In the Court of Appeal of Alberta

Citation: A.H. v Alberta (Minister of Education),2020 ABCA 54

Date: 20200206
Docket: 1803-0296-AC
Registry: Edmonton

Between:

A.H., by his litigation representatives, Marcy Oakes

and Warren Henschel, Marcy Oakes and Warren Henschel

Appellants
(Plaintiffs)

- and -

Her Majesty the Queen in Right of Alberta as represented

by the Minister of Education

Respondent
(Defendant)

- and -

The Board of Trustees of Elk Island Public Schools Regional Division No. 14,
Mark Ligouri,Eileen Zimmerman,Tracy Muth,Sharon Jeske, Lindsay Jones,
Jacqui Holmes and Lonnie Hicks

Not Parties to the Appeal

(Defendants)

The Court:
The Honourable Mr. Justice Peter Costigan
The Honourable Mr. Justice Thomas Wakeling
The Honourable Madam Justice Dawn Pentelechuk

Memorandum of Judgment
Delivered from the Bench
 Appeal from the Order by
The Honourable Madam Justice J.E. Topolniski
Dated the 20th day of September, 2018
Filed on the 26th day of September, 2018
(Docket; 1701 12702)
 Memorandum of Judgment

Wakeling,J.A.(for the Court):

[1] We dismiss the appeal of an order striking out claims' under the Canadian Charter of
Rights and Freedoms'^ against the Minister of Education on the ground that it disclosed no
reasonable cause of action.^

[2] The statement of claim alleges that on September 23, 2015 the teacher-defendants placed
A.H., one of the plaintiffs and a special-needs student at Clover Bar Junior High School, in an
isolation room without the permission of A.H.'s parents. The appellants sued A.H.'s teachers, the
principal and assistant principal of Clover Bar Junior High School, The Board of Trustees of Elk
Island Public Schools Regional Division No. 14,the Board's superintendent and other employees
and the Minister. The claim alleges various wrongs including misfeasance in a public office and
breaches ofsections 7, 9,12 and 15 ofthe Charter. The claim does not allege that the Board failed
to establish any policy it was under a statutory obligation to produce or that the Minister failed to
impose standards for a Board policy.

[3] The appellants argue, with respect to the Charter claims, that the Minister, as one of the
defendants, was"endowed with responsibilities imposed by the Act^ and were required to exercise
their duties and responsibilities in compliance with the Charter

[4] No duty imposed by the School Act on the Minister is engaged in this case.^ The Minister
is under no obligation to monitor the day-to-day activities of employees of a school board and
ensure their compliance with school board policies.

[5] A school board is a corporation and has a separate legal status from that of Alberta
Education.

[6] This is a novel claim unsupported by precedent.

'Aha. Reg. 124/2010, r. 3.68(2)(b).

2 Canada Act 1982, c. 11, Schedule B (U.K.).
^ The appellants do not appeal against the part ofthe order dismissing the misfeasance in a public office claim.
^ Statement of Claim filed July 4,2017, Tn[ 67,73 & 77.
5 School Act, R.S.A. 2000, c. S-3, ss. 39, 39.1, 40(1),41, 42,43, 45.1(6)(e)&(8), 51(5), 58,62, 77, 78, 78.1, 79,94
6 124.
 Page: 2

[7] Nor do first principles or sound policy reasons justify holding the Minister responsible for
the acts of employees of The Board of Trustees of Elk Island Public Schools Regional Division
No. 14.

[8] Eldridge v. British Columbic^ does not provide a legal basis for this claim.

[9] Eldridge records the criteria that identifies state actors-"government" under section 32(1)
of the Charter.

[10] It held that statutory delegates, even if private entities, may be accountable for Charter
breaches.'

[11] The dilemma the Government ofBritish Columbia faced was that there was no clear policy
governing the availability of sign language interpretation services.

[12] That is not the problem the appellants face here. There is an Alberta Education time-out
policy and the appellants do not allege it is unconstitutional.

[13] There is no dispute about the status of The Board of Trustees of Elk Island Public Schools
Regional Division No. 14 and the Government of Alberta. Both are state actors under section 32
of the Charter.

[14] The question is whether the appellants have a reasonable cause of action against the
Minister for Charter breaches allegedly committed by another state actor and its employees for
acts over which the Minister has no control.

[15] While, on an application to strike, "it is not determinative that the law has not yet
recognized the particular claim, the claim must be arguable.

[16] There is no arguable cause of action here. The appellants have not identified any act on the
part ofthe Minister that breaches any duty the Minister owed them or was imposed on the Minister
by the SchoolAct. Ifthere is a cause ofaction here, it is against the school board and its employees.
The claim is still proceedings against those defendants.

[17] In light of our conclusion that Justice Topolniski did not err in finding no basis for
Ministerial liability, it follows that her decision to deny the appellants permission to amend their

®[1997]3S.C.R. 624.
'Id. 665.

® The Queen V. Imperial Tobacco Canada Ltd., 2011 SCC42,1I2I;[2011]3 S.C.R. 45,68.
 Page: 3

statement ofclaim was correct. Nothing would be gained by allowing the appellants leave to amend
a claim that is bound to fail.

[18] The appeal is dismissed.

[19] We commend Ms. Abbott for her excellent submissions.

Appeal heard on February 4, 2020

Memorandum filed at Edmonton, Alberta

this ^ day of February. 2020

Wakeling J.A.
S
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LV

FEB 2020

Of
4ppea\
 Page: 4

Appearances:

A.C. Abbott
for the Appellants

S.A. Bowes
for the Respondent
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KT

I. Moore COURTOFAPPEAL OF ALBERTA

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February 5, 2020

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Barrister & Solicitor Fix & Smith Law
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Public Prosecution Service of Canada
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Re: Regina(R) v. Due Hun TRAN(A)

Appeal No. 1903-0281A

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imt of Appeal^Edmonton

□ Date:

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