“The vulnerable children wanted to ask the Minister why the government would promptly consider what action to take when a child had a possible lawsuit, but when the possible lawsuit was against the government, the government asserted that the vulnerable children had to wait until they were 18 before any action could be taken regarding the vulnerable child’s possible lawsuit against the government,” said Robert Lee, counsel for the respondents.
In Forsyth v L.C., 2024 ABCA 14, released Jan. 15, Alberta’s former children’s services ministers Heather Forsyth and Janis Tarchuk appealed a decision of a case management judge requiring that they attend for questions in the class action proceeding Alberta (Office of the Child and Youth Advocate) v L.C., 2023 ABKB 523, a decision that was stayed pending appeal in Forsyth v. L.C., 2023 ABCA 290.
The questioning was restricted to their ministerial years: 2004 to 2006 for Forsyth and 2006 to 2010 for Tarchuk. It was also restricted to two allegations in the class action proceedings, which were “alleged misfeasance in public office by relevant Directors and ‘failure of the Government to sue itself for harm to children in care’.”
The appellate court noted that plaintiffs LC and EMP “brought a claim against Her Majesty the Queen in right of Alberta as represented by the Director of Child Welfare on their own behalf and on behalf of all children in care of the Crown under temporary guardianship orders between February 21, 2002 and November 1, 2004 granted under the Child Welfare Act, and who remained in custody and care of the Crown after it failed to prepare and file with the Court care plans within 30 days of obtaining the temporary guardianship order, and on behalf of their parents and guardians.”
LC and EMP alleged that after Nov. 1, 2004, the director or delegates “failed to advise the Court on numerous occasions that they had neglected to file the required care plans for children in care, that the department’s practice was to avoid suing the Crown for children in care, the department neglected to provide proper advice and assistance to allow children in care to sue the Crown, and it took no steps itself to consider suing on behalf of the affected children in care.”
The matter had been managed by the case management judge since 2010. The same year, the Crown brought an application to strike various portions of the claim which was allowed and upheld by the appellate court. EMP was allowed “to maintain her claim based on the alleged violation of fiduciary obligations, and further allow[ed] the [children in care, their parents and guardians] to maintain their allegations relating to the tort of misfeasance in a public office and the purported violations of ss. 7 and 9 of the Charter.”
The litigation was amended and certified as a class action in 2016. In 2017, the appellate court restricted the class action further, ordering that the applicable class period allowed was from Feb. 21, 2002 and Nov. 1, 2004.
The case management judge acknowledged that the tenure of the ministers post-dated the relevant period. Saying that “the initial burden on a party wishing to examine a Minister is ‘to demonstrate that there is a legitimate need to question the minister and that the proposed questioning is not likely an abuse of process’.”
He added that no one had been identified as having better knowledge of the facts and that they would have “knowledge of governmental and departmental policies regarding the government suing itself.” It was concluded that “exceptional circumstances were made out and the former Ministers should submit to questioning on these issues.”
The appellate court found that the case management judge did not analyze why the ministers should be questioned as a special circumstance and merely indicated that they were responsible for child welfare matters at a certain time.
“The case management judge provided no analysis as to how the Ministers’ knowledge meets the special or extraordinary circumstances criterion. In particular, he did not identify any special relationship between the role that the Ministers occupied, or the work that they did, and the issues to be resolved in the litigation. There is no evidence of knowledge on their part during their time as Ministers which is obviously relevant and material.”
It was noted that personal intentional tort of misfeasance in public office involves “knowingly and deliberately engaging in unlawful conduct by a public office holder abusing or exceeding authority and being aware that it would likely harm the claimant.”
However, there was no evidence “of any knowledge of these Ministers in these matters that the actions of the Directors were deliberate and in knowing disregard for the law” nor that the ministers were decision-makers for the purpose of the questions to be posed.
“LC and EMP have already questioned Deputy Ministers, Assistant Deputy Ministers, Directors, and Associate Directors of Child Welfare for the relevant period of time. They may be the persons best informed to answer the questions proposed,” the court wrote.
The ministers pointed to the evidence of five individuals already questioned and said that they “were all able to answer every question put to them about the failure to sue allegations.”
“As to the personal tort of malfeasance in public office, the departmental actors at the relevant time would reasonably be expected to be at least equally well informed as Ministers as to any misfeasance of the Director or delegate, unless as the former Ministers say ‘they were the only ones who knew what the policy was or how it ought to have been applied,’ which is clearly not the case.”
The appeal was allowed by Justices Jack Watson, Kevin Feehan and Alice Woolley.
“The one disappointing part of the decision is that from the vulnerable children’s perspective who are trying to sue the government of Alberta… is that the Supreme Court’s 2014 decision in Hryniak v. Mauldin, 2014 CSC 7, [which said] that ‘Ensuring access to justice is the greatest challenge to the rule of law in Canada today,’ is still true,” said Lee.
He added that the representative plaintiffs “will try to fix up their application so that they can find out why the former Ministers failed to protect their legal rights” by failing to provide them with independent legal representation. They plan to serve another Notice to Attend and file a better supporting affidavit.
Counsel for the appellant, Damian Shepherd of Chomicki Baril Mah LLP, was not immediately available for comment.
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