Executive Summary: Key Legal and Evidentiary Issues

• Defendants challenged the admissibility of five affidavits and two expert reports before the certification hearing.

• Affidavit content was scrutinized for hearsay, improper lay opinion, legal conclusions, and argumentative language.

• Two expert reports were struck for failing to meet standards of admissibility, including relevance and necessity.

• Some affidavit evidence was struck out as clearly inadmissible; however, much of it was left to be ruled upon at certification.

• The court emphasized the low evidentiary threshold for certification, applying a "some basis in fact" standard.

• Admissibility objections must meet a "clearly inadmissible" threshold to be resolved before a certification hearing.

Facts and outcome of the case

Background and parties

The case arises out of a proposed class action brought against the Ministry of Child and Family Development (MCFD) and the Province of British Columbia. The plaintiffs, Catherine Stubbington, Rena Knight, and N.S. (a minor represented by the Public Guardian and Trustee of British Columbia), allege systemic negligence by the MCFD dating back to 1974. Specifically, they claim the Province failed to provide children in care with what they refer to as the "Basic Rights of Childhood" (BRC), exposing them to "Adverse Childhood Experiences" (ACEs) and resulting in serious harm.

The action includes allegations of negligence, breach of fiduciary duty, and breach of section 7 of the Canadian Charter of Rights and Freedoms. The plaintiffs seek to certify the action as a class proceeding on behalf of all B.C. residents under 19 whose BRC were not met while in MCFD care and who sustained harm as a result.

Procedural context and motion

Before the certification hearing, the defendants brought a preliminary application to strike portions of the plaintiffs’ affidavit and expert evidence. They argued that certain paragraphs were inadmissible as hearsay, improper lay opinion, or legal argument, and they challenged the admissibility of two expert reports authored by Dr. Richard Sullivan and Dr. Janet Douglas.

Evidentiary objections and court's approach

Justice Stephens considered the scope and appropriateness of determining evidentiary objections at the pre-certification stage. The court emphasized that, although there is no automatic right to a pre-certification ruling on admissibility, it does have discretion to address such issues if the evidence is "clearly inadmissible."

Applying this standard, the judge conducted a paragraph-by-paragraph analysis. He found that while some affidavit portions—especially those expressing speculative opinion or attributing legal conclusions—should be struck, much of the challenged evidence was not clearly inadmissible and should instead be addressed during the certification hearing itself.

Justice Stephens underscored the purpose of certification proceedings, which require only "some basis in fact" rather than a full evidentiary trial. He noted that some hearsay or generalized observations could be admissible if used to support procedural aspects of certification, such as demonstrating commonality or preferability.

Expert reports struck

The court struck both expert reports outright. The Sullivan and Douglas reports were found to largely restate allegations from media reports, public inquiries, and literature without providing admissible expert analysis. The court found they lacked the necessary hallmarks of admissible expert evidence, including relevance, necessity, proper qualification, and a clear basis of assumptions and methodology.

Additionally, the reports offered conclusions on the ultimate issues before the court—such as the systemic failure of the MCFD and the government’s knowledge of such failures—which the court considered inappropriate for expert testimony.

Conclusion and current status

The ruling represents a partial victory for both sides. While the defendants succeeded in excluding both expert reports and a number of affidavit paragraphs, the plaintiffs retained a substantial portion of their evidentiary record for use at certification. The matter of certification has not yet been decided and will proceed with the remaining evidentiary material.

Justice Stephens concluded that resolving all admissibility questions prematurely could undermine the access to justice objectives inherent in class proceedings. Therefore, only clearly inadmissible evidence was struck out at this stage, with the remainder deferred to the certification hearing.