked for the Watergate burglars or at Nuremburg. Lawyers also owe a duty of candour to their opponents and have duties to the court regarding appropriate professional practices. The balance between duty to client and duty to the court was discussed at length in Schreiber v Mulroney, 2007 CanLII 31754 (ONSC). Gavin McKenzie's article The Ethics of Advocacy, The Advocates' Society Journal (September, 2008) states that a lawyer's duty to the client and duty to the court are given equal prominence." - See paragraphs 247 to 250.

Barristers and Solicitors - Topic 841

Duty to court - Liability for costs - General - The Alberta Court of Queen's Bench stated that "I do not think that a lawyer who has simply followed orders when he ought not have done so can hide behind the instructions of his or her client. In appropriate circumstances, the lawyer may become personally responsible for costs. In this case, regardless of instructions from Mr. Tinkler [his client], Mr. Lee exposed himself to personal liability for costs by putting forth an unreasonable pleading impugning the reputation and integrity of opposing lawyers. Once it was reasonably justifiable for the government defendants to seek costs personally against Mr. Lee, I do not see that it matters that they sought solicitor and client costs instead of ordinary party and party costs. The principle for awarding costs against a lawyer personally are the same, whether the opposing party seeks ordinary costs or enhanced costs." - See paragraphs 253 to 255.

Barristers and Solicitors - Topic 841

Duty to court - Liability for costs - General - The plaintiffs proposed amendments (89 paragraphs) to their statement of claim, but later withdrew the proposed amendments - The defendant Crown sought costs against the plaintiffs' counsel (Lee) personally - The Crown withdrew its costs application - Lee sought costs on an enhanced basis for having to defend himself against the Crown's costs application - The Alberta Court of Queen's Bench dismissed Lee's application for enhanced costs, stating that: "I am satisfied that the Government Defendants were reasonably justified in seeking costs against Mr. Lee personally in relation to his application to add the 89 paragraphs to the lawsuit. Their application was not made in bad faith, and it was neither frivolous nor vexatious. That does not mean that the Government Defendants would have been successful in that regard. I need not determine that issue, which became moot when the Government Defendants withdrew their application. Here, it is not necessary for the Government Defendants to demonstrate that all of the 89 paragraphs were objectionable. It suffices that only one allegation impugning the integrity of a lawyer acting for the Government Defendants was without any reasonable foundation. Some of the allegations contained in the 89 paragraphs may have been properly advanced on the basis of the information before me. But the allegations of impropriety concerning identifiable government lawyers do not fit within that category." - See paragraphs 256 to 260.

Barristers and Solicitors - Topic 841

Duty to court - Liability for costs - General - The Crown sought costs against the plaintiffs' counsel (Lee) personally - Lee cross-applied for costs - The Crown withdrew its costs application - Lee sought costs on an enhanced basis for having to defend himself against the Crown's costs application - The Alberta Court of Queen's Bench stated that "[a]mendments to pleadings may in some circumstances require an evidentiary foundation to permit them to be added to an existing claim. Where the evidence necessary to support the claim is evidence attacking the honesty of lawyers, I do not think that an objectionable pleading is sanitized or made less objectionable by leaving out the names. That is a distinction without a difference: the impugned lawyer will in either situation be forced to defend his or her conduct. The ease of identification may go to the remedy ... Without some evidentiary foundation, it is difficult if not impossible to support a pleading. It is improper to invent facts to support a cause of action one wishes to plead, especially where the invented facts relate to serious misconduct. Mr. Asselin [Lee's counsel] quite appropriately referenced standard pleadings in motor vehicle accident cases where plaintiffs routinely allege, without any evidentiary basis, that the defendant driver was driving without due care and attention. I would add that such pleadings also frequently allege that the defendant driver was impaired by alcohol or drugs. However, common practice is not necessarily appropriate practice. It is also commonplace to 'shotgun plead': including all conceivable defendants and all conceivable causes of action to avoid failing to obtain a remedy because the wrong parties were sued, or a cause of action was missed. That practice is, however, questionable having regard to the foundational Rules of Court and indeed the barrister's oath that all Alberta barristers swear or affirm: 'I will not seek to destroy anyone's property. I will not promote suits upon frivolous pretenses.' Regardless of the propriety or ethics or practical realities, suing a party where there is no cause of action, or advancing a cause of action unsuccessfully against a party is something that is always remediable in costs." - See paragraphs 142 to 147.

Barristers and Solicitors - Topic 847

Duty to court - Liability for costs - Improper allegation in pleadings - [See fourth Barristers and Solicitors - Topic 841 ].

Crown - Topic 12

General principles - General - Crown policy - Effect on substantive rights - [See Crown - Topic 1701 ].

Crown - Topic 1701

Torts by and against Crown - Actions against Crown for breach of statutory duty - General - At issue on an interlocutory application, inter alia, was whether the Government had acted in a manner inconsistent with its policy that Child Welfare had a duty to consider suing for children harmed in government care - The Alberta Court of Queen's Bench stated that "... there is undoubtedly a difference between a legal duty (presumably imposed by statute or the common law) and a policy which imposes a duty on someone bound by that policy. It is not merely a semantic difference but also is one which may inform the enforceability of the duty and the nature of remedies available if the duty is breached. Breach of policy may not give rise to a cause of action. Indeed, it is not an absolute that breach of a statutory duty gives rise to a private law cause of action." - See paragraphs 187 and 188.

Practice - Topic 1308

Pleadings - General principles - Surplus or excessive pleading - Effect of - [See fourth Barristers and Solicitors - Topic 841 ].

Practice - Topic 3054

Applications and motions - General - Time for - The Alberta Court of Queen's Bench stated that "[t]here is nothing wrong with bringing a pre-emptive application so long as the application itself is not brought in bad faith, or is frivolous, vexatious or unreasonable." - See paragraph 52.

Practice - Topic 6981

Costs - Entitlement - General - The Alberta Court of Queen's Bench stated that "[t]he normal rule in civil litigation is that the party seeking a remedy has the burden of proving his or her entitlement to the remedy. There are few cases where there is a reverse onus such that a remedy is to be awarded unless the party against whom the remedy is sought proves otherwise. The Rules of Court are an exception to that, as in civil litigation, costs under the appropriate column normally follow the event. If a party wants to avoid costs despite being unsuccessful in the action, or the successful party wants to seek enhanced costs, that party will bear the onus of proving that there are appropriate circumstances for a deviation from the norm." - See paragraphs 75 and 76.

Practice - Topic 7110.1

Costs - Party and party costs - Special orders - Increase in scale of costs - Conduct of opposite party - [See second Barristers and Solicitors - Topic 841 ].

Practice - Topic 7110.1

Costs - Party and party costs - Special orders - Increase in scale of costs - Conduct of opposite party - The Alberta Court of Queen's Bench stated that "[s]eeking solicitor and client costs against a lawyer personally of necessity involves an allegation that the lawyer misconducted him or herself in the action. ... Where, as here, a lawyer seeks enhanced costs because allegations of unprofessional conduct, or misconducting him or herself in the course of litigation, or acting in bad faith have been made against the lawyer, he or she is required to prove that the allegations were frivolous or vexatious, unreasonable or in bad faith in order to receive costs." - See paragraphs 69 and 77.

Practice - Topic 7451

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - General - The Alberta Court of Queen's Bench stated that "[i]n Alberta, solicitor and client costs are generally awarded only where there has been misconduct by a party in the course of the litigation, where there are contractual provisions specifying the nature of costs, in public interest litigation, in some estate litigation and where there are unproven allegations of fraud or dishonesty. That is not intended to be an exhaustive list, but Jackson v Trimac [1993 Q.B.] demonstrates that solicitor and client costs are clearly the exception rather than the rule in Alberta." - See paragraph 70.

Cases Noticed:

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

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

Thomlinson et al. v. Alberta et al. (2003), 335 A.R. 85 (Q.B.), consd. [para. 12].

T.L. v. Director of Child Welfare (Alta.) (2008), 436 A.R. 217; 2008 ABQB 114, affd. (2009), 457 A.R. 141; 457 W.A.C. 141; 2009 ABCA 182, refd to. [para. 12].

M., E., J. and R. v. Alberta - see R. and J. v. W.A. et al.

M., E., J. and R. v. Alberta - see R. and J. et al. v. W.A. et al.

M., E., J. and R. v. Alberta - see R. v. W.

R. and J. v. W.A. et al. (2000), 282 A.R. 304 (Q.B.), refd to. [para. 12].

R. and J. et al. v. W.A. et al. (2000), 290 A.R. 380 (Q.B.), refd to. [para. 12].

R. and J. v. W.A. et al. (2001), 304 A.R. 78 (Q.B.), refd to. [para. 12].

R. v. W. (2006), 398 A.R. 358 (Q.B.), refd to. [para. 12].

R. v. W. (2006), 421 A.R. 327 (Q.B.), refd to. [para. 12].

B.K. v. Meunier et al. (2003), 345 A.R. 383; 2003 ABQB 539, consd. [para. 12].

V.B. et al. v. Alberta (Minister of Children's Services et al. (2004), 365 A.R. 179; 2004 ABQB 788, refd to. [para. 13].

T.L. v. Director of Child Welfare (Alta.) (2006), 395 A.R. 327; 2006 ABQB 104, refd to. [para. 13].

T.W. et al. v. Alberta et al. (2010), 497 A.R. 130 (Q.B.), refd to. [para. 13].

D. v. Alberta - see D. v. Phillips et al.

D. v. Phillips et al. (2003), 350 A.R. 24 (Q.B.), refd to. [para. 13].

D. v. Phillips et al., [2004] A.R. Uned. 420 (Q.B.), refd to. [para. 13].

K. v. Alberta - see K. v. E.K. et al.

K. v. E.K. et al. (2003), 347 A.R. 255 (Q.B.), refd to. [para. 13].

K. v. E.K. et al. (2004), 362 A.R. 195 (Q.B.), refd to. [para. 13].

K. v. E.K. et al. (2004), 373 A.R. 69 (Q.B.), refd to. [para. 13].

Recovery Production Equipment Ltd. v. McKinney Machine Co. (1998), 223 A.R. 24; 183 W.A.C. 24; 1998 ABCA 239, refd to. [para. 22].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 22].

Robertson v. Edmonton Chief of Police et al. (2005), 385 A.R. 325; 2005 ABQB 499, refd to. [para. 22].

Canadian Natural Resources Ltd. v. ShawCor Ltd. et al. (2014), 580 A.R. 265; 620 W.A.C. 265; 376 D.L.R.(4th) 289; 2014 ABCA 289, refd to. [para. 34].

Adams v. Adams, [2011] A.R. Uned. 838 (Q.B.), refd to. [para. 34].

P.L. v. Alberta et al. (2012), 529 A.R. 21; 2012 ABQB 309, refd to. [para. 34].

College of Physicians and Surgeons (Alta.) v. J.H. et al. (2009), 468 A.R. 101; 2009 ABQB 48, refd to. [para. 34].

H.Z. v. Unger et al., [2013] A.R. Uned. 670; 2013 ABQB 638, refd to. [para. 34].

J.O. et al. v. Alberta et al. (2012), 550 A.R. 51; 2012 ABQB 599, refd to. [para. 34].

Patel v. Patel, [2011] A.R. Uned. 733; 2011 ABQB 662, refd to. [para. 34].

Koppe v. Garneau Lofts Inc. (2005), 385 A.R. 265; 2005 ABQB 727, refd to. [para. 34].

Jackson and Parkview Holdings Ltd. v. Trimac Industries Ltd. et al. (1993), 138 A.R. 161; 8 Alta. L.R.(3d) 403 (Q.B.), refd to. [para. 34].

Enoch Cree Nation et al. v. Prue et al. (2014), 591 A.R. 87; 2014 ABQB 445, refd to. [para. 34].

Evans v. Sports Corp. (2011), 523 A.R. 88; 2011 ABQB 616, refd to. [para. 34].

Strategy Summit Ltd. v. Remington Development Corp. (2012), 528 A.R. 273; 2012 ABQB 61, refd to. [para. 34].

Schwartz Estate v. Kwinter et al. (2013), 558 A.R. 236; 2013 ABQB 147, refd to. [para. 34].

Schreiber v. Mulroney, [2007] O.T.C. Uned. G69; 2007 CanLII 31754 (Sup. Ct.), refd to. [para. 249].

Authors and Works Noticed:

McKenzie, Gavin, The Ethics of Advocacy, The Advocates' Society J. (September 2008), generally [para. 250].

Counsel:

Ward K. Branch, Peter Barber, G. Alan Meikle, Q.C., and Monica Johnson, for the Government defendants;

Pierre Asselin, for Robert Lee.

This costs matter was heard on December 1, 2014, by Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on February 4, 2015.