P.L. v. Alberta et al., (2011) 529 A.R. 1 (QB)

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 08, 2011
• Citations: (2011), 529 A.R. 1 (QB);2011 ABQB 771

P.L. v. Alta. (2011), 529 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2011] A.R. TBEd. DE.090

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

(1003 09557; 2011 ABQB 771)

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

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

December 7, 2011.

Summary:

P.L. sued the Crown, T.S., M. and John Doe. She claimed that while under a temporary guardianship order (TGO), she was sexually assaulted by T.S., the boyfriend of M., the foster parent with whom P.L. had been placed. The Crown defended the claims. P.L. sought summary judgment of her claim against the Crown as it related to trespass and unlawful confinement, relying on the expiry of the TGO because of the Director's failure to file a service plan as required under s. 29(3) of the Child Welfare Act. Damages were not being sought as part of the summary judgment application. The Crown applied to declare the summary judgment application a nullity because the application was in essence a severance application. The Crown also argued that the application was premature in any event because P.L.'s pleadings were not yet in order.

The Alberta Court of Queen's Bench concluded that there was no bar to P.L. proceeding with the summary judgment application.

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.

Practice - Topic 6

General principles and definitions - Application of practice rules - [See both Practice - Topic 5702 ].

Practice - Topic 5204

Trials - General - Severance of issues or parties - General - [See second Practice - Topic 5702 ].

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - P.L. sought summary judgment of her claim against the Crown as it related to trespass and unlawful confinement - The Crown argued that P.L.'s summary judgment application was premature because her pleadings required amendment to conform with Court of Appeal and Queen's Bench decisions in similar cases - The Alberta Court of Queen's Bench held that the incomplete state of pleadings was not a bar to the application for summary judgment - "Under the old Rules, summary judgment could only be brought by the plaintiff after the filing of a statement of defence. The Rule 7.2 contains no such requirement. A summary judgment application may be brought anytime after the action has been commenced. In any event, a defence has been filed by the Crown ... . P.L. is not in default of any orders or directions to amend her statement of claim, and she is not seeking summary judgment on any of the claims that require amendment... . Here, the pleadings are not alleged to be irregular or not in compliance with relevant court decisions as they relate to the trespass and unlawful confinement causes of action. There are no outstanding motions ... . R. 7.3(1) contemplates a summary judgment application 'in respect of all or part of a claim', so it is not a bar to the application that the application will not fully resolve the action, or that other parts of the claim or action will continue. 7.3(1)(c) expressly contemplates that quantification of the claim might still remain after summary judgment has been given on liability for the claim." - See paragraphs 48 to 51.

Practice - Topic 5702

Judgments and orders - Summary judgments - Jurisdiction or when available or when appropriate - P.L. sued the Crown, T.S., M. and John Doe - She claimed that while under a temporary guardianship order (TGO), she was sexually assaulted by T.S., the boyfriend of M., the foster parent with whom P.L. had been placed - The Crown defended the claims - P.L. sought summary judgment of her claim against the Crown as it related to trespass and unlawful confinement, relying on the expiry of the TGO because of the Director's failure to file a service plan as required under s. 29(3) of the Child Welfare Act - Damages were not being sought as part of the summary judgment application - The Crown applied to declare the summary judgment application a nullity because the application was in essence a severance application - The Alberta Court of Queen's Bench held that there was no bar to P.L. proceeding with the summary judgment application - The fact that severance might have been sought did not answer the question - "Severance contemplates an order for an issue to be heard or tried 'disposing of all or part of a claim' (R. 7.1(1)(a)(i)). This wording is substantially the same as R. 7.3(1)(c). ... [T]hese rules must be read together, as offering the parties choices of a course of action. If a party believes that resolution of one issue amongst many might 'dispose of all or part of a claim, substantially shorten the trial, or save expense', but the party still requires record production, questioning, expert report production and a trial, severance may be the appropriate route to follow. If the party believes that an issue can be determined in a summary way (i.e. without trial), because there have been admissions of fact or the only evidence necessary is in the form of authentic records, summary judgment may be the appropriate route to follow. The foundational rules emphasize the objectives of fairness, justice, efficiency, economy and proportionality. ... [T]he cases on severance which have been decided since the new rules came into effect ... appear to be lessening the barriers to severance which existed under the old rules." - See paragraphs 52 to 61.

Cases Noticed:

Esso Resources Canada Ltd. et al. v. Stearns Catalytic Ltd. et al. (1991), 114 A.R. 27; 1991 CarswellAlta 31 (C.A.), refd to. [para. 41].

American Home Assurance Co. et al. v. Canadian Pacific Railway Co., [2003] A.R. Uned. 215; 2003 ABQB 324, refd to. [para. 41].

Fattah et al. v. Doe et al., [2005] A.R. Uned. 669; 2005 ABQB 604, refd to. [para. 41].

Weatherford Canada Partnership v. Addie et al. (2009), 484 A.R. 247; 2009 ABQB 538, refd to. [para. 41].

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. 41].

Envision Edmonton Opportunities Society et al. v. Edmonton (City) (2011), 507 A.R. 275; 2011 ABQB 29, refd to. [para. 42].

Hunka et al. v. Degner et al., [2011] A.R. Uned. 72; 2011 ABQB 195, refd to. [para. 42].

Nowicki v. Price et al. (2011), 516 A.R. 105; 2011 ABQB 133, refd to. [para. 42].

Ponich Estate, Re (2011), 511 A.R. 190; 2011 ABQB 33, refd to. [para. 42].

C.H.S. et al. v. Director of Child Welfare (Alta.) (2008), 452 A.R. 66; 2008 ABQB 513, refd to. [para. 43].

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. 43].

L.C. et al. v. Alberta et al. (2010), 469 A.R. 375; 470 W.A.C. 375; 2010 ABCA 14, refd to. [para. 43].

T.L. v. Director of Child Welfare (Alta.) (2006), 395 A.R. 327; 2006 ABQB 104, refd to. [para. 43].

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. 43].

Elbow River Marketing Limited Partnership v. Canada Clean Fuels Inc. et al. (2011), 513 A.R. 315; 530 W.A.C. 315; 2011 ABCA 258, refd to. [para. 45].

B.F. v. Board of Education of Saskatchewan Rivers School Division No. 119 et al. (2000), 199 Sask.R. 192; 232 W.A.C. 192; 2000 SKCA 117, refd to. [para. 52].

Statutes Noticed:

Rules of Court (Alta.) (2010), rule 1.2 [para. 38]; rule 7.1 [para. 33]; rule 7.2, rule 7.3, rule 7.4 [para. 32].

Authors and Works Noticed:

Stevenson, William A., and Côté, Jean E., Alberta Civil Procedure Handbook (2009), p. 291 [para. 39].

Stevenson, William A., and Côté, Jean E., Alberta Civil Procedure Handbook (2011), p. 7-5 [para. 66].

Counsel:

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

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

This application was heard on November 8, 2011, before Graesser, J., of the Alberta Court of Queen's Bench, who delivered the following memorandum of decision, dated at Edmonton, Alberta, on December 7, 2011.