Judge looks at papers

A proposed class action arguing that the government of British Columbia failed children in the province’s care by not opening RESPs or RDSPs for them has passed a hurdle on the way to certification.

The Supreme Court of B.C. has ruled that they may have a viable claim.

The Elizabeth Fry Society of Greater Vancouver along with a former ward of the state, Delilah Gibot, are the plaintiffs in the proposed class action against the province’s Public Guardian and Trustee (PGT), alleging that children in provincial care lost out on government contributions that would have been made to RESPs and RDSPs as well as the investment income they would have earned.

The plaintiffs also allege that “the PGT’s failings are part of a pattern of neglect towards children in government care in B.C., and the alleged breaches are part of an ongoing failure to properly transition minors out of government care and into adulthood with the necessary supports.”

For its part, the PGT argued that the proposed claims are bound to fail, and don’t meet the test for certification.

However, the B.C. Supreme Court sided with the plaintiffs, ruling that the claims “met the low standard that applies to determining whether the pleadings disclose a cause of action.”

It’s not obvious that the claims of negligence and breach of fiduciary duty are bound to fail, it said.

The court did strike one element of the action, however, ruling that a claim that the PGT was obliged to ascertain whether children were eligible for DTC status cannot succeed. It granted relief to allow the plaintiffs to amend the pleading to comply with that decision.

“Because of the impact of my conclusion on other requirements for certification, I also grant the parties leave to make further submissions, following amendments to the pleading rather than deciding on those requirements at this stage,” it said.