BC Defense Trociuk

No. 5045944

Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

BETWEEN

DARRELL WAYNE TROCIUK

PLAINTIFF

AND

HER MAJESTY THE QUEEN

IN RIGHT OF THE PROVINCE

OF BRITISH COLUMBIA

DEFENDANT

STATEMENT OF DEFENCE

1. Unless otherwise stated herein to be admitted or not to be admitted, the defendant

Her Majesty the Queen in right of. the Province of British Columbia (“the Province”) denies each and every allegation contained in the Statement of Claim, and puts the plaintiff to the strict proof thereof

2. The Province has no knowledge of the facts alleged in paragraphs 1, 4, 8, 21, and

22 of the Statement of Claim, and the Province does not admit the allegations contained

in these paragraphs.

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3. The Province admits the allegation in paragraph 2 of the Statement of Claim that the Province is responsible for the collection and registration of data pursuant to the provisions of the Vital Statistics Act, R.S.B.C. 1996, c. 479, as amended.

4. In further answer to paragraph 2 of the Statement of Claim, the Province pleads that the enactment of legislation is within the purview of the Legislative Assembly as the legislative branch of govermnent, and not the function of the executive branch. The Province pleads and relies upon section 17 of the Constitution Act, R.S.B.C. 1996, c. 66. To the extent that the plaintiffs claim against the Province arises from the enactment of legislation, the Province pleads that the plaintiffs claim is without basis in law, is improper, and fails to disclose a reasonable cause of action in that the executive branch of government cannot be liable for the enactment of legislation by the Legislative Assembly.

5. In further answer to paragraph 2 of the Statement of Claim, the Province pleads that the provision of funding for legal aid in the Province of British Columbia is not undertaken or controlled by the Province, but that funding for legal aid is provided by the Legal Services Society, an independent society continued under the Legal Services Society Act, S.B.C. 2002, c. 30. The Province denies that it is responsible for decisions with respect to the funding of legal services in any particular instance or case.

6.In answer to the plaintiff’s allegations that the Province funded the legal costs of

Reni Ernst in previous proceedings, contained in paragraphs 10, 14, 16, 19, 26, 27(iii),

27(iv), 28(iii)(b), 29, 30, 32, and 33 and otherwise, the Province denies that the Province

is responsible for the decision to provide funding at any level to Reni Ernst. The

Province pleads that decisions with respect to the funding of Reni Ernst by the Legal

Services Society were decisions made by the Legal Services Society independently of the

Province, and the Province has no liability for those decisions as alleged or at all. The

Province also pleads that the Legal Services Society is an independent society, and the

Province denies that it is liable for the acts of the Legal Services Society.

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7. In answer to the whole of the plaintiffs claim, the Province pleads that the Legislative Assembly enacted amendments to the Vital Statistics Act specifically to address the issues raised in the decision of the Supreme Court of Canada in Trociulc it British Columbia (Attorney General), [2003] 1 S.C.R. 835 (the “Decision”). Those amendments were embodied in the Vital Statistics Amendment Act, 2004, S.B.C. 2004 c. 55, sections 3 and 4, and came into force on June 4, 2004 pursuant to B.C. Reg 246/04 (the “Amendments”). Furthermore, the Province pleads that the Decision did not give rise to a duty of care on the part of the Province to the plaintiff, to do any of the things alleged by the plaintiff.

8. In further answer to the entire claim of the plaintiff, the Province pleads that at all times the agents, officers, servants and employees of the Province at alI times acted fairly, in good faith and in accordance with the law. The Province specifically denies that the Province or any of the agents, officers, servants or employees of the Province at any time acted with malice, bad faith or for an improper purpose in relation to the plaintiff, or that the Province or any of the agents, officers, servants and employees of the Province at any time discriminated against the plaintiff.

9. The Province denies that the Province owed the plaintiff a fiduciary duty as alleged or at all, in relation to the matters pleaded in the Statement of Claim. In particular, the Province denies that the plaintiff was treated in a manner differently than any other person who is subject to the laws of the Province of British Columbia. The Province also pleads that the plaintiff was not in a position of vulnerability in relation to the exercise of a power by the Province. Furthermore, the Province pleads that the Province and the agents, officers, servants and employees of the Province at alI times treated the plaintiff fairly, in good faith, and in accordance with the law of British Columbia.

10. In answer to the allegations in paragraph 24 of the Statement of Claim, the

Province denies that it owed the plaintiff a duty to advise him of the intentions of the

Legislative Assembly of the Province of British Columbia with respect to proposed

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legislation. The Province also denies that the Province owed the plaintiff a duty to notify him of changes to legislation, as alleged or at all. Finally, the Province denies that it owed a duty of care to the plaintiff to assist him in altering the surnames of the children of the plaintiff and Reni Ernst as alleged or at all, or that the Province owed the plaintiff a duty of care to assist him in being registered on the birth registration of these children.

11. In further answer to the whole of the Statement of Claim, the Province pleads that the plaintiff is able, should he so desire, to apply to be registered on the birth registration of the children of the plaintiff and Reni Ernst, and was able prior to the Amendments, to be so registered. The Province pleads that in fact, the plaintiff has refused to take any steps to be registered on the registration of the children of Reni Ernst and the plaintiff, and has in fact actually refused to be so registered, even though that registration was available to him.

12. In further answer to the whole of the Statement of Claim, the Province denies that the Province has provided funding to Reni Ernst as alleged or at all, and the Province denies all liability as a result of the allegations in the plaintiffs claim that the Province improperly provided funding to Reni Ernst.

13. In further answer to the plaintiff’s claim, the Province pleads that the Amendments were made to import language into the Vital Statistics Act to make it consistent with other provincial legislation which deals with changes of name. In particular, the Province pleads that the language imported into the Vital Statistics Act by the Amendments is consistent with previous legislation, being the provisions of s. 36 of the Adoption Act, R.S.B.C. 1996, c. 5.

14. In further answer to the whole of the Statement of Claim, the Province denies that the Province or the agents, officers, servants or employees of the Province were negligent as alleged in the Statement of Claim, or at all. The Province pleads that the acts of the Province's s agents, officers, servants and employees of the Province were at alI times reasonable and proper, and were done lawfully and in good faith.

15. The Province denies that the plaintiff has suffered loss or damage as alleged in paragraphs 34 and 35 of the Statement of Claim, or at all.

16. In further answer to the plaintiffs claim, the Province pleads that the plaintiff failed to mitigate any loss or damage, by failing to take any, or any reasonable, steps to be registered on the registration of birth of the children of the plaintiff and Reni Ernst.

17. The Province pleads that the Statement of Claim improperly includes claims for specified amounts for general damages, aggravated damages and punitive damages.

Wherefore the defendant Her Majesty the Queen in right of the Province of British Columbia prays that the plaintiffs claim be dismissed with costs.

Dated December 17, 2004.

Graham J. Underwood, Solicitor for the Defendant, Her Majesty the Queen in right of the Province of British Columbia

This STATEMENT OF DEFENCE is given by Graham J. Underwood, Banister and Solicitor, whose place of business and address for service is Ministry of Attorney General, Legal Services Branch, 1001 Douglas Street, Floor, P0 BOX 9280, STN PROV GOVT. Victoria, BC V8W 9J7 (ph. #356-8866; fax # 953-4348)