IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20150319

Docket: S131396

Registry:
Vancouver

Between:

J.S., an infant,
by his Litigation Guardian,

The Public
Guardian and Trustee of British Columbia

Plaintiff

And

Her Majesty the
Queen in Right of the Province of British Columbia

(Ministry of
Children and Family Development)

Defendants

Before:
The Honourable Mr. Justice Greyell

Oral Reasons for Judgment

In
Chambers

[1]            
THE COURT: These reasons concern two applications, one by the
Public Guardian and Trustee of British Columbia (the "Public
Guardian") on behalf of an infant, J.S., and one by the Province
representing the Ministry of Children and Family Development.

[2]            
The main action concerns a claim brought by the Public Guardian on
behalf of J.S. for damages for negligence arising from an alleged assault to
the infant plaintiff, J.S., by the defendants J.W. and R.W. (also known as R.P.
but whom I will refer to in these reasons as R.W.) who were J.S.’s pending
adoptive parents. The alleged assault occurred January 5, 2011.

[3]            
The action was initially brought against J.W. and R.W. in whose care
J.S. was at the relevant time, the Ministry and various named social workers,
and other Ministry employees involved in the placing of children for adoption.

[4]            
The action is set for trial commencing March 30, 2015 – less than two
weeks from today.

[5]            
The Province has applied to adjourn the trial. The Province is prepared
to proceed with the damage assessment portion of the trial, but not with the
issue of liability. I note at this time, and will review shortly, the Province
has admitted the grounds of negligence asserted against it in the notice of
civil claim.

[6]            
The Public Guardian has applied for orders dismissing or discontinuing
the claim against J.W. and R.W. The Public Guardian opposes the Province’s
application to adjourn the trial, submitting J.S. would be severely prejudiced
by an adjournment.

Background

[7]            
In order to determine the issues raised by the parties, it is necessary
to first review the background of the proceedings and what I will describe as
the recent events.

[8]            
J.S. was born March 4, 2006, and is presently nine years old. As stated,
his interests are being represented in this lawsuit by the Public Guardian.

[9]            
The notice of civil claim was issued February 23, 2013. The claim
alleges J.S. sustained a serious brain injury resulting in permanent injuries. He
is described in the claim as having the following ongoing deficits: mild
cerebral palsy, including fine motor coordination deficits, gross motor
deficits, and difficulties with balance and coordination. He has intellectual
disability resulting in impaired cognitive, social, and emotional development. He
has epilepsy which is currently controlled. He has visual impairments and other
impairments arising from the alleged brain injury.

[10]        
The claim, as stated, alleges assault, negligence, and breach of
fiduciary duty against J.W. and R.W. and alleges the Province, the Ministry,
and the named defendants, apart from J.W. and R.W., and the Director failed in
their duty to protect J.S.’s safety and well-being, that they were negligent in
placing J.S. with J.W. and R.W., that they knew or ought to have known R.W. and
J.W. were unable or unfit to care for J.S., and that they failed to follow
proper Ministry procedures, standards, and protocols regarding the placement of
J.S. These are but a short list of the allegations of negligence and breach of
duty asserted against the Crown and named defendants apart from J.W. and R.W.

[11]        
The Province was served with the notice of civil claim and filed a
response on July 22, 2013. The defendants J.W. and R.W. were served March 21
and March 26, 2013 respectively.

[12]        
On August 14, 2013, Mr. Waldmann, who had then been retained by R.W. and
J.W., wrote counsel for the Public Guardian advising he had been retained. Included
in his letter, he wrote:

I will require several weeks to
review the material, meet with [his clients] and provide a Response to Civil Claim.

[13]        
Counsel for the Public Guardian responded on August 15, 2013, advising
Mr. Waldmann that no default proceedings had been taken against J.W. or
R.W. (Mr. Waldmann had asked for that information in his letter), that a
response had been filed to the claim by the Province, and that the trial date
had been set for 15 days to commence in Vancouver March 30 through April 15,
2015. That letter closed:

We also ask that you provide us
with your Response to Civil Claim and List of Documents as soon as possible.

[14]        
On September 5, 2014, a consent order (between the Public Guardian and
the Province) was entered in which the Province was granted leave to file an
amended response to civil claim in which the Province admitted liability for the
negligence alleged against it.. The plaintiff was granted leave to dismiss the
action against the various individually named defendant social workers and
placement officers and to strike out the claim for breach of fiduciary duty
against the Province.

[15]        
The amended notice of civil claim was filed October 2, 2014. The amended
claim was served on R.W. and J.W. October 16 and October 29 respectively.

[16]        
On February 3, 2015, R.W. and J.W. filed a response to civil claim. In a
portion of that response entitled "response to amended notice of civil
claim facts," R.W. and J.W. deny negligence, assert J.S.’s injuries were
the result of self-injury and extreme behaviour over a lengthy period of time
and that such self-harm activity was known to the Province and the Ministry. J.W.
and R.W. also allege the Saanich Police Department (“Saanich”) was negligent in
its investigation of the January 5, 2011, injury and assert Saanich against
them, contrary to s. 8 of the Human Rights Act, R.S.B.C. 1996, c. 210 because
of their First Nations ancestry.

[17]        
J.W. and R.W. also say the Public Guardian is acting outside its
jurisdiction, contrary to s. 7(2) of the Act, and that this action is an
abuse of process against them.

[18]        
On February 16, 2015, counsel for J.W. and R.W. commenced an action on
behalf of the minor children of R.W. and J.W. against the Province, the
Ministry, the Director of Child Welfare, Saanich, a physician who was the Director
of the Child Protection Service Unit of B.C. Children’s Hospital, and the same
social workers and adoption workers initially named in J.S.’s lawsuit and
against whom the consent dismissal order of September 30 had been entered. I
will call this the "Children’s Action".

[19]        
In the Children’s Action the plaintiffs say that the Public Guardian,
the Province, the social and aboriginal services workers were negligent in
placing J.S. in the care of J.W. and R.W. because of, inter alia, his
known history of self-harm, which they failed to address, and that these
workers wrongly removed these four children from J.W. and R.W.’s care. Again,
allegations are made against Saanich that it conducted a negligent
investigation concerning J.S.’s violent background, and allegations are made
against the physician, Dr. Hlady, that she was negligent and reckless and
breached her duty of care to the four children in issuing medical opinions that
they remain separated from their parents.

[20]        
Lastly, the defendants J.W. and R.W. have brought an application which
is scheduled to be heard on the first day of trial, that is, March 30, for
orders that the proceedings be transferred to the Victoria Registry and that
the trial take place in Victoria. They seek leave to “regularize” (to use
counsel’s term) the filing of the response to civil claim. They also seek leave
to issue third party notice. The application does not identify who the third
party or parties are, but from the content of the response I infer that they
are at least Saanich, Dr. Hlady, the Director, and other social workers and
adoption placement officers who were initially parties to the main action.

[21]        
On this motion, the defendants R.W. and J.W. submit the March 30 trial
should be adjourned. They also seek an order adjourning their application of
that date.

[22]        
As earlier stated, the Public Guardian and the Province are prepared to
proceed to trial March 30 on the assessment of J.S.’s damages. One of the
significant issues between the Public Guardian and the Province was and remains
the Public Guardian’s claim for the cost of J.S.’s future care, which I am
advised approaches or exceeds the maximum amount allowable under the law. Neither
the Province nor the Public Guardian are prepared to proceed to trial on the
issues raised by the defendants.

Discussion and Decision

[23]        
I will commence with the Public Guardian’s application to discontinue or,
in the alternative, dismiss the claims against J.W. and R.W.

[24]        
Although the Province has admitted liability, it does not consent to a
consent dismissal order being entered. The Province argues it wants to keep its
options open to proceed against J.W. and R.W. to pursue a claim under s. 4 of
the Negligence Act, R.S.B.C. 1996, c. 333.

[25]        
Rule 9-8(2) provides the court may discontinue an action in whole or
part against a defendant after a notice of trial has been filed in an action
with the consent of all parties or by leave of the court. In this case, of
course, a notice of trial has been issued. The parties do not consent, and
hence the question is whether the court should grant leave to discontinue.

[26]        
In my view, the law is clear as to when the court should grant leave to
discontinue. A plaintiff, as dominus litis, is entitled to control his
or her own action, including the right to discontinue that action against
certain defendants unless there are special circumstances or, as described in
one case, very unusual circumstances mitigating against such leave: see Aiton
v. Fisher, 2007 BCSC 1468 at paras. 19 through 23, and Schwartz et al.
v. Riverside Forest Products Limited et al., 2004 BCSC 1548.

[27]        
In determining whether there are special circumstances, the court should
consider the rights and interests of all parties to the action.

[28]        
In Liquor Barn Income Fund v. Mather, 2011 BCSC 618 at paras. 7
to 20, Madam Justice Fenlon reviewed the above principles and in that case,
concluded it was not a special circumstance justifying refusal to grant leave
to discontinue against some but not all defendants, that the continuing
defendant might have to pursue a third party claim against a departing
defendant. The facts of that case are somewhat similar to what is being
requested by counsel for the Public Guardian in the matter before me.

[29]        
In this case, if the presently scheduled damage assessment trial does
not proceed on March 30 and is adjourned for a determination of both damages and
liability with the spectre of adding third parties and joining the issues
raised in the recently filed Children’s Action, the trial will not proceed for
likely two to three years hence.

[30]        
As stated, one of the major issues between the Province and the Public
Guardian concerns the cost of future care of J.S. As I understand it, there are
several related aspects to this issue:  the amount and the quality of future
care. A determination of these issues will involve when such future care will
commence and in what manner it will continue. A number of medical experts have
provided opinions that a delay in the determination of these issues will have a
seriously detrimental effect on the successful treatment and ultimate prognosis
for J.S., as well as resulting in significant extra cost.

[31]        
The application response of the Public Guardian sets out extracts from
these opinions. I refer to but several.

[32]        
Dr. Purtzki, a pediatric physiatrist, writes:

J.S. is a now 9-year-old boy who suffered a severe
non-accidental brain injury at the age of almost 5 years. As a result, he has
been left with severe physical and cognitive impairments.

As outlined in my report dated
January 9, 2015, JS should be supported by a variety of therapeutic
interventions, especially during the remainder of his childhood and adolescent
development. The timeliness of these interventions is important for the
following reasons:

and

It is important to provide Joshua with strong emotional
supports and communication tools, starting now, to deal with these challenges
ahead.

[I]t will take a lot of intensive,
one to one practice to learn basics of communication and everyday living. Without
additional support Joshua will likely not progress at all in his development; rather
he will stagnate or regress.

She goes on:

In conclusion, time is of the essence during crucial
developmental years for a child with a severe neurocognitive impairment. Delay
in treatment of even 2 years is a 20% reduction in available time between now
and age 19 when crucial brain development occurs. It is not necessarily
possible to "make up" this time since the brain undergoes unique
restructuring and maturation processes during these remaining 10 years.

I therefore strongly support for
therapy to start as soon as possible for this child.

[33]        
Ms. Janice Landy, a rehabilitation and life-care specialist, has filed a
report which includes the following:

… J.S. is in need of a multi-disciplinary
team of professionals working in a proactive, preventative manner to foster his
development. A further delay in the provision of necessary recommended services
and direct support may result in deterioration in his behaviour and an eventual
increase in costs.

[34]        
Moray McLean, an occupational therapist, wrote:

In my opinion an adjournment
would have a significant negative impact on J.S.’s developmental trajectory and
outcomes.

[35]        
Dr. Douglas Cohen, a neuropsychologist:

Without proper treatment at the
right stage both now and in the future it is not just the case that J.S.’s
development will be stalled, but rather that he may very well irreparably miss
those opportunities to reach his maximum potential.

[36]        
Dr. Cohen wrote, in a section of his report entitled "cost aspects
of care":

There is no way to recover lost
past care in the common law. If there is a two to three year adjournment, the Plaintiff
will lose between [$478,800] to [$530,000] … on the Plaintiff’s future care
report … or approximately $180,000.00 on the Defendant’s future care report in
lost care from his damage award This will never be recovered.

[37]        
As I have said, the defendant Province has admitted liability and is
prepared to proceed with the damage assessment trial. The Province’s interest
is to maintain its right to commence third party proceedings against J.W. and
R.W.

[38]        
I turn to the defendants R.W. and J.W.

[39]        
In my view, these defendants have not established there are special
circumstances such that the court should refuse to grant leave to the plaintiff
to discontinue the action against them. In reaching this conclusion, I have
taken into account the following factors.

[40]        
J.W. and R.W.’s counsel has been aware of the trial date since August
15, 2013. At that time, he was requested to file his clients’ response to civil
claim and list of documents as soon as possible. Notwithstanding the response
to civil claim was not filed until February 3, 2015, some two months before the
trial is scheduled to commence.

[41]        
I pause to note that nothing I say in these reasons is to be taken as "validating"
the response filed by these defendants. That issue was not before me.

[42]        
Applying the principles set out in Aiton and reaffirmed in Liquor
Barn, given that the Public Guardian and the Province are prepared to
proceed on March 30, the substantial prejudice arising to J.S. from an
adjournment, the Province’s admission of liability,  the very late involvement
of J.W. and R.W. in this litigation and the complexity of the issues raised in
the response they have filed and in the Children’s lawsuit, I grant leave to
the Public Guardian to discontinue its claims against R.W. and J.W. and to
amend the notice of civil claim by removing these parties from the style of
cause.

[43]        
I order a copy of these reasons to be transcribed on an expedited basis
and placed in the court file so they are available to the trial judge.

[44]        
It follows from this that the Crown’s application to adjourn the trial
is dismissed. The trial will proceed March 30 as an assessment of damages. The
notice of discontinuance will not prejudice the Crown’s right, in the ordinary
course, should it so desire, to bring third party proceedings against whomever
it chooses to bring those proceedings. Any normal defences such as statutory
limitation period will apply in the ordinary course. That is an issue that has
not been argued before me.

[45]        
R.W. and J.W. have sought two orders, one for costs and, second, that a
term be imposed that no further action be brought against them on the same or
substantially the same cause of action. I decline to grant either order for
several reasons.

[46]        
First, these defendants’ response has yet to be "validated,"
so their status in these proceedings is unclear.

[47]        
Second, they have not been engaged in these proceedings until very
lately, and that late engagement has been the effective cause of this
application being made.

[48]        
Finally, to grant the second order sought would effectively bar the
Province from bringing third party proceedings which, as I have indicated, it
may wish and may be entitled to do.

[49]        
Accordingly, it would not be appropriate in this case to make the orders
as requested.

[50]        
MR. GIBBENS: Costs with regard to this application, My Lord?

[51]        
THE COURT: It is my view that, without receiving submissions, costs
should be costs in the cause.

“Greyell
J.”