Alberta Court of King's Bench denies public funding for child welfare class action

The Alberta Court of King's Bench has denied an application for public funding in a proposed class action against the Crown concerning the history of child intervention services in Alberta.

The plaintiffs represent individuals affected by the child welfare system and who suffered personal injury while in the custody of Child Welfare. They sought advance costs to pursue a certification application and, if successful, to continue the litigation to trial. However, the court found that the plaintiffs did not meet the stringent criteria for public funding as established by the Supreme Court of Canada.

The plaintiffs' claim encompasses a broad range of allegations against Alberta Child Welfare, including failures to inform children about their rights to compensation for crimes, inadequacies in preparing care plans, and systemic neglect leading to the loss of cultural, familial, and educational opportunities for children in care. The defendant contested the application, arguing the plaintiffs had not exhausted all potential funding avenues and that the claims lacked the prima facie merit necessary for advance funding.

The Alberta Court of King’s Bench articulated the Supreme Court's criteria for awarding public funding: the plaintiff's inability to afford litigation, the prima facie merit of the claim, and the transcendent public importance of the issues raised. After a thorough review, the court concluded that the plaintiffs' application fell short of these benchmarks. Notably, the court questioned the comprehensive nature of the plaintiff's efforts to secure alternative funding, including inquiries into contingency legal representation and third-party financing.

Furthermore, the court expressed skepticism about the potential for the proposed class action to meet the certification requirements, given the diverse and complex nature of the claims stretching over decades of child welfare policy. It underscored previous rulings where similar claims were not certified due to the lack of common issues among proposed class members.

The decision also highlighted the court's concerns about the public importance of the litigation. While acknowledging the significance of holding the government accountable for the operation of child welfare services, the court determined that the plaintiff's claims did not reach the level of public importance that would justify an exception to the standard funding mechanisms.

In addition to the legal analysis, the court considered ongoing related litigations which cover similar grounds. The potential for overlap and the need for possible consolidation or carriage motions were cited as additional reasons for caution in awarding advance costs.

Ultimately, the court denied the plaintiffs’ claim, emphasizing that an advance costs award must be a “last resort” reserved for the “rare and exceptional case”.