In J.P. v. B.G., Gudmundseth Mickelson LLP successfully fought to overturn a court decision in which a social worker was found to have acted in abuse of his office. The Court of Appeal agreed with our lawyers that there was no evidence to support the findings made against the social worker, and that the social worker had been treated unfairly by the trial judge who made serious findings against the social worker despite the fact that he was not named as a defendant in the action. The case garnered notoriety because it flowed out of a highly publicized family law proceeding, and because of the damning nature of the findings made against the Ministry and its lead social worker. Those findings have now been set aside by the British Columbia Court of Appeal which completely vindicated the firm’s client.
COURT: British Columbia Court of Appeal
COUNSEL: Andrew D. Gay, Q.C. and Allan L. Doolittle
Vancouver Sun: Appeal court orders new trial in sensational family case
THE FACTS AND HISTORY OF THE CASE:
The trial judge heard three interconnected actions: a family proceeding; a child protection proceeding (abandoned mid-trial); and a civil proceeding alleging various causes of action in relation to the apprehension and care of the parties’ children while under the care of the Director of Child, Family and Community Services. The family trial lasted 91 days. The civil trial was heard over 146 days, with reasons for judgment of 341 pages. In the civil trial, the trial judge found the Province liable to the mother, on behalf of the children, for negligence and breach of fiduciary duty. The trial judge also found the lead social worker had committed misfeasance in public office, despite the fact he was not named as a defendant in the proceeding. Liability was based on the trial judge’s finding that the lead social worker intentionally chose not to discharge his statutory duties, to act in the best interests of the children, and because of his animus toward the mother.
The appeal was heard over five days in November 2016. A unanimous Court of Appeal ordered a new family trial on the basis that a key expert witness relied on by the trial judge had perpetrated a fraud on the Court by claiming she had credentials which she did not have. Further, the Court of Appeal dismissed the civil claim entirely. The Court of Appeal found the finding of misfeasance in public office against the lead social worker was the product of procedural unfairness and that the findings of wrongdoing against him were without evidentiary foundation or based on misapprehensions of the evidence on critical points, or further, were coloured by the trial judge’s acceptance of the mother’s speculative conspiracy narrative.
WHY IS THIS CASE IMPORTANT?
This case highlights the importance of procedural safeguards vital to trial fairness. These include the importance of the “gatekeeping” function for expert evidence, and proper pleadings so that each defendant has notice of the case against them. This case was also important because, as the Court of Appeal noted, a “career was on the line”. The allegations and findings made against the lead social worker in the lower court were terribly damning, but they were based on a misconstrual of the evidence. In such cases the value of a vigorous and informed defence cannot be understated.
FURTHER INQUIRIES If you have further inquiries about this or other public law, complex commercial, or regulatory matters, please contact Andrew D. Gay, Q.C.