Polsom v. Couston et al.,

• Judge: Hanebury
• Neutral Citation: 2014 ABQB 43
• Subject Matter: TORTS,BARRISTERS AND SOLICITORS,CROWN,PRACTICE
• Citation: 2014 ABQB 43,(2014), 581 A.R. 342 (QBM),581 AR 342,(2014), 581 AR 342 (QBM),581 A.R. 342
• Date: 17 October 2013
• Court: Court of Queen's Bench of Alberta (Canada)

Polsom v. Couston (2014), 581 A.R. 342 (QBM)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. FE.090

Danielle Polsom (plaintiff) v. Kenneth Terrence Couston and Achilles Grobler (defendants)

(1301 06134; 2014 ABQB 43)

Indexed As: Polsom v. Couston et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Hanebury, Master

January 21, 2014.

Summary:

Polsom alleged that she was molested by her stepfather. The stepfather was eventually criminally charged, but the charges were stayed as a result of the delay in bringing the matter to trial. The delay was caused by the Crown prosecutor's failure to provide disclosure to the stepfather. Polsom sued the Crown prosecutor for the tort of misfeasance in public office. The Attorney General applied to have the claim struck on the basis that it disclosed no cause of action.

A Master of the Alberta Court of Queen's Bench struck the pleadings, subject to an application to amend.

Barristers and Solicitors - Topic 1808

The prosecutor - Duty of disclosure - [See third Crown - Topic 5145 ].

Crown - Topic 5145

Officials and employees - Liability of officials in tort - Misfeasance - A Master of the Alberta Court of Queen's Bench reviewed the tort of misfeasance in public office - See paragraphs 7 to 17.

Crown - Topic 5145

Officials and employees - Liability of officials in tort - Misfeasance - Polsom alleged that she was molested by her stepfather - The stepfather was eventually criminally charged, but the charges were stayed as a result of the delay in bringing the matter to trial - The delay was caused by the failure of the Crown prosecutor (Grobler) to provide disclosure to the stepfather - Polsom sued Grobler for the tort of misfeasance in public office - The Attorney General applied to have the claim struck on the basis that it disclosed no cause of action - The first element of the tort that the claim had to allege was an unlawful act by a public officer - Polsom alleged that Grobler's actions contravened the provisions of the Victims of Crime Act - A Master of the Alberta Court of Queen's Bench held that this Act could not found a claim against Grobler for misfeasance in public office - The court stated "Assuming, without deciding, that this Act applied to Ms. Polsom and created an obligation on Mr. Grobler in relation to her, which obligation he failed to honour, s. 18 of the Act is, in my view, definitive. It provides that 'subject to [certain irrelevant sections] no cause of action, right of appeal, claim for damages or other remedy in law exists because of this Act or anything done or omitted to be done under this Act'" - See paragraphs 23 to 26.

Crown - Topic 5145

Officials and employees - Liability of officials in tort - Misfeasance - Polsom alleged that she was molested by her stepfather - The stepfather was eventually criminally charged, but the charges were stayed as a result of the delay in bringing the matter to trial - The delay was caused by the failure of the Crown prosecutor (Grobler) to provide disclosure to the stepfather - Polsom sued Grobler for the tort of misfeasance in public office - The Attorney General applied to have the claim struck on the basis that it disclosed no cause of action - The first element of the tort that the claim had to allege was an unlawful act by a public officer - Polsom sought to base her claim on the professional obligations of a prosecutor - A Master of the Alberta Court of Queen's Bench held that Polsom's allegations met the requirement for an unlawful act necessary to found a claim of misfeasance in public office - Grobler breached his legal duty when he failed to fully disclose the Crown's evidence to the defence and failed to bring the accused to trial in a timely fashion - These were not matters of prosecutorial discretion - They were requirements fundamental to the prosecution of an accused under the criminal law of Canada - See paragraphs 27 to 32.

Crown - Topic 5145

Officials and employees - Liability of officials in tort - Misfeasance - Polsom alleged that she was molested by her stepfather - The stepfather was eventually criminally charged, but the charges were stayed as a result of the delay in bringing the matter to trial - The delay was caused by the failure of the Crown prosecutor (Grobler) to provide disclosure to the stepfather - Polsom sued Grobler for the tort of misfeasance in public office - The Attorney General applied to have the claim struck on the basis that it disclosed no cause of action - A Master of the Alberta Court of Queen's Bench held that the pleadings were insufficient to support the claim - While the claim in this case contained the required allegations (that Grobler committed an unlawful act, knew his conduct was unlawful or was reckless as to whether it was unlawful, and knew it was likely to injure Polsom or was reckless as to the likelihood of injury), the story supporting those allegations was not coherent - The claim alleged that a publication ban was sought by the Crown despite Polsom's desire to the contrary, that she was told not to come to the hearing where the charges were stayed, and that she was told that the delays were her fault - These facts were insufficient to support the allegations of Grobler's knowledge of an illegal act, and his intention to harm Polsom - The court struck the pleadings, subject to an application to amend - See paragraphs 33 to 47.

Practice - Topic 1989

Pleadings - Particulars - Particulars of particular matters - Misfeasance in or abuse of public office - [See second, third and fourth Crown - Topic 5145 ].

Practice - Topic 2213

Pleadings - Striking out pleadings - With leave to amend - Polsom alleged that she was molested by her stepfather - The stepfather was eventually criminally charged, but the charges were stayed as a result of the delay in bringing the matter to trial - The delay was caused by the failure of the Crown prosecutor (Grobler) to provide disclosure to the stepfather - Polsom sued Grobler for the tort of misfeasance in public office - The Attorney General successfully applied to have the claim struck on the basis that it disclosed no cause of action - It argued that the claim was incapable of amendment for various public policy reasons - For instance, it submitted that the necessary proximity to establish liability did not exist between Polsom and Grobler - A Master of the Alberta Court of Queen's Bench granted leave to Polsom to amend her claim, stating "The challenge in this case is whether a victim can use a duty to an accused to found a claim of misfeasance in public office. This claim appears to be novel. In my view the case law favours allowing novel claims to proceed." - In addition, the court noted that shielding a prosecutor from accountability on the basis of public policy could discourage other sexual abuse victims from ever disclosing the details of their abuse to a legal system that they might view as unjustly protective of public servants - See paragraphs 48 to 56.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See fourth Crown - Topic 5145 ].

Torts - Topic 9162

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Misfeasance in or abuse of public office - [See first, second and third Crown - Topic 5145 ].

Cases Noticed:

Elder Advocates of Alberta Society et al. v. Alberta et al. (2011), 416 N.R. 198; 499 A.R. 345; 514 W.A.C. 345; 2011 SCC 24, refd to. [para. 3].

Odhavji Estate et al. v. Woodhouse et al. (2003), 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 3].

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; 2011 SCC 42, refd to. [para. 3].

Donaldson v. Farrell et al., [2011] A.R. Uned. 51; 2011 ABQB 11, refd to. [para. 3].

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

Tottrup v. Lund et al. (2000), 255 A.R. 204; 220 W.A.C. 204; 2000 CarswellAlta 365 (C.A.), refd to. [para. 3].

Edmonton Region Community Board for Persons with Developmental Disabilities v. Pearl Villa Homes Ltd. et al., [2010] A.R. Uned. 973; 2010 ABQB 786, refd to. [para. 4].

Shell v. Barnsley et al. (2006), 208 Man.R.(2d) 264; 383 W.A.C. 264; 2006 MBCA 133, refd to. [para. 4].

United Petroleum Distributors (Calgary) Ltd. v. 548311 Alberta Ltd. et al. (1998), 216 A.R. 116; 175 W.A.C. 116; 1998 ABCA 121, refd to. [para. 4].

Lameman et al. v. Alberta et al. (2013), 553 A.R. 44; 583 W.A.C. 44; 2013 ABCA 148, refd to. [para. 4].

Anderson v. Airsprint Inc. et al. (2005), 380 A.R. 298; 363 W.A.C. 298; 2005 ABCA 332, refd to. [para. 4].

Jordan v. Alberta Law Enforcement Response Teams Ltd. et al. (2013), 563 A.R. 319; 2013 ABQB 330, refd to. [para. 11].

Entreprises Sibeca Inc. v. Frelighsburg (Municipalité), [2004] 3 S.C.R. 304; 325 N.R. 345; 2004 SCC 61, refd to. [para. 11].

O'Dwyer v. Ontario Racing Commission (2008), 238 O.A.C. 364; 2008 ONCA 446, refd to. [para. 13].

Three Rivers District Council and Others v. Governor and Company of The Bank of England, [2000] UKHL 33, refd to. [para. 13].

McMaster v. Canada (2009), 352 F.T.R. 255; 2009 FC 937, refd to. [para. 13].

Finney v. Barreau du Québec - see McCullock-Finney v. Barreau du Québec.

McCullock-Finney v. Barreau du Québec, [2004] 2 S.C.R. 17; 321 N.R. 361; 2004 SCC 36, refd to. [para. 13].

Lockyer-Kash v. Workers' Compensation Board (B.C.) (2013), 344 B.C.A.C. 273; 587 W.A.C. 273; 2013 BCCA 459, refd to. [para. 15].

Good v. Toronto Police Services Board et al., [2013] O.T.C. Uned. 3026; 2013 ONSC 3026, refd to. [para. 16].

R. v. Tkachuk (E.A.) (2001), 293 A.R. 171; 257 W.A.C. 171; 2001 ABCA 243, refd to. [para. 26].

Krieger et al. v. Law Society of Alberta (2002), 293 N.R. 201; 312 A.R. 275; 281 W.A.C. 275; 2002 SCC 65, refd to. [para. 28].

Collins v. Canada (2011), 418 N.R. 23; 2011 FCA 140, refd to. [para. 28].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 29].

R. v. Askov, Hussey, Melo and Gugliotta, [1990] 2 S.C.R. 1199; 113 N.R. 241; 42 O.A.C. 81, refd to. [para. 29].

Merchant Law Group et al. v. Canada Revenue Agency et al. (2010), 405 N.R. 160; 2010 FCA 184, refd to. [para. 37].

Adventure Tours Inc. v. St. John's Port Authority (2011), 420 N.R. 149; 2011 FCA 198, 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. 39].

G.H. v. Alcock et al., [2013] A.R. Uned. 38; 2013 ABCA 24, refd to. [para. 40].

J.O. et al. v. Alberta et al., [2013] A.R. TBEd. DE.024; 2013 ABQB 693, refd to. [para. 41].

Alberta v. Nilsson (2002), 320 A.R. 88; 288 W.A.C. 88; 2002 ABCA 283, refd to. [para. 44].

R. v. Cooper, [1978] 1 S.C.R. 860; 14 N.R. 181, refd to. [para. 44].

Boucher v. R., [1955] S.C.R. 16, refd to. [para. 50].

Proulx v. Québec (Procureur général) (2001), 276 N.R. 201; 2001 SCC 66, refd to. [para. 50].

German v. Major (1985), 62 A.R. 2; 1985 ABCA 176, refd to. [para. 50].

Syl Apps Secure Treatment Centre v. B.D. - see B.D. et al. v. Children's Aid Society of Halton Region et al.

B.D. et al. v. Children's Aid Society of Halton Region et al. (2007), 365 N.R. 302; 227 O.A.C. 161; 2007 SCC 38, refd to. [para. 50].

Plas-Tex Canada Ltd. et al. v. Dow Chemical of Canada Ltd. et al. (1995), 178 A.R. 116; 110 W.A.C. 116 (C.A.), refd to. [para. 52].

Nelles v. Ontario et al. (1989), 98 N.R. 321 (S.C.C.), refd to. [para. 53].

Statutes Noticed:

Victims of Crime Act, R.S.A. 2000, c. V-3, sect. 18 [para. 25].

Authors and Works Noticed:

Bodner, Michael, The Odhavji Decision: Old Ghosts and New Confusion in Canadian Courts (2005), 42 Alta. L. Rev. 1061, para. 68 [para. 5].

Wruck, H., The Continuing Evolution of the Tort of Misfeasance in Public Office (2008), 41 U.B.C.L. Rev. 69, paras. 15 [para. 16]; 76, 77 [para. 13]; 83 [para. 11].

Counsel:

Kate Bridgett (Alberta Justice), for the defendant, Achilles Grobler;

Rinus de Waal and Luke Rasmussen (De Waal Law LLP), for the plaintiff, Danielle Polsom.

This application was heard in chambers on October 17, 2013, before Hanebury, Master, of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following reasons for judgment on January 21, 2014.