IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
Strohmaier v. British Columbia (Attorney General), |
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2017 BCSC 2079 |
Date: 20171116
Docket: S127416
Registry: Vancouver
Between:
Stacie Vanessa Strohmaier and Dawn Sam
Plaintiffs
And
Her Majesty the Queen in Right of the Province of British Columbia, as represented by the Attorney General, and Public Guardian and Trustee of British Columbia
Defendants
- and -
Docket: S170749
Registry: Victoria
Between:
K.S.
Plaintiff
And
Her Majesty the Queen in Right of the Province of British Columbia (Ministry of Children and Family Development), Her Majesty the Queen in Right of the Province of British Columbia (Ministry of Justice), Public Guardian and Trustee and Workers’ Compensation Board
Defendants
Before: The Honourable Mr. Justice Skolrood
Reasons for Judgment on Sequencing
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Counsel for the Plaintiffs, Stacie Vanessa Strohmaier and Dawn Sam: |
E.F.A. Merchant, Q.C. |
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Counsel for the Plaintiff, K.S. |
R.S. Sahota |
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Counsel for the Defendant, Her Majesty the Queen in Right of the Province of British Columbia: |
J.D. Eastwood, Q.C. |
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Counsel for the Defendant, Public Guardian and Trustee of British Columbia: |
L. Brasil |
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Counsel for the Defendant, Workers’ Compensation Board: |
S. Matthews, Q.C. |
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Place and Date of Hearing: |
Vancouver, B.C. October 19, 2017 |
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Place and Date of Judgment: |
Vancouver, B.C. November 16, 2017 |
[1] A judicial management conference was held on October 19, 2017, to address the question of sequencing of various procedural applications in two actions, both of which have been commenced under the Class Proceedings Act, R.S.B.C. 1996, c. 50 (the “CPA”).
[2] The two actions are:
a) Strohmaier et al v. Her Majesty the Queen in Right of the Province of British Columbia, Vancouver Registry No. S-127416 (“Strohmaier”); and
b) K.S. v. Her Majesty the Queen in Right of the Province of British Columbia et al, Victoria Registry No. S-170749 (“K.S.”).
[3] Both actions involve similar claims brought by individuals who were placed under the care of the Province of British Columbia (the “Province”) as children and who allege that they suffered injuries as a result of tortious or criminal acts of third parties while they were in care. The Province and the Public Guardian and Trustee (“PGT”) are named as defendants in both actions. In the K.S. action, the Workers’ Compensation Board (“WCB”) is also named as a defendant.
[4] The essence of the claims advanced by the plaintiffs in both actions is that the responsible authorities failed to pursue compensation on their behalf for the injuries they suffered, and thereby breached statutory, common law and fiduciary duties owed to the plaintiffs.
[5] The intent of the plaintiffs in both actions is to seek certification of the action as a class proceeding under the CPA.
[6] The following procedural history is taken largely from the written submission of the Province, with which none of the parties take issue.
[7] The Strohmaier action was commenced on October 23, 2012. No steps were taken by the plaintiffs to pursue certification under the CPA.
[8] On May 30, 2014, the PGT requested the appointment of a case management judge, and on June 14, 2014, I was so appointed.
[9] On September 17, 2014, at a judicial management conference, the PGT advised that it wished to bring an application to strike the Strohmaier claims against it before any certification motion took place. Counsel for the plaintiffs was opposed and took the position that the certification application should proceed first.
[10] On September 29, 2014, a sequencing hearing was held to determine the issue, and on October 15, 2014, I delivered oral reasons for judgment (2014 BCSC 2078), in which I held that the PGT could bring its application to strike in advance of the certification application (“Sequencing Decision #1”).
[11] On October 14, 2014, counsel in Strohmaier delivered an unfiled application to certify the proceeding as a class proceeding and an unfiled amended notice of civil claim. The certification application was subsequently filed on October 28, 2014, and the amended notice of civil claim on November 12, 2014.
[12] The PGT filed its application to strike on October 21, 2014, and the application was heard on February 11, 2015.
[13] On July 9, 2015, I released reasons for judgment (2015 BCSC 1189), in which I struck the plaintiffs’ claims against the PGT for breach of statutory duty, bad faith and misfeasance in public office, on the basis that they were bound to fail. I found that the claims in negligence and breach of fiduciary duty were not bound to fail; however, those claims were not properly pleaded in the amended notice of civil claim. I therefore gave the plaintiffs 60 days to file a further amended notice of civil claim, failing which, the PGT was at liberty to apply again to strike the claims.
[14] On September 8, 2015, the plaintiffs in Strohmaier filed a further amended notice of civil claim.
[15] On February 27, 2017, K.S. filed her notice of civil claim.
[16] On May 8, 2017, a case management conference was held in Strohmaier. At that time, counsel for the Strohmaier plaintiffs advised of his desire to proceed with the certification application. Counsel for the PGT however, raised the issue of carriage in light of the fact that a second proposed class proceeding had now been commenced dealing with similar claims.
[17] On May 11, 2017, the plaintiffs in Strohmaier filed a further amended notice of civil claim and on May 12, 2017, they filed an amended notice of application for certification.
[18] Also on May 12, 2017, counsel for the WCB in K.S. wrote and advised of its intention to apply to strike the claim against it. The WCB took the position that its application should precede a carriage motion or any certification application.
[19] On May 31, 2017, I was appointed as the case management judge in K.S. On June 6, 2017, I directed that a joint case management conference be set in both actions to deal with sequencing issues. That conference again proceeded on October 19, 2017.
[20] The plaintiff in K.S. submits that the issue of carriage must be determined prior to the hearing of a certification application in either action. She submits that the vast weight of existing authority supports proceeding in this manner and that indeed, there is not a single reported decision in which certification has preceded carriage.
[21] With respect to the WCB’s proposed application to strike the claim against it, K.S. submits that this should be heard after a carriage motion and at the same time as, or after, a certification application. K.S. submits that the weight of authority again favours delaying an application to strike until after certification. She cites Jiang v. Peoples Trust Company, 2017 BCCA 119, where the Court of Appeal held that the mechanisms under the Rules of Court for obtaining a decision on the merits are “sparingly resorted to” before the certification application (at para. 70).
[22] The plaintiffs in Strohmaier do not dispute that in the normal course, carriage usually precedes certification; however, they submit that the facts of this case warrant an exception to the general rule. They point to the fact that their case has been ongoing since 2012 and that the court, and in particular, me, as the case management judge, has had considerable involvement in the case to date. They submit that the principles of judicial economy and access to justice support permitting their case to proceed to certification and that it would be unreasonable to permit the K.S. action, launched at the “eleventh hour” to derail the process.
[23] In terms of the WCB’s proposed motion, the Strohmaier plaintiffs submit that the application to strike should be considered as part of certification, given that the question of whether there is a cause of action is an integral element of the certification analysis.
[24] The Province supports the view that carriage should be determined in advance of certification, in accordance with the common practice, as established by the authorities. It submits further that the WCB’s application to strike should be heard after the carriage motion and at the same time as the certification application, given that the issues will be the same on the strike and certification applications. Proceeding in this fashion will avoid duplication and is consistent with the objectives of economy and judicial efficiency.
[25] The PGT also takes the view that carriage must precede certification. It too points to the weight of authority favouring this approach. In terms of the WCB’s application, the PGT submits that it should be heard before certification as the application may help to narrow the issues. In support, the PGT cites my previous decision in Sequencing Decision #1, in which I permitted it to bring its application to strike in advance of a certification application.
[26] Lastly, the WCB submits that its application to strike should be heard first, in advance of both the carriage and certification motions. It submits that the claims advanced against it by K.S. are fatally flawed and are bound to fail. It submits further that resolving this issue first will not only narrow and focus the issues on certification, it will also simplify the carriage issue given that the carriage analysis will require the court to assess the theories and causes of action advanced in the two competing proceedings. Conversely, that process will be made more complex if the WCB is a named defendant in one action but not the other.
[27] As noted above, there is a wealth of authority holding that carriage should be determined in advance of a certification application. In her written submission, K.S. cites Nelson v. Merck Frosst Canada Ltd., 2006 BCSC 1549 [Nelson], Grasby v. Merck Frosst Canada Ltd., 2007 MBQB 97 [Grasby], and Joel v. Menu Foods Genpar Limited, 2007 BCSC 1248 [Joel], as particularly useful authorities illustrating why a carriage motion should go first.
[28] In Nelson, Madam Justice Allan said the following, in connection with a similar issue about whether carriage or certification should go first, at paras. 30-31:
[30] The objective set out in Rule 1(5), namely, “to secure the just, speedy and inexpensive determination of every proceeding on its merits,” is clearly applicable to class proceedings. Such a goal can only be met by determining the carriage issues prior to certification. The real issue is which counsel should have carriage of the class proceedings in the circumstances, having regard to the policy objectives of class proceedings: judicial economy by avoiding multiplicity of individual suits; access to justice by making the prosecution of claims economical; and behavioural modification by calling actual and potential wrongdoers to account.
[31] In my opinion, it is clearly logical as well as fair and expeditious to hear the carriage motion in this case before any certification hearing. I do not agree with Mr. Merchant that the law in British Columbia is, or should be, similar to that in Quebec where the first applicant for an Authorization (certification) hearing is heard and only if that application is denied, can the next-in-time applicant apply for Authorization. Alternatively, Mr. Merchant suggests that the carriage issue be determined at a joint certification hearing. In my view, such a procedure would entail unwarranted expense and inconvenience.
[29] In Grasby, Justice McKelvey said at para. 25:
[25] I have no difficulty in finding that this Court has inherent jurisdiction to order that a carriage motion proceed prior to certification. The inherent jurisdiction of this Court to control its processes and to manage litigation support this finding, as do ss. 38 and 94 of The Court of Queen’s Bench Act. Further, the case law evidenced by Richard, Setterington, Nelson, Gorecki v. Canada (Attorney-General), 2004 CarswellOnt 1266 and Grenier v. CCI Capital Canada Ltd., 2005 CarswellOnt 1141 all demonstrate the practice of carriage motions preceding certification. This approach is primarily to streamline the process and speaks to the issue of judicial economy and access to justice. These sections of The Court of Queen’s Bench Act and the case law support hearing carriage prior to certification in this case. The ordinary rules and the inherent jurisdiction of court are not ousted by virtue of the existence of the CPA. Further, this result is in keeping with the spirit of the CPA which serves to promote:
(1) resolution of common issues in the best interests of the putative class, while being fair to the defendant;
(2) procedural mechanism for resolving common or overlapping issues in a single proceeding, minimizing duplicative activity and conflicts in a proceeding; and
(3) judicial economy and access to justice which enable class proceedings to be handled in the most just, expeditious and inexpensive means possible.
…
[30] In Joel, Mr. Justice Hinkson, as he then was, endorsed the “reasoned analyses” in both Nelson and Grasby (at para. 40). He concluded at para. 41:
[41] The carriage motion in the Joel action must be heard to determine which B.C. action should be certified, and which action should be stayed.
[Emphasis added.]
[31] I accept the submission of the Strohmaier plaintiffs that the case law does not go so far as to require that a carriage motion be heard before certification in every case, but as the authorities referred to above, along with the numerous other authorities cited by the parties make clear, that will be the norm unless there are exceptional circumstances. The reasons for proceeding in this manner are succinctly summarized by Justice Edmond in Thompson et al. v. Minister of Justice of Manitoba et al., 2016 MBQB 169, at para. 19:
[19] I am satisfied on the basis of my review of the relevant authorities as well as the relevant legislation that the carriage motion should be heard prior to certification of the proposed class proceeding as it is in the best interests of the putative class, while being fair to the defendants, will avoid multiplicity of proceedings and will serve to secure the just, most expeditious and least expensive determination of the proposed class proceeding.
[32] I am not satisfied that exceptional circumstances exist here that would justify departing from the normal process. While it is true that Strohmaier was commenced well before K.S., it cannot be said that Strohmaier has been prosecuted with any sense of urgency or purpose. The matter originally came before me at the request of the PGT which moved to strike the claim after almost two years of inactivity on the part of the plaintiffs following the filing of the notice of civil claim.
[33] There has been a further lengthy period of inactivity on the part of the Strohmaier plaintiffs following the filing of the amended notice of civil claim on September 8, 2015 and it appears that the recent activity on the file has largely been driven by the commencement of K.S. in February 2017. Regardless, I am not satisfied that Strohmaier is in a more advanced state of readiness than K.S. or that a carriage motion would unreasonably derail or delay the certification process.
[34] I therefore order that the issue of carriage be determined in advance of certification.
[35] Several of the parties referred to my previous decision in Sequencing Decision #1, in which I, again, held that the PGT could proceed with its application to strike in advance of a certification application.
[36] At paras. 13-14, I discussed the principles that will inform the court’s exercise of its discretion:
[13] The parties both acknowledge that there are cases going both ways in terms of whether a motion to strike should be permitted to precede the certification hearing. It is clear that the decision is a discretionary one and one that is highly dependent on the specific facts of the particular case: see for example Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2008 BCSC 1263 at paragraph 15.
[14] Both parties also point to the decision of Strathy J. in Cannon v. Funds for Canada Foundation, 2010 ONSC 146, where the court set out a number of factors relevant to the exercise of this discretion:
15 …
(a) whether the motion will dispose of the entire proceeding or will substantially narrow the issues to be determined;
(b) the likelihood of delays and costs associated with the motion;
(c) whether the outcome of the motion will promote settlement;
(d) whether the motion could give rise to interlocutory appeals and delays that would affect certification;
(e) the interests of economy and judicial efficiency; and
(f) generally, whether scheduling the motion in advance of certification would promote the "fair and efficient determination" of the proceeding …. .
[37] Cannon was cited with approval by Bauman C.J.S.C., as he then was, in Watson v. Bank of America Corporation, 2012 BCSC 146, [Watson], at para. 22. Chief Justice Bauman went on to say at paras. 30 and 33-35:
[30] Further, much, if not all, of the argument on the strike motion would simply duplicate the “cause of action” argument under s. 4(1)(a) of the CPA at the certification hearing. I agree with the plaintiff that in the circumstances of this case, there is a strong argument, based on encouraging judicial efficiency and cost containment (factor (e)), to resist effectively bifurcating the certification process by hiving off judicial treatment of one of the certification considerations to a pre-certification application.
…
[33] But here it is not a question of postponing the defendants’ strike motion until sometime after the certification decision, and thereby potentially significantly undermining any decision favouring certification. Here, the issues on the strike motion are integral to the s. 4(1)(a) cause of action consideration under the CPA. These issues will be fully aired at the certification hearing itself.
[34] These various considerations lead me to conclude generally (factor (f)) that scheduling the defendants’ motion in advance of the certification would not promote the “fair and efficient determination” of the proceeding.
[35] The defendants, of course, submit that the motion, if successful, would save them substantial costs in preparing for the certification application, if that was even pursued. Seeing the history of litigation proceeding by “installments”, I am far from convinced that any real cost savings would accrue in litigation of this scope and importance.
[38] The principal factor that led me in Sequencing Decision #1 to permit the PGT to proceed with its strike application in advance of certification was the fact that the plaintiffs had taken no steps to seek certification for a lengthy period of time following the filing of their notice of civil claim. Further, the notice of civil claim was significantly flawed and a certification application could not have proceeded on the basis of the pleadings as they then existed. Those factors are absent here as both Strohmaier and K.S. appear ready to proceed to certification.
[39] One factor that does distinguish the case at bar from other cases in which this issue has arisen, is the fact that the WCB is a defendant in only one of the two competing actions. WCB submits that this fact is relevant to the carriage issue in that, as part of the carriage analysis, the court will have to compare and contrast the Strohmaier and K.S. actions to determine which action is in the best interests of the class. The WCB submits that permitting its application to strike to proceed first will bring clarity to the merits of the two proceedings and will help simplify the comparative analysis.
[40] While that factor favours the WCB’s position, the other factors that inform the court’s discretion on this issue do not. Determination of the WCB motion will not dispose of the entire proceeding, is unlikely to promote settlement and will further delay the certification process. Most notably, as observed by Chief Justice Bauman in Watson, there is significant overlap between the issues that arise on the WCB’s application and the issues that the court will have to determine under s. 4(1)(a) of the CPA. I would add that the WCB’s application may in fact be unnecessary, at least for the foreseeable future, depending on the outcome of the carriage hearing.
[41] In my view, the interests of efficiency and judicial economy are not served by carving out the claim against the WCB and dealing with it in advance of certification. Rather, the most efficient approach will be to deal with the WCB’s application at the same time as certification.
[42] For the reasons set out above, a carriage motion will be held in advance of certification. Depending on the outcome of that motion, the WCB’s strike application, if necessary, will be heard at the same time as a certification application.
“Skolrood J.”