Oliver Litigation celebrates a year of success for clients and the public interest

2021 Published Decisions:

Western Cree Tribal Council v Goodswimmer, 2021 ABQB 967, rev’g WCTC v Goodswimmer (10 February 2021), Grande Prairie CP021000555 (ABPC):

An unprecedented child welfare decision by Justice D.L. Shelley on the use of the least intrusive form of child protection under the Child, Youth and Family Enhancement Act, ss. 28-29 (Supervision Orders) to promote the accountability and responsibility of parents following their breach of a Supervision Order to keep working with the Court and their supports on rehabilitation as means of remedying intervention concerns, thereby creating greater opportunity for family reunification and healing.

Justice Shelley writes:

[42] [Section] 29 establishes that if the Court is satisfied that the terms of a Supervision Order have been breached, then the Court may, without further evidence regarding the need for intervention, do one of several things: renew, vary or extend the supervision, or grant a TGO or a PGO. The breach establishes the Court’s authority to make the order without evidence of the need for intervention. This supports the argument of the Director, that it is not necessary to conduct an initial custody hearing in the circumstances because the question of whether there are reasonable and probably grounds to believe that the child is in need of intervention has previously been established. The Court is not required to make the requested order. Therefore, it does not automatically mandate interim custody, but there is no longer a burden on the Director to prove a need for intervention. The Court can consider any relevant evidence and make an order for interim custody pursuant to s. 26(2).” &NBSP

[50] [There is no] case law which addresses whether an order for custody [under CYFEA s. 26] extinguishes a Supervision Order which has not expired.

[51] Section 29 is specific to situations in which the Director alleges that there has been a breach of, or failure to comply with, a term or terms of a Supervision Order. […] The remedies provided in s. 29(1) can only be imposed once the notice has been given, the hearing regarding the breach held, and the Court having determined that the breach or failure has been established.

[52] Holding that the Director is prevented from taking steps, prior to the hearing of the breach allegation, to protect the children (likely by apprehension, as was the case here) is at odds with the overriding objective of the Act, which places the safety, security and best interests of children ahead of all other objectives. Reading s. 29 in conjunction with the whole of the Act, and seeking to ensure that its objectives are fulfilled, leads me to conclude that apprehension of the children during the short interval between when the Director becomes aware of breaches of the Supervision Order and the hearing of the s. 29 Application, does not result in a loss of jurisdiction or a termination of an existing Supervision Order. Rather, such a process reconciles the need to protect the children while ensuring that guardians are provided with notice of a hearing which must be held in a short time frame and at which they can contest the breach allegations.

[53] The position taken by the Director results in a process that protects children who have already been found in need of intervention and whose safety and security is alleged to be jeopardized by breaches of the Order which was put in place to protect them, while protecting the rights of guardian to challenge the position taken by the Director and to have input into the appropriate remedy where the Court concludes that the breach or breaches have occurred.

Mm v Alberta (Child, Youth and Family Enhancement Act, Director), 2021 ABPC 317:

An unprecedented child welfare decision by Judge J.C. Lloyd on the law of intervenor status in private guardianship applications where First Nations ask to participate in decision-making for their children.

As result of this decision, First Nations in Alberta are now presumed to be required as Intervenors who can help the Provincial Court understand and utilize the unique views, laws, programs and services offered by the First Nation, which facilitate Indigenous children’s best interests as articulated by section 53.1 of CYFEA, the TRC’s Calls-to-Action (2015), the Sixties Scoop Settlement (2017), the MMIWG Calls-to-Action (2019), Bill C-92 and An Act Respecting First Nations’ children, youth and families (2019), and, most recently, Bill C-15 and the UNDRIPA Interpretive Tool (2021); for case summary and links to above legislation and reports, visit https://www.linkedin.com/pulse/path-subverting-exclusion-first-nations-canadas-child-anthony-oliver/.

Stamos v Virk, 2021 ABQB 143, aff’g 2018 ABQB 349:

A summary dismissal ruling by Master W.S. Schlosser on limitations and proof of damages in a case where the plaintiff relied on the same incorrect knowledge of three (3) lawyers over a three (3) year period, resulting in him losing the opportunity to prosecute a claim against his first lawyer for non-service of his filed statement of claim.

Master Schlosser writes:

[17] The original action was, in fact, dead (or ‘voidable’, if I can put it that way) on January 29, 2012, but nobody knew it. Until April 6, 2015, Lawyer #1, Lawyer #2, Lawyer #3 and ALIA all thought that the original action was good. I will assume that the lawyers involved (and ALIA) can be said to be representative of what a reasonable person in the position of the Plaintiff should think. None of them, nor would anyone, objectively speaking, have concluded on the facts as presented that an action was warranted. Everyone thought the action had been served.

[18] Mr. Stamos thought the Statement of Claim had been served but that the wrong party had been sued. (There was an Affidavit of Service). ALIA thought that the Statement of Claim had been served and concluded that there was still a viable claim. Lawyers #2 and #3 thought that the action was good and, on the strength of this, served their Affidavit of Records. No one knew the central fact giving rise to the claim against Lawyer #1 until April 6, 2015 [when the fact of non-service was identified].

[19] [O]n that analysis, the claim was still in time when Mr. Stamos retained Mr. Virk to sue Lawyer #1. Mr. Virk made the unfortunate mistake of suing it a month and a half too late.

[20] The Defendants argue that even if the claim had been started in time, it was valueless because it was without merit. I acknowledge that cases such as these (the underlying bar-room assault) are difficult to prove. The identities of the assailants are often unknown and it is an uphill battle to pin the blame on the owner of the nightclub (eg. Rai v 1294477 Alberta Ltd (Vinyl Retro Dance Lounge), 2015 ABQB 349).

[21] The argument here is that if the underlying action had no merit and was essentially valueless, the loss of it does not constitute damages. Without damages a cause of action in solicitor’s negligence would be incomplete. An action against a lawyer based in tort requires proof of damages just like any other negligence claim.

[22] There are, however, out-of-pocket expenses that had been incurred in reliance on the first lawyer’s advice and, secondly, in pursuing the matter through several other counsel.

[23] [G]iven that there is contractual cause of action, and a cause of action in contract does not require damages to be complete but is complete on the breach, there is still a cause of action against the lawyer in contract, notwithstanding the difficulties of proof of value of the original underlying cause of action. So, it’s not a question of whether, but how much.

R v Poucette, 2021 ABPC 192:

An unprecedented sentencing decision by Judge A. Brown on the law of Criminal Code s. 718(2)(e) and Gladue jurisprudence in the sentencing court’s analysis of the MacFarlane factors (whether to impose a lasting criminal record) where the accused, in this case a member of the Stony Nakota Nation (Treaty 7) who pleaded guilty to assaulting his children by repeating a cycle of corporal punishment, seeks a conditional discharge with probationary terms that are suggested by the First Nation.

Judge Brown shows why and how the process of healing intergenerational family and community trauma from Canada’s residential school system, in view of the legislation, the constitutional context, and the various inquiries, most recently the TRC’s Calls-to-Action, s. 53 (vi)-(vii), requires the Court to seek objective information and direct participation by affected communities to accurately and precisely identify the fulsome circumstances of offenders, victims, and the communities where the parties originate or where the offence occurs, to craft sentences that provide the greatest likelihood of reducing recidivism and healing victims.

Because process creates reality, the Court’s incorporation of the unique views and corrective justice practices, in this case evidenced by Stony Nakota’s elders, officials, and civilians, can help reconcile and restore the primary role of First Nations in shepherding their own people whether on or off reserve.

Judge Brown writes:

[16] [The offender] is filled with remorse for the harm he has caused his step-daughters and wept when he read the disclosure in the case. He is committed to healing himself and will enrol in the Stoney Nakoda Parenting Program that begins this month.

[17] Summaries of interviews of eight community members were filed at the sentencing hearing. The comments from these testimonials include: “very respected;” “compassionate;” “very loving;” “has helped many people in Canada and US;” “a very respectful spiritual man;” “is a healer and he works hard to do good;” “gives from the heart, doesn’t turn people away;” “Lenny helped my clients find healing and helped them maintain their sobriety.” […]

[19] Against that backdrop, Mr. Poucette […] is remorseful, pled guilty, will undertake counselling [in the Stoney Nakoda Parenting Program that begins this month] and would willingly participate in activities such as healing circles to make amends to his step-daughters and the community.

[20] Although the objectives of denunciation and general deterrence are primary in this case, they are not the sole objectives. Given the mitigating factors present, the importance of incorporating the additional objectives of rehabilitation and making amends to individuals and the community and the principle of restraint, I conclude that a jail term is not required, neither actual, nor one served in the community. […]

[25] With all the MacFarlane factors in mind, I am persuaded in particular by the notoriety in the community of Mr. Poucette’s crime, and by the threat to his subsistence livelihood with a conviction, that a discharge is not against the public interest in this case.

[28] Thirteen years after Gladue, the Supreme Court spoke again on sentencing of Aboriginal offenders, this time in R v Ipeelee 2012 SCC 13. Confronting evidence that the circumstances of Aboriginal offenders had worsened, the Supreme Court made it clear that sentencing judges are under a duty to inform themselves of Gladue factors and give true effect to the intent of the legislation.

[29] While some of the most common and distressing Gladue factors (addictions, sexual abuse, multiple foster home placements) are not present in Mr. Poucette’s case, others certainly are: blatantly racist treatment, physical and emotional abuse at school, poverty and harsh parental discipline. In particular, there is a direct line to be drawn from Mr. Poucette’s revered parents’ method of discipline to his own handling of discipline of his step-children.

[30] Also, a less common Gladue factor is important in sentencing Mr. Poucette, that is, the ability to cross the Canada-US border with ease, as a member of a cross-border indigenous community [and his subsistence on honoraria paid to him for conducting sacred ceremonies in Nakota communities located south of the border].

[37] [T]o support the objectives of making amends to individuals and the community, there will be a condition requiring Mr. Poucette’s participation in a healing circle if sought by either of his step-daughters or the community. In imposing this condition, I take into account Mr. Poucette’s background as a healer himself, his acknowledgment of his wrongdoing, his remorse and his expressed willingness to engage in a healing circle.