S.M. et al. v. Alberta et al., (2014) 591 A.R. 1 (QB)

• Judge: Graesser, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: April 14, 2014
• Citations: (2014), 591 A.R. 1 (QB);2014 ABQB 376

S.M. v. Alta. (2014), 591 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JL.008

SM, SM as Litigation Representative for the Estate of CM (plaintiffs) v. Her Majesty the Queen in Right of Alberta and Edmonton and Area Child & Family Services, Region 6, Joseph (Archie) Arcand, J.D. (Dick) Frey, Donna Mah, Sharon Long, Heather Forsyth, Maria David-Evans, Laura Alcock, Raymond Douglas Loyer, Rachel Donovan and John Doe (defendants)

(0703 15159; 2014 ABQB 376)

Indexed As: S.M. et al. v. Alberta et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Graesser, J.

June 17, 2014.

Summary:

A child (CM) was apprehended in October 2005 and placed with the defendant foster parents (Loyer and Donovan). In November 2005, CM was assaulted by Donovan and died. In November 2007, the mother (SM) brought an action for damages for negligence and breach of fiduciary duty against the defendants, including various officials of Child and Family Services (CFS), the Minister responsible for CFS and the foster parents. CFS was involved in CM's life since she was 13 years of age. The action was brought on SM's own behalf and on behalf of CM's estate. The action alleged that the Crown owed various duties of care to SM and CM and was vicariously liable for the negligence of the foster parents. Particularly, SM alleged that the Crown inadequately investigated her family circumstances, failed to conduct proper planning for her and her family, failed to prepare, file or serve an adequate service plan for her when she was a minor, failed to provide her with appropriate residency, services and treatment, and failed to protect her legal rights. The claim also alleged that the Crown failed to give her any information concerning her and CM's legal rights. Instead of supporting her with the help that the Crown knew that she needed, the Crown apprehended her children, including CM. The Crown was also alleged to be negligent in placing CM with the foster parents. The government defendants applied to strike all or significant portions of the amended statement of claim as failing to disclose causes of action. SM conceded the need to amend various portions of the amended statement of claim.

The Alberta Court of Queen's Bench allowed the application in part. Particularly, the court ruled as follows: (1) the claim against Edmonton and Area Child & Family Services, Region 6, was struck, because, assuming it was ever an entity capable of being sued, it was no longer in existence and the Crown assumed its liabilities and obligations; (2) any claims against the individual Crown defendants were struck, as no facts were pleaded giving rise to a cause of action against them; (3) the pleadings did not disclose a valid claim by CM's estate, which was limited to claims under the Survival of Actions Act for financial losses, which was not pleaded; (4) only CM had a maintainable claim against the Crown, as family members of an apprehended child were owed no duty of care in child welfare proceedings; (5) generalized systemic negligence allegations were struck, as they were relevant only where there were allegations of harm to a specific plaintiff; (6) amendments were necessary if claims for breach of fiduciary duties were to be pursued; (7) amendments were needed to plead facts as to what Charter duties and principles of fundamental justice were breached, how they were breached, by whom, and what harm resulted; (8) clearer facts were required to describe the relationship between SM and the Crown when she was a child and the circumstances of CM's involvement with the Crown; (9) insufficient facts were pleaded to support SM's claim for trespass against her as a child; (10) allegations which were embarrassing, irrelevant, legal conclusions and argument were struck; and (11) the claim of vicarious liability should not be struck.

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 a publication ban under s. 126.2 of the Child, Youth and Family Enhancement Act and Maritime Law Book's editorial policy.

Civil Rights - Topic 8589

Canadian Charter of Rights and Freedoms - Practice - Pleadings - A child (CM) was apprehended in October 2005 and placed with the defendant foster parents (Loyer and Donovan) - In November 2005, CM was assaulted by Donovan and died - The mother (SM) brought an action for damages for negligence and breach of fiduciary duty against the government defendants, and a claim for breach of her and CM's Charter rights - The Alberta Court of Queen's Bench held that "CM had no surviving Charter claims, and his estate cannot advance any" - The court stated that "I do not see SM's s. 7 Charter claim in this case (if and when properly pled) as being totally hopeless. It should be allowed to proceed." - The court set out potential Charter rights claims under ss. 7 and 9 of the Charter for children, under s. 7 for parents, and potential claims for breach of the principles of fundamental justice - However, the court stated that the statement of claim must identify how the rights were violated - See paragraphs 87 to 104.

Guardian and Ward - Topic 815.4

Public trustee or guardian - Appointment - Child in need of protection - Duties of agency - [See Torts - Topic 9159 ].

Practice - Topic 864

Parties - Striking out parties - Party not necessary and proper - An apprehended child died due to injuries inflicted by the foster parents with whom the child was placed - The mother brought an action for damages, on her own behalf and on behalf of the child's estate, for negligence and breach of fiduciary duty against the defendants, including various officials of Child and Family Services (CFS), the Minister responsible for CFS and the foster parents - Included as a defendant was the Edmonton and Area Child & Family Services, Region 6, which no longer existed - The provincial Crown had assumed all debts, obligations and liabilities - The Alberta Court of Queen's Bench struck Region 6 as a defendant - Theoretically, the statement of claim could be amended to properly name the appropriate Family Services Authority - However, that would "get them nowhere", because that entity was dissolved and the Crown, already a defendant, had assumed all of its liabilities and obligations - See paragraphs 35 to 38.

Practice - Topic 2230.3

Pleadings - Striking out pleadings - Grounds - Failure to plead material facts - [See Torts - Topic 7905 ].

Torts - Topic 89.1

Negligence - Duty of care - To parents - [See Torts - Topic 9159 ].

Torts - Topic 2655

Vicarious liability - Particular persons - Foster parents - An apprehended child was placed with the defendant foster parents and died from injuries inflicted by one of the foster parents - The child's mother claimed that the provincial Crown was vicariously liable for the actions of the foster parents - The Crown sought to strike the claim on the ground that a 2003 Supreme Court of Canada case from British Columbia held that the Crown was not vicariously liable for the actions of foster parents - The Alberta Court of Queen's Bench declined to strike the claim, stating that "Without a very detailed factual analysis as to what an Alberta 'foster parent' is and does and what a British Columbia foster parent is and does, I cannot conclude that [the Supreme Court of Canada case] bars all vicarious liability claims against the Crown in Alberta" - See paragraphs 115 to 116.

Torts - Topic 7905

Survival of actions - General - Injuries resulting in death - An apprehended child died due to injuries inflicted by the foster parents with whom the child was placed - The mother brought an action for damages, on her own behalf and on behalf of the child's estate, for negligence and breach of fiduciary duty against the defendants - The defendant Crown applied to strike the claim by the child's estate - The Crown argued that any claim by the child's estate was limited under the Survival of Actions Act to damages that resulted in actual financial loss to the child, and that no facts of such loss was pleaded - The Alberta Court of Queen's Bench held that while the mother "would appear to be validly self-appointed as litigation representative for [the child's] Estate, the nature of any permissible claim needs to be properly pled." - See paragraphs 50 to 56.

Torts - Topic 9159

Duty of care - Particular relationships - Claims against public officials, authorities or boards - The Alberta Court of Queen's Bench held that the law was clear "that the Crown does not owe a duty of care to the parents or guardians of children in the apprehension process" - The reason was that the Crown should not have to face two potentially conflicting duties: to the child and to the parents - The court rejected the argument of a mother of an apprehended child that a duty of care could be owed to both parent and child where the interests of the child and parent coincide or were identical (i.e., no conflict) - The court stated, inter alia, that "determining mutuality of interests would be impossible to determine until after all proceedings have been completed. The unity of interest is something which might be determined with the benefit of hindsight, but would be virtually impossible to predict. Allowing for a duty of care to parents concurrent with a duty to act in the child's best interests would put the Crown in an impossible situation to be able to attempt to manage its legal obligations. ... child welfare workers must be free to carry out their primary duty, that being to act in the child's best interests, free from conflicts. Those conflicts must, to be given meaning, be taken to be actual, potential or perceived conflicts." - See paragraphs 57 to 82.

Cases Noticed:

C.H.S. et al. v. Director of Child Welfare (Alta.) (2006), 403 A.R. 103; 2006 ABQB 528, refd to. [para. 18].

A.J.G. v. Alberta et al. (2006), 402 A.R. 340; 2006 ABQB 446, refd to. [para. 18].

L.C. et al. v. Alberta et al. (2010), 469 A.R. 375; 470 W.A.C. 375; 2010 ABCA 14, refd to. [para. 18].

Tottrup v. Lund et al. (2000), 255 A.R. 204; 220 W.A.C. 204; 81 Alta. L.R.(3d) 27 (C.A.), refd to. [para. 21].

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. 21].

Fullowka v. Whitford, 1996 CanLII 10199 (N.W.T.C.A.), refd to. [para. 24].

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. 32].

Hislop et al. v. Canada (Attorney General) (2007), 358 N.R. 197; 222 O.A.C. 324; 2007 SCC 10, refd to. [para. 50].

Ferraiuolo Estate v. Olson (2004), 357 A.R. 68; 334 W.A.C. 68; 2004 ABCA 281, refd to. [para. 50].

Duncan Estate v. Baddeley et al. (1997), 196 A.R. 161; 141 W.A.C. 161; 1997 ABCA 100 (C.A.), refd to. [para. 52].

Steinkrauss et al. v. Afridi (2013), 566 A.R. 128; 597 W.A.C. 128; 2013 ABCA 417, refd to. [para. 53].

Dotto Estate et al. v. Thickson et al. (2013), 564 A.R. 148; 2013 ABQB 348 (Master), refd to. [para. 53].

Giacomelli v. Canada (Attorney General) (2008), 236 O.A.C. 212; 2008 ONCA 346, leave to appeal denied (2008), 390 N.R. 395; 2008 CanLII 48615 (S.C.C.), refd to. [para. 54].

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. 57].

Deros v. McCauley et al., [2011] B.C.T.C. Uned. 195; 2011 BCSC 195, refd to. [para. 71].

Mustapha v. Culligan of Canada Ltd. (2008), 375 N.R. 81; 238 O.A.C. 130; 2008 SCC 27, refd to. [para. 72].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al. (2001), 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 73].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

A.L. et al. v. Ontario (Minister of Community and Social Services) (2006), 218 O.A.C. 150; 274 D.L.R.(4th) 431 (C.A.), refd to. [para. 83].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 83].

Trang et al. v. Edmonton Remand Centre (Director) et al. (2007), 412 A.R. 215; 404 W.A.C. 215; 2007 ABCA 263, refd to. [para. 83].

P.L. v. Alberta et al. (2012), 529 A.R. 21; 2012 ABQB 309, refd to. [para. 83].

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. 85].

Augustus v. Gosset, [1996] 3 S.C.R. 268; 202 N.R. 241, refd to. [para. 88].

New Brunswick (Minister of Health and Community Services) v. J.G. and D.V., [1999] 3 S.C.R. 46; 244 N.R. 276; 216 N.B.R.(2d) 25; 552 A.P.R. 25, refd to. [para. 88].

J.O. et al. v. Alberta et al. (2013), 576 A.R. 307; 2013 ABQB 693, refd to. [para. 93].

F.R.N. et al. v. Alberta et al., [2014] A.R. Uned. 470; 2014 ABQB 375, refd to. [para. 98].

Statutes Noticed:

Survival of Actions Act, R.S.A. 2000, c. S-27, sect. 5 [para. 51].

Authors and Works Noticed:

Horsman and Morley, Government Liability Law and Practice (2012), p. 1A-9 [para. 35].

Counsel:

Robert P. Lee, for the plaintiffs;

Peter Barber, for the defendants.

This application was heard on April 14, 2014, before Graesser, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on June 17, 2014.

                                                                                                   

Nature of Application

This is an application on behalf of the government Defendants to strike the entire Amended Statement of Claim, or at least significant parts of it. The Plaintiffs oppose the application, although they recognize the need to amend the Amended Statement of Claim to conform to a number of decisions in this Court and in the Court of Appeal in similar actions involving the child welfare system.