LC & EMP v ALBERTA (DIRECTOR OF CHILD WELFARE)

The underlying Action was a certified Class Proceeding alleging that Alberta’s Director of Child Welfare (the “Director”) failed to prepare or file required care plans for children placed under Temporary Guardianship Orders (“TGOs”) between February 21, 2002 and November 1, 2004. This rendered some TGOs void and caused harm to child class members and their relatives.

The Plaintiffs applied for Summary Judgment pursuant to Rule 7.3 on several common issues, alleging that the failure to prepare or file care plans and the continued custody of children after the TGOs became void constituted negligence and breaches of fiduciary duty. The Plaintiffs also sought findings that the Director owed duties to take remedial or legal action to safeguard the children’s legal interests and that the Defendant had no valid common limitations defences. The Defendant opposed the Application, arguing that the evidentiary record was inadequate and that the issues could not be fairly resolved without a Trial.

Neilson J. confirmed that, pursuant to Rule 7.3, Summary Judgment is only appropriate where the record permits a fair and just determination without a Trial. Justice Neilson reiterated that the parties were required to put their best foot forward and that the Plaintiffs bore the onus of proving all elements of their claims while demonstrating that the Defendant had no viable defence.

Applying Rule 7.3, the Court found the evidentiary record inadequate to resolve the common issues summarily. Neilson J. noted that the Plaintiffs had filed no Affidavit evidence from class members and relied largely on materials the Court held were inadmissible or of no evidentiary value. In contrast, Justice Neilson highlighted that the Defendant adduced detailed Affidavit evidence regarding the steps taken once the failure to file care plans was discovered.

Although the Director had admitted negligence in failing to file the required care plans, the Court held that the Plaintiffs failed to establish causation and proof of damages. Justice Neilson further held that an administrative failure to file a care plan did not constitute a breach of fiduciary duty, and that the Director did not owe duties to commence proceedings against itself or to safeguard the children’s legal interests, which lay with the Public Trustee.

The Court concluded that the Plaintiffs had not shown that there was no defence to the remaining common issues. Justice Neilson therefore dismissed the Application for Summary Judgment and directed that the outstanding common issues proceed to Trial.