P.L. v. Alberta et al., (2012) 529 A.R. 21 (QB)

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 10, 2012
• Citations: (2012), 529 A.R. 21 (QB);2012 ABQB 309

P.L. v. Alta. (2012), 529 A.R. 21 (QB)

MLB headnote and full text

Temp. Cite: [2012] A.R. TBEd. JN.052

P.L. (plaintiff) v. Her Majesty the Queen in Right of Alberta, T.S., M., The Public Trustee of Alberta and John Doe (defendants)

(1003 09557; 2012 ABQB 309)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

May 10, 2012.

Summary:

P.L. sued the Crown, T.S., M. and John Doe. She claimed that while under a temporary guardianship order, she was sexually assaulted by T.S., the boyfriend of M., the foster parent with whom P.L. had been placed. She claimed damages against M. and T.S. She also claimed damages against the Crown, on various theories: systemic negligence; misfeasance in public office; misrepresentation and fraud; breach of fiduciary duty; Charter claims; International Conventions; failing to protect legal interest; and vicarious liability. The Crown applied for an order striking out various portions of the statement of claim. P.L. applied for particulars and production of a further and better affidavit of records; leave to use discovery materials from other actions involving the Crown; leave to amend her statement of claim; and an order lifting the stay of her claim against the Public Trustee.

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

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.

Crown - Topic 1785

Torts by and against Crown - Practice - Pleadings - [See Practice - Topic 2230 ].

Practice - Topic 1308

Pleadings - General principles - Surplus or excessive pleading - Effect of - This was an application for an order striking out various portions of the statement of claim - The Alberta Court of Queen's Bench commented that the application "brings several dynamics into play. Firstly, there is the tension between brevity in pleadings and the need to clearly ensure that all causes of action the plaintiff wishes to advance are fully plead with sufficient clarity so that they are identifiable to the defendant. Secondly, there is the gray area between pleading facts and pleading evidence. Further, there is the gray area between alleging a cause of action and pleading sufficient facts to support it without pleading law. ... There is a somewhat fine balance between what is too much to amount to prolixity, and what is too little to leave the plaintiff vulnerable to an application to strike ... Over-pleading results in expanded scope for relevance and materiality attracting broader record and oral discovery. That expansion is contrary to the spirit of the new Rules of Court, with the foundational rules exhorting the parties to get to the real issues between them efficiently, quickly and economically" - See paragraphs 9 to 11.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - The plaintiff alleged that she was sexually assaulted while she was in foster care - She claimed damages against the Province of Alberta, on various theories: systemic negligence; misfeasance in public office; misrepresentation and fraud; breach of fiduciary duty; Charter claims; International Conventions; failing to protect legal interest; and vicarious liability - The Province applied to strike various portions of the statement of claim not disclosing a cause of action - The Alberta Court of Queen's Bench stated that "Rule 3.68 permits a party to seek to strike a pleading or part of a pleading on the basis that it does not plead a valid cause of action. Yet the law is not static ... A narrow view would be to strike a claim that discloses no existing cause of action. A broader view would be to allow currently unrecognized causes of action which might be found to be valid (such as ones the law may be heading towards recognizing) to proceed. That presumably would give broad latitude to a judge to allow a novel case to proceed. How that is reconcilable with the foundational rules is unclear, and new ground to be litigated itself. ... Some of the answer to this last element is the discretion a judge has under R. 3.68 to refuse to strike if the action is not bound to fail, or is not hopeless. That may depend on the judge's views not only as to the direction the law is taking, but the correctness of that direction" - See paragraphs 15 and 16.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - The plaintiff alleged that she was sexually assaulted while she was in foster care - She claimed damages against the Province, on various theories - She applied for leave to use discovery materials from other actions involving the Province to avoid application of the implied undertaking of confidentiality rules - The Alberta Court of Queen's Bench commented that "With respect to the application or relaxation of the implied undertaking of confidentiality (Rule 5.33), the dynamics there are between the search for truth and protection of privacy rights. The use of records produced in other litigation, or transcripts of questioning done in other proceedings, are generally for credibility and cross-examination purposes ... Nevertheless, record production and information obtained through questioning in other litigation is evidence produced under compulsion of law and is an intrusion into a party's right to privacy. How far that right goes in the face of the competing interest of the search for truth is a difficult dynamic and is essentially a discretionary call for a chambers judge. A further element is the extent to which counsel involved in multiple proceedings is affected by the implied undertaking" - See paragraphs 12 to 14.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - The plaintiff alleged that she was sexually assaulted while she was in foster care - She claimed damages against the Province, on various theories - The plaintiff applied to lift the implied undertaking with respect to records and information given in questioning in other child welfare-related lawsuits against the Province - The Alberta Court of Queen's Bench stated that rule 5.33 of the Rules of Court "essentially codifies the common law implied undertaking of confidentiality with respect to such information" - See paragraphs 104 and 105 - "As Rule 5.33 is a codification of the common law as it existed in Alberta at the time the new Rules of Court came into force (November 1, 2010) and the rule has no significant differences from the common law, the prior case law on the implied undertaking is relevant to the new Rule" - See paragraph 116.

Practice - Topic 4157

Discovery - General principles - Collateral use of discovery information (implied or deemed undertaking rule) - On an application to lift the implied undertaking rule, the Alberta Court of Queen's Bench concluded from the case law that: "1. The party seeking to lift it bears the burden to demonstrate through cogent and persuasive reasons that the relief should be granted; 2. The information sought to be used must be relevant and material to the application or action in which it is sought to be used (in other words this should not be a fishing expedition); and 3. To grant the relief sought, the court must conclude that the public interest in seeing justice done in the particular case outweighs the privacy interest of the litigants involved in the other litigation and the integrity of the discovery process. Considerations in determining whether the implied undertaking should be lifted include the presence of fraud or criminal wrongdoing, whether the information could have been obtained from other sources, whether third parties are involved, and whether the new proceedings are connected with the proceedings in which disclosure was made, in the sense that they involve the same or similar parties, the same or similar issues, and arise out of the same series of events" - See paragraphs 117 and 118.

Cases Noticed:

Donaldson v. Farrell et al., [2011] A.R. Uned. 51; 2011 ABQB 11, refd to. [para. 21].

Tottrup v. Lund et al. (2000), 255 A.R. 204; 220 W.A.C. 204; 2000 CarswellAlta 365 (C.A.), refd to. [para. 22].

Tottrup v. Alberta (Minister of Environment) - see Tottrup v. Lund et al.

British Columbia v. Imperial Tobacco Canada Ltd. et al. (2011), 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 355 D.L.R.(4th) 513; 2011 SCC 42, refd to. [para. 22].

Lax Kw'alaams Indian Band et al. v. Canada (Attorney General) et al. (2011), 423 N.R. 3; 313 B.C.A.C. 3; 533 W.A.C. 3; 2011 SCC 56, refd to. [para. 23].

A.J.G. v. Alberta et al. (2006), 402 A.R. 340; 2006 ABQB 446, refd to. [para. 24].

C.H.S. et al. v. Director of Child Welfare (Alta.), [2006] A.R. Uned. 316; 2006 ABQB 241, refd to. [para. 24].

C.H.S. et al. v. Director of Child Welfare (Alta.) (2008), 452 A.R. 66; 2008 ABQB 513, refd to. [para. 24].

Rumley et al. v. British Columbia (2001), 275 N.R. 342; 157 B.C.A.C. 1; 256 W.A.C. 1; 2001 SCC 69, refd to. [para. 26].

D. v. Phillips, [2004] A.R. Uned. 420; 2004 ABQB 380, refd to. [para. 26].

Mr. D. v. Phillips - see D. v. Phillips.

K. v. E.K. et al. (2004), 362 A.R. 195; 2004 ABQB 159, refd to. [para. 27].

K.L.B. et al. v. British Columbia et al. (2003), 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 2003 SCC 51, refd to. [para. 27].

T.L. v. Director of Child Welfare (Alta.) (2006), 395 A.R. 327; 2006 ABQB 104, refd to. [para. 29].

A.L. et al. v. Ontario (Minister of Community and Social Services) (2006), 218 O.A.C. 150; 2006 CarswellOnt 7393 (C.A.), refd to. [para. 30].

Odhavji Estate et al. v. Woodhouse et al. (2009), 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 32].

C.H.S. et al. v. Director of Child Welfare (Alta.) (2010), 469 A.R. 359; 470 W.A.C. 359; 2010 ABCA 15, refd to. [para. 35].

R. and J. v. W.A. et al. (2000), 282 A.R. 304; 2000 ABQB 974, refd to. [para. 37].

L.C. et al. v. Alberta et al. (2010), 469 A.R. 375; 470 W.A.C. 375; 2010 ABCA 14, refd to. [para. 40].

Broome et al. v. Prince Edward Island (2009), 282 Nfld. & P.E.I.R. 61; 868 A.P.R. 61; 2009 PECA 1, refd to. [para. 84].

Reference under S-s.18(1) of the Supreme Court Act - see Broome et al. v. Prince Edward Island.

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. 89].

Wirth Ltd. v. Acadia Pipe & Supply Corp. et al. (1991), 113 A.R. 298; 1991 CanLII 5837 (Q.B.), refd to. [para. 105].

Cheyne v. Alberta, 2003 ABQB 244, refd to. [para. 106].

Schreiber v. Canada (Attorney General) et al. (2000), 269 A.R. 97; 2000 ABQB 536, refd to. [para. 110].

Jutte et al. v. Jutte et al. (2007), 415 A.R. 329; 2007 ABQB 191, refd to. [para. 114].

T.W. et al. v. Alberta et al. (2010), 497 A.R. 130 (Q.B.), refd to. [para. 119].

Hall v. Willcox et al. (2011), 511 A.R. 139; 2011 ABQB 78, refd to. [para. 120].

Balm v. 3512061 Canada Ltd. et al. (2003), 327 A.R. 149; 296 W.A.C. 149; 2003 ABCA 98, refd to. [para. 141].

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. 145].

T.L. et al. v. Director of Child Welfare (Alta.) et al. (2010), 495 A.R. 304; 2010 ABQB 262, refd to. [para. 149].

Statutes Noticed:

Rules of Court (Alta.) (2010), rule 3.68 [para. 19]; rule 5.33 [para. 12]; rule 13.6, rule 13.7 [para. 20].

Counsel:

Robert P. Lee (Strathcona Law), for the plaintiff;

Ward Branch, G. Alan Meikle, Q.C., Peter Barber and Kate Bridgett (Alberta Justice), for the defendants.

These applications were heard on March 5 and 9, 2012, before Graesser, J., of the Alberta Court of Queen's Bench, who delivered the following judgment, with reasons, dated at Edmonton, Alberta, on May 10, 2012.