Alberta (Child Welfare) Service Plan Class Action – Notice of Certification

INADEQUATE SERVICE PLANNING AND KIDNAPPING BETWEEN JUNE 30, 1985 and SEPTEMBER 30, 2009

• Failing to make and file service plans in Court
• Kidnapping children by keeping children without a lawful Court Order
• Breach of Fiduciary Duty by failing to avoid a conflict of interest
• Breach of the Charter s. 7 right to security of the person
• Abuse of Public Office by keeping families apart knowing they did not have a valid Court Order

LC, EMP by her Litigation Representative Phillip Tinkler, DC by his next friend LC and CC by her next friend LC
v.
Her Majesty the Queen In Right of Alberta and Metis Settlements Child & Family Services, Region 10

Docket: 0703 10836

A lawsuit against Alberta Child Welfare for Child Welfare’s failure to prepare plans of care and concurrent plans (service plans) and to file plans of care in Court was certified as a class action by the Court of Queen’s Bench on March 14, 2016. The decision can be found below in the Documents section. This Class Action alleges that from June 30, 1985 to September 30, 2009 Child Welfare failed to prepare service plans and failed to file plans of care in Court as they were required to do under the law. As a result of these failures, Child Welfare lost legal authority over children and Child Welfare kept children in their care without any lawful Court Order. We argue that this is comparable to kidnapping.

If you or your child was in the care of Alberta Child Welfare after October 1, 2009 and believe that you suffered injuries because Alberta Child Welfare did not make a proper service plan for your family or did not implement a service plan that was created, then please go to the section of this website Individual Lawsuits – Including Abused or Injured by Alberta Child Welfare.

This Class Action has been extremely difficult. Class Members could not afford to pay for lawyers to sue Alberta Child Welfare. Class Members could not find any legal funding company that was willing to loan money to the Class Members and no lawyers were willing to take the case on a contingency basis in which the lawyers would not be paid until the case was finished. The main reason given by the funding companies and law firms was because, it was too difficult to sue the Government due to the enormous resources that the Government had to fight the lawsuit, the desire of the Government to fight the lawsuit aggressively and because the Government had the power to change the law at the end of the lawsuit to change the laws so that the Government did not lose the lawsuit.

Alberta Child Welfare fought this Class Action from the time that it was just being developed. It is important to recognize that when Alberta Child Welfare officials found out that a not for profit organization was going to obtain information from Robert Lee and Virginia May QC about the right of children to sue for injuries that they suffered while in the care of Alberta Child Welfare, that the officials told the not for profit organization that the Government would cancel the organizations Government funding. It is also important to recognize that even though Alberta Child Welfare had official policies that required Alberta Child Welfare to help children in care to sue, it appears that Alberta Child Welfare had informal policies and practices not to help the children to sue, if the target of the lawsuit would be the Alberta Government.

Robert Lee was able to apply the principles made by the Supreme Court of Canada regarding advanced costs to this Class Action and was able to obtain a Court Order that the Alberta Government would have to pay the legal fees of the Child Class Members to the completion of the case and including all Appeals. This was an extremely important decision because the Class Members would not be able to go ahead with the case without the advanced costs order. The decision can be found in the documents section.

Why is the Child Welfare Service Plan/Kidnapping Class Action Important?

Service planning is a very important part of Child Welfare work and the lack of proper service planning has resulted in children falling through the cracks of the Child Welfare system and parents not being given the help that they needed. Proper service planning is required so that families that simply need some help to stay together are given the help so that they do stay together. Proper service planning is required so that children that go into the care of the government are properly cared for with a plan for the child’s upbringing. This prevents the children from just drifting aimlessly in care. This Class Action will prove the importance of service planning and demonstrate that Child Welfare must meet it’s legal duties of proper service planning to children and their families.

Recently, the Alberta Children’s Advocate Reported on the death of 3 children who were returned to their biological families, but without follow up of services or service planning. This is the reason why this Class Action is so important. When children and families do not receive proper service planning the consequences can be severe, even death.

Another important reason for this Class Action is to prove that children and parents have legal rights and that Child Welfare cannot illegally break these legal rights. This Class Action lawsuit is to prove that Child Welfare must follow the laws too and that if Child Welfare breaks the law that they will be held accountable. This lawsuit is to prove that if Child Welfare takes children away from parents without any legal authority that is the same as kidnapping.

Another important reason for this Class Action is that it is likely that while many children were “kidnapped” by Child Welfare (in the care of Child Welfare without a valid Court Order), they suffered severe sexual abuse, physical abuse, emotional abuse and neglect. This Class Action is to hold Child Welfare accountable for the injuries that they wrongfully allowed children to suffer when those children were not legally in Child Welfare’s care.

Another important reason for this Class Action is that when the government found out that they had not been following the law regarding service planning for decades, they just tried to sweep it under the carpet. They did not tell all of the children and families that were affected and the Government even passed a law to try to get around their decades of mistakes. This Class Action will hold Child Welfare accountable for trying to hide their wrongdoing.

UPDATE

After the Child Class Members received advanced costs (Okanagan Order for costs) for the Government of Alberta to pay the Child Class Members legal fees, Alberta Child Welfare applied to the Court of Appeal for permission to Appeal the decision. The Government’s application was denied by the Court of Appeal. The test for obtaining permission to Appeal the Advanced Costs Order (Okanagan Order for costs), the Government must show “a good arguable case having sufficient merit to warrant scrutiny by this Court.”In the Court’s decision, the Honourable Justice Greckol stated: “I have concluded Alberta has failed to show any merit to their proposed appeal, let alone a good arguable case with sufficient merit to warrant scrutiny by this Court. The application for permission to appeal is denied.” In addition, the Honourable Justice Greckol Ordered Alberta Child Welfare to pay the Child Class Members and the Relative Class Members a total of $20,000 to fight Alberta Child Welfare’s Appeal of the decision to approve the lawsuit as a Class Action. The decision of the Court of Appeal can be found in the Documents section below.

Despite the strong words from the Honourable Justice Greckol of the Court of Appeal that there is not any merit to an appeal of the advanced costs order, Alberta Child Welfare applied to the Supreme Court of Canada for permission to Appeal Justice Greckol’s decision so that they can apply to appeal the advanced costs decision of Justice Graesser. Alberta Child Welfare’s Memorandum in support of their Appeal to the Supreme Court of Canada can be found in the Documents section below.

After losing the application in the Court of Appeal before the Honourable Justice Greckol, Alberta Child Welfare refused to pay some of the fees of Mr. Tinkler, the Child Class Members’ Litigation Representative. The Case Management Justice Ordered Alberta Child Welfare to pay Mr. Tinkler’s fees and during the Court hearing on May 18, 2017, the case management Justice described the Government’s tactics as: “It is not lark. It’s a — it’s a — it’s a — it’s government bullying tactics to try to make things as difficult now for the plaintiff classes to proceed to a matter on the merits.”

In Alberta Child Welfare’s application to the Supreme Court of Canada, Alberta Child Welfare argues that this Class Action about Child Welfare’s failure to make and file service plans and to keep children away from their parents, without a valid Court Order (kidnapping) is not a matter of sufficient public importance. The Alberta Child Welfare Memorandum states:

“A determination as to whether Alberta breached a duty of care owed to an individual by not filing a Service Plan is specific only to that individual – or in the context of a class action, the individuals who fall into the same class of plaintiffs. But outside that class category there is no widespread public interest that would justify the expenditure of public funds.”

It is certainly not easy to sue Alberta Child Welfare. This case started from a decision of the Court of Appeal in 2001 and 16 years later, the case has not even reached the point where the Alberta Government must disclose it’s records and answer questions. If the Alberta Government is willing to argue that Alberta Child Welfare kidnapping children is not in the public interest, then you can see how this case can go on forever. The bullying actions by Alberta Child Welfare demonstrate why lawyers and funding companies are not willing to help individuals to sue Alberta Child Welfare. It is clear that an advanced costs order was necessary for this lawsuit to proceed and fortunately one was obtained.

Supreme Court Orders Alberta Child Welfare to pay the legal fees of the Child Class Members (November 6, 2017).

From the beginning of this case, EMP and LC argued that they could not proceed with this class action lawsuit unless their legal fees were paid. The reason was because neither LC nor EMP nor any other class member had enough money to pay for the law suit themselves. In addition, no lawyers were willing to take the case on a contingency (percentage) basis. The main reason that no lawyer would take the case was because the Government could change the law if they lost the case and deprive the victims of any compensation. Lawyers were extremely hesitant to take the business risk of taking the case, when the Government already used it’s legislative powers to try to fix their problems in 2001, after the Court of Appeal found that Alberta Child Welfare was keeping children and parents from each other without a valid Court Order.

On February 10, 2017, the Honourable Justice Robert Graesser of the Alberta Court of Queen’s Bench Ordered that Alberta Child Welfare had to pay the legal fees for the Child Class Members to the completion of the case. The decision is found at: LC v Alberta, 2017 ABQB 93 (CanLII), <http://canlii.ca/t/h6m59>.

The Government applied to appeal the decision to the Court of Appeal and was rebuked by the Alberta Court of Appeal. The The Honourable Madam Justice Sheila Greckol declared that

“I have concluded Alberta has failed to show any merit to their proposed appeal, let alone a good arguable case with sufficient merit to warrant scrutiny by this Court. The application for permission to appeal is denied.”

Despite the decision of the Alberta Court of Appeal saying that the Government had no merit to appeal the advance costs order, the Government spent more tax payer money to apply for permission to file an appeal to the Supreme Court of Canada. That application by the Government of Alberta was also denied by the Supreme Court of Canada on November 6, 2017. https://scc-csc.lexum.com/scc-csc/scc-l-csc-a/en/item/16840/index.do

As a result, Alberta Child Welfare has to pay the legal fees of the Child Class Members to the end of the case. This is the first time in Canada that an advance costs order has ever been granted to a plaintiff in a damages claim in a Class Action.

The Relative Class Members will also be applying to force the Government to pay their legal fees so that their case can proceed to trial.

Alberta Court of Appeal Reduces Class Action from June 30, 1985 to November 15, 2009 to February 21, 2002 to November 1, 2004.

Alberta Child Welfare appealed the decision of the Honourable Justice Graesser certifying the lawsuit as a class action to the Court of Appeal. The Government argued that the Class Action should not proceed covering the time period from June 30,1985 to November 15, 2009 and successfully convinced the Court of Appeal to reduce the Class Action to a time period of February 21, 2002 to November 1, 2004. (LC v Alberta, 2017 ABCA 284 (CanLII), <http://canlii.ca/t/h5t14>). The Court of Appeal decided that reducing the Class would make it more efficient for the class members from 2002 to 2004 to proceed with their law suit. However, the result of the Court of Appeal’s decision is that now all of the Class Members from 1985 to 2002 and from 2004 to 2009 cannot use this Class Action to proceed with their case. That means that each and every Class Member must now file their own individual lawsuit.

This is a disaster for the Class Members because now the Class Members will each have to find their own lawyer and if they cannot pay the legal fees of their lawyer, each Class Member will have to apply to force the Government to pay their legal fees. This would mean that instead of all of the Class Members hiring one lawyer to prosecute one Class Action case, they will have to hire lawyers to prosecute many individual lawsuits. For the lawyers, this means that instead of doing everything in one case, the lawyers will be doing the same thing in many cases. This will likely mean that instead of having one Justice of the Court of Queen’s Bench managing one Class Action, the one Justice may have to manage many cases that are almost identical or there could be several Judges appointed to manage all of the individual cases. If there are many cases, there could be different decisions by different Judges. As a result this could mean that there will be many more appeals to the Court of Appeal. The likely result will be enormous delay for everyone, including the class members from 2002 to 2004 and a astronomical increase in the cost to prosecute all of the cases. We believe that there are thousands of Class Members. It is hard to imagine how the Courts and the Government lawyers will be able to manage thousands of individual law suits. Of course one possibility is that the Courts will not give everyone advance costs. If that happens then all of the thousands of Class Members from 1985 to 2002 and from 2004 to 2009 will not get a chance to argue their case. The Government will face no accountability and nothing will change in the Child Welfare system. The main reason why I have been willing to represent the Class Members without being paid and the main reason why the Representative Plaintiffs, EMP and LC, have wanted to prosecute this law suit is because we all want to change the Child Welfare system. We want the Child Welfare system to work properly and we believe that the only thing that will force the Government to improve the conditions for children and families dealing with the Child Welfare system would be a large damage award. We all just want to save children and families in the system now and in the future from suffering from negligence, neglect and abuse by the Child Welfare system.

The Child Class Members are planning to file an application for permission to Appeal the Court of Appeal’s decision and have been awarded advance costs by the Honourable Mr. Justice Graesser to file the Application.

The Relative Class Members (parents) cannot find any lawyer that is willing and able to file an application for Appeal, so they have also applied to the Honourable Mr. Justice Graesser for advance costs to hire a lawyer to make an application for permission to appeal the Court of Appeal’s decision.

If the Supreme Court of Canada first gives permission to file an Appeal and then if the Supreme Court overturns the Court of Appeal and extends the class back to 1985 to 2009, then one lawyer will be able to represent the Child Class Members and one lawyer will be able to represent the Relative Class Members. This would eliminate the need for thousands of individuals to file their own individual law suits.

More Advanced Costs

The Child Class Members and the Relative Class Members both want to Appeal the decision of the Court of Appeal to reduce the size of the class. Before an Appeal can be filed, the Supreme Court of Canada must give permission to the Class Members to file an Appeal. The Honourable Justice Graesser has awarded additional advance costs to the Child Class Members and the Relative Class Members to file an application to the Supreme Court for permission to file an appeal to the Supreme Court. The Child Class Members were awarded $18,000 (LC v Alberta, 2017 ABQB 710 (CanLII), <http://canlii.ca/t/hnvf4>, ) and the Relative Class Members were awarded $6,000 (LC v Alberta, 2017 ABQB 710 (CanLII), <http://canlii.ca/t/hnvf4>,)

The inability of the Class Members to be able to afford to pay their lawyers to prosecute this case continues to be the main obstacle for the Class Members.

Getting Your Records

One of the biggest obstacles for the Child Welfare Service Plan/Kidnapping Class Action is that it is almost impossible for Class Members to find out if you are a Class Member. The Child Welfare system, the government Freedom of Information and Privacy Department and the Provincial Court has made it extremely difficult for children or parents/guardians to get their records so that they could find out if they are in this Class Action. Many individuals have requested their records and even made applications to the Provincial Court to get their records so they could find out if they are in this Class Action, but they have not been able to get their own personal information and records. Now that the Court of Appeal has reduced the Class, it is extremely important for everyone to get their records and find out if you are a Class Member because there is a deadline to sue.

Anyone that was in the care of Child Welfare or had a child in the care of Child Welfare from June 30, 1985 to November 1, 2009 could be in the Class Action and could be entitled to compensation.

Questionnaire

Child Welfare Service Plan Class Action

Documents

Court of Queen’s Bench [coming soon]

– QB Decision to Certify the Class Action LC v Alberta, 2016 ABQB 151 (CanLII)

– QB Decision for advanced costs (Okanagan Order for costs) to the Child Class Members LC v Alberta, 2017 ABQB 93 [coming soon]

– Transcript from Court May 18, 2017, (Judge criticizes Alberta Child Welfare for bullying the Plaintiffs) [coming soon]

Court of Appeal

– CA decision denying Alberta Child Welfare permission to Appeal the advanced costs order granted to the Child Class Members and granting the Child Class Members and the Relative Class Members additional advanced costs of $20,000 to defend against Alberta Child Welfare’s Appeal of the decision approving the case to proceed as a Class Action.

LC v Alberta, 2017 ABCA 133 (CanLII)

Supreme Court of Canada

– Memorandum of Alberta Child Welfare Appealing the decision of the Court of Appeal, which denied Alberta Child Welfare permission to Appeal the advanced costs order (Okanagan costs order) granted to the Child Class Members. [coming soon]