Course:Law3020/2014WT1/Group O

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Alberta v Elder Advocates of Alberta Society

Flag of Alberta [1]


This Wiki page will provide a general overview of the case of Alberta v Elder Advocates of Alberta Society. The Case Brief will follow and at the bottom of the page you will find links to the pages that relate the facts of this case to different legal theorists.


Alberta is responsible for the cost of medical care required by the residents of nursing homes and auxiliary hospitals, but patients may be asked to contribute to the costs of their housing and meals through the payment of accommodation charges.

  • Nursing homes, or LTCFs, are regulated by the Nursing Homes Act and receive funding from both the Alberta government, by way of the RHAs, and the nursing home residents themselves. Nursing home operations — which are run by either private operators or the RHAs, not by the Province — may impose on residents an accommodation charge for housing and meals, not to exceed a maximum daily amount prescribed by regulation (Para 10)

Alberta long-term care facilities allege that the government artificially inflated accommodation charges to subsidize the cost of medical expenses

  • August 1st, 2003 – Alberta’s Minister of Health and Wellness, raised the maximum accommodation charge payable by residents of the province’s nursing homes and auxiliary hospitals (para 14) despite knowledge of “past practice” on part of LTCF’s.

Have brought a claim against Alberta and the 9 Regional Health Authorities who administered/operated the health care regime.

  • The class has filed a statement of claim in which it alleges that the government’s conduct constitutes a breach of fiduciary duty, negligence, bad faith in the exercise of discretion and/or unjust enrichment (para 2)
  • The class also brings an equality claim under s. 15 of the Canadian Charter of Rights and Freedoms (para 2)


  1. Whether the disputed claims disclose a cause of action, assuming the facts pleaded to be true?
  2. Whether principles of fiduciary duty applicable to private actors apply to governments?
  3. Whether government owed fiduciary duty to patients?
  4. Whether government breached s.15(1) (equality) of the Charter, were negligent, or acted in bad faith?


Fiduciary duty (new category): A claimant must show that (Para 30-34; 36):

  1. The alleged fiduciary has undertaken to act in the best interests of the alleged beneficiary or beneficiaries;
  2. A defined person or class of persons is vulnerable to a fiduciary’s control; and
  3. A legal interest or a substantial practical interest of the beneficiary or beneficiaries stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control.

Unjust Enrichment(per Garland v Consumers’ Gas Co., 2004 SCC) – Para 82. The Cause of action has three elements:

  1. An enrichment of the defendant;
  2. A corresponding deprivation of the plaintiff; and
  3. An absence of juristic reason for the enrichment


Governments will only owe fiduciary duties in very limited circumstances due to their preoccupation with the interests of all citizens. Interest affected must be a specific private law interest to which the person has a pre-existing distinct and complete legal entitlement. The degree of control must be equivalent or analogous to direct administration of that interest.

Fiduciary Duty:

  1. The fiduciary has scope for the exercise of some discretion or power;
  2. The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests; and
  3. The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power.

Vulnerability is insufficient to ground a duty.


The pleas of breach of fiduciary duty, negligence and bad faith in the exercise of discretion are struck from the statement of claim. It follows that the certification of the class is upheld, and the unjust enrichment claim may proceed to trial, together with the claim for discrimination under s. 15(1) of the Charter. (Para 5)

The Links Below Lead to the Different Theoretical Treatments

Legal Perspectives Philosophers
Natural Law Thomas Aquinas
Legal Positivism John Austin, HLA Hart, Jeremy Bentham, and Joseph Raz
Separation Theory HLA Hart and Ron Fuller
System of Rights Ronald Dworkin
Liberty and Paternalism John Stuart Mill and Gerald Dworkin
Law and Economics Susan Dimock
Feminist Jurisprudence Patricia Smith and Catharine Mackinnon
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