In Elizabeth Fry Society of Greater Vancouver v. British Columbia (Public Guardian and Trustee), 2025 BCSC 610, released on April 2, Justice Margot Fleming certified common issues concerning whether the PGT was liable to the impacted students for principal amounts and any investment income they would have received from the benefits.
The plaintiff, the Elizabeth Fry Society of Greater Vancouver, alleged that the PGT was negligent and breached its fiduciary duty by failing to open registered education savings plans (RESPs) and by not obtaining no-cost provincial and federal government contributions to the RESPs.
RESPs are opened by a subscriber for the benefit of a child, and the PGT may subscribe as a public primary caregiver under the Income Tax Act.
Both the federal and B.C. governments offer no-cost contributions to RESPs, and a subscriber does not need to contribute to RESPs to receive these benefits.
The federal government provides the Canada Learning Bond (CLB) for eligible children born in 2004 or later, which includes children in care under the age of 18. The CLB provides an initial payment of $500 in the first year the child is eligible, with an additional $100 per year until age 15, up to a maximum of $2,000.
The B.C. government provides the B.C. Training and Education Savings Grant (BCTESG), a one-time contribution of $1,200 to the RESPs of children born in 2006 or later.
The plaintiff pleaded that the PGT failed to protect the interest of children for whom it was the property guardian and trustee by failing to obtain available government financial support.
In Gibot v. British Columbia (Public Guardian and Trustee), 2023 BCSC 1597, the B.C. Supreme Court found that the plaintiff’s pleadings disclosed causes of action in negligence and breach of fiduciary duty with respect to the RESP related claims.
The plaintiff had also alleged that the PGT had breached its fiduciary duty to children in its care by failing to open registered disability savings plans (RDSPs) and to obtain no-cost government contributions to these plans.
However, the court found that the RDSP claims did not disclose a reasonable cause of action based on a finding that the Director of Child, Family and Community Services and not the PGT was responsible for arranging the medical assessment necessary to apply for the relevant contributions.
The PGT argued that the proposed class definition for the RESP claims was too broad. The class included all individuals born on or after Jan. 1, 2004, who were subject to a continuing custody order under the Child, Family and Community Service Act or for whom the Public Guardian and Trustee was appointed as property guardian.
The defendant argued that the proposed class was too broad because it did not account for whether a class member has or will attend a qualifying post-secondary institution, to which RESP funds may be applied.
It argued that since attending a qualifying post-secondary institution is a prerequisite for withdrawing CLB and BCTESG contributions, the proposed class included those who “manifestly have no claim.”
The plaintiff submitted that requiring youth who had been denied an RESP to prove they will attend post-secondary studies was premature because an RESP can continue for up to 36 years.
They further argued that even if a class member is never able to withdraw the CLB and BCTESG funds, they would be entitled to any interest or investment income from the funds.
Justice Fleming cited Haghdust v. British Columbia Lottery Corp., 2013 BCSC 16, in which the B.C. Supreme Court noted that the fact that the claims of some class members may be defeated by a valid defence and others may prevail does not mean the class is inappropriate.
“Whether liability for damages against the PGT requires establishing that class members have or will attend qualifying post-secondary institutions/programs is a question to be addressed at trial, not certification,” Justice Fleming wrote.
The PGT also opposed certification of the common issue of whether it was liable to class members for the principal amount of the CLB that they would have received.
It argued that since those who did not obtain the CLB as children in care could apply for it between 18 and 20 years of age, the PGT’s conduct could not give rise to damages in the amount of the principal.
The plaintiff made a number of submissions about the barriers to applying for the CLB retroactively, including the fact that there was no evidence that the PGT ever provided information about the application process to children in care or former children in care before the end of their 20th year.
The society also submitted that the remote possibility of retroactively applying could be addressed following the trial with a requirement for proof that no application was made, and did not take away from there being some basis for the existence of the common issue.
The court held that the PGT’s argument that no loss could be established for the principal amount of the CLB was merits-based and therefore not properly considered at certification, except to the extent necessary to determine whether the pleadings disclose a cause of action.
Justice Fleming certified the action as a class proceeding.
Counsel for the parties were not immediately available for comment.
Counsel for the plaintiff were Mathew Good of Good Barrister and Simon Lin of Evolink Law Group.
Counsel for the respondent was Brent Olthuis of Olthuis van Ert.
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