Legislation often imposes a duty on the government, and the government’s alleged failure to comply with such a duty often leads to legal proceedings. However, what has yet to be determined is whether the government may have an obligation to sue itself for breaching its own statutory duty. In its September 7, 2017 decision regarding the appeal of a certification order, LC v Alberta (2017) (the “Appellate Decision”), the Alberta Court of Appeal hinted that this question may be answered when this class action goes to trial. If the trial court finds that the Government of Alberta (the “Provincial Government”) must sue itself as part of its fiduciary duty, this may become a new avenue for litigation in not only class actions, but other proceedings as well.
Certifying the LC v Alberta Class Proceeding
This class proceeding stems from the alleged failure of the Provincial Government to prepare and file care or service plans for apprehended children who had become the subject of a temporary guardianship order, within the timelines required by legislation. Following a multitude of case management decisions and rulings, the action was certified pursuant to the Class Proceedings Act by Justice Graesser, the case management judge, in LC v Alberta (2016) (the “Certification Decision”).
The representative plaintiffs, LC and her daughter EMP, pleaded several causes of action, one of which alleged that her Majesty the Queen in Right of Alberta (“Alberta”) had a duty to bring a suit against itself for breaching its statutory duties. In its defense, Alberta argued that “no such duty…has ever been recognized by common law or imposed by statute. This claim has no chance of succeeding and ought to be struck.” Justice Graesser found that although the plaintiffs’ argument was novel, Alberta’s failure to sue itself appeared to be a reasonable claim, especially in the context of the government’s fiduciary duty to vulnerable children.
In the Appellate Decision, Alberta challenged this finding, arguing that Alberta’s duty to sue itself was not a legal cause of action in the child protection context. Without deciding whether the Provincial Government has a duty to sue itself, Justice Berger, writing for the Court of Appeal, found that the plaintiffs’ pleadings asserted a general fiduciary obligation, of which the duty to sue oneself was but one example. He went on to explain that the scope of the Provincial Government’s fiduciary duty was a matter to be determined at trial.
It is not unprecedented in Alberta for the Provincial Government to sue itself. Just last year, the Provincial Government filed an application to strike down a clause in the Power Purchase Arrangements introduced by the former Provincial Government in 2000. In that case, the Provincial Government elected to take legal action against the former Provincial Government, whereas LC v Alberta goes one step further, in asking the court to find that the Provincial Government has a positive obligation, not merely the option, to sue itself for breach of a statutory or fiduciary duty. If the trial court establishes that such an obligation exists, this may emerge as a trend in future litigation proceedings, and may fundamentally impact the way in which class actions are conducted in Alberta.
 Ibid at para 2.
 SA 2003, c C-16.5.
 Certification Decision, supra note 1 at para 93.
 Ibid at para 165.
 Ibid at para 166.
 Appellate Decision, supra note 2 at para 18.
 Ibid at para 20.
 The Power Group at McCarthy Tétrault LLP discussed litigation regarding the Power Purchase Arrangements in Canadian Power – Key Developments in 2016 – Trends to Watch for in 2017.