Anderson et al. v. Canada (Attorney General) et al., (2015) 374 Nfld. & P.E.I.R. 141 (NLTD(G))

• Judge: Stack, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: December 14, 2015
• Jurisdiction: Newfoundland and Labrador
• Citations: (2015), 374 Nfld. & P.E.I.R. 141 (NLTD(G))

Anderson v. Can. (A.G.) (2015), 374 Nfld. & P.E.I.R. 141 (NLTD(G));

    1164 A.P.R. 141

MLB headnote and full text

Temp. Cite: [2015] Nfld. & P.E.I.R. TBEd. DE.059

Carol Anderson, Allen Webber and Joyce Webber (plaintiffs) v. The Attorney General of Canada (defendant) and Her Majesty in Right of Newfoundland and Labrador (first third party)

(discontinued) and The International Grenfell Association (second third party) (discontinued)

(2007 01T 4955 CCP)

Toby Obed, William Adams and Martha Blake (plaintiffs) v. The Attorney General of Canada (defendant) and Her Majesty in Right of Newfoundland and Labrador (first third party)

(discontinued) and The International Grenfell Association (second third party) (discontinued)

(2007 01T 5423 CCP)

Rosina Holwell and Rex Holwell (plaintiffs) v. The Attorney General of Canada (defendant) and Her Majesty in Right of Newfoundland and Labrador (first third party)

(discontinued) and The International Grenfell Association (second third party) (discontinued)

(2008 01T 0844 CCP)

Sarah Asivak and James Asivak (plaintiffs) v. The Attorney General of Canada (defendant) and Her Majesty in Right of Newfoundland and Labrador (first third party)

(discontinued) and the Moravian Church in Newfoundland and Labrador (second third party) (discontinued) and The Moravian Union (Incorporated) (third third party) (discontinued)

(2008 01T 0845 CCP)

Edgar Lucy and Dominic Dickman (plaintiffs) v. The Attorney General of Canada (defendant) and Her Majesty in Right of Newfoundland and Labrador (first third party)

(discontinued) and The Moravian Church in Newfoundland and Labrador (second third party) (discontinued) and The Moravian Union (Incorporated) (third third party) (discontinued)

(200801T 0846 CCP; 2015 NLTD(G) 186)

Indexed As: Anderson et al. v. Canada (Attorney General) et al.

Newfoundland and Labrador Supreme Court

Trial Division (General)

Stack, J.

December 16, 2015.

Summary:

Class members in five class actions attended schools, dormitories or orphanages (collectively the "Facilities") from 1949 until 1980 in what was now the Province of Newfoundland and Labrador. The representative plaintiffs sued the Attorney General of Canada claiming that it breached a fiduciary duty owed to the students of the Facilities to protect them from actionable physical or mental harm. In addition, the plaintiffs were seeking an award of aggregate damages pursuant to s. 29 of the Class Actions Act. The plaintiffs sought to have Professor Kimberley qualified to provide expert witness testimony in the following areas: 1) the effects of institutionalization on children's social functioning and development; and 2) how exposure to the above, or threats thereof, affected a child's social functioning. Professor Kimberley had prepared a report titled An Analysis of Likely Common Impacts of Being Placed in, and Residing in, What Where [sic] Identified as "Residential Schools" or "Indian Residential Schools" - Primarily Designed for Aboriginal Children and Youth (the "Report"). The plaintiffs asserted that Dr. Kimberley's evidence spoke directly to the availability of aggregate damages.

The Newfoundland and Labrador Supreme Court, Trial Division (General), was satisfied that the proposed evidence of Dr. Kimberley was relevant and necessary. However, the court found that the Report was based on science used for a novel purpose and that the plaintiffs had not met the burden on them of establishing the reliability of the underlying science for that purpose. As a result, the Report was not admissible and Dr. Kimberley could not provide opinion evidence as requested by the plaintiffs.

Editor's Note: There are several other reported decisions in these class actions.

Evidence - Topic 7010.1

Opinion evidence - Expert evidence - General - Evidence of new medical or scientific doctrines - [See Evidence - Topic 7012 ].

Evidence - Topic 7012

Opinion evidence - Expert evidence - General - Basis for opinion - Class members in five class actions attended schools, dormitories or orphanages (collectively the "Facilities") from 1949 until 1980 in what was now the Province of Newfoundland and Labrador - The representative plaintiffs sued the Attorney General of Canada claiming that it breached a fiduciary duty owed to the students of the Facilities to protect them from actionable physical or mental harm - In addition, the plaintiffs were seeking an award of aggregate damages pursuant to s. 29 of the Class Actions Act - The plaintiffs sought to have Professor Kimberley qualified to provide expert witness testimony in the following areas: 1) the effects of institutionalization on children's social functioning and development; and 2) how exposure to the above, or threats thereof, affected a child's social functioning - Professor Kimberley had prepared a report titled An Analysis of Likely Common Impacts of Being Placed in, and Residing in, What Where [sic] Identified as "Residential Schools" or "Indian Residential Schools" - Primarily Designed for Aboriginal Children and Youth (the "Report") - The plaintiffs asserted that Dr. Kimberley's evidence spoke directly to the availability of aggregate damages - The Newfoundland and Labrador Supreme Court, Trial Division (General), was satisfied that the proposed evidence of Dr. Kimberley was relevant and necessary - However, the court found that the Report was based on science used for a novel purpose and that the plaintiffs had not met the burden on them of establishing the reliability of the underlying science for that purpose - As a result, the Report was not admissible and Dr. Kimberley could not provide opinion evidence as requested by the plaintiffs.

Evidence - Topic 7075

Opinion evidence - Reports by experts - Admission of (incl. objection to) - [See Evidence - Topic 7012 ].

Evidence - Topic 7154

Opinion evidence - Prohibited opinions - Re basic or ultimate issue to be decided - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated that the "ultimate issue" prohibition was now regarded as having been virtually abandoned or rejected - There was no longer an absolute rule barring such testimony - The trier of fact had the power to accept or reject the evidence and courts, especially when sitting without juries, could independently rule upon matters within or without the experience and knowledge of the court without being improperly swayed by the opinions of experts - Instead of an absolute "ultimate issue" prohibition, the criteria of relevance and necessity were strictly applied (R. v. Mohan (S.C.C.) - See paragraphs 16 to 17.

Cases Noticed:

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 114 D.L.R.(4th) 419, appld. [para. 4].

Abbott and Haliburton Co. Ltd. et al. v. WBLI Chartered Accountants (2015), 470 N.R. 324; 360 N.S.R.(2d) 1; 1135 A.P.R. 1; 2015 SCC 23, consd. [para. 5].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201; 2000 SCC 43, refd to. [para. 11].

R. v. Graat (1980), 45 N.R. 474; 55 C.C.C.(2d) 429 (C.A.), affd. [1982] 2 S.C.R. 819; 45 N.R. 451, refd to. [para. 16].

Gallant v. Brake-Patten (2012), 321 Nfld. & P.E.I.R. 77; 996 A.P.R. 77; 2012 NLCA 23, refd to. [para. 21].

Mustapha v. Culligan of Canada Ltd. (2006), 218 O.A.C. 271; 275 D.L.R.(4th) 473 (C.A.), refd to. [para. 30].

Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114; 375 N.R. 81; 238 O.A.C. 130; 2008 SCC 27, refd to. [para. 31].

Page v. Smith, [1996] A.C. 155; 182 N.R. 321; [1995] 2 W.L.R. 644 (H.L.), refd to. [para. 33].

Counsel:

Kirk Baert and Celest Poltak, for the plaintiffs;

Jonathan Tarlton, Mark Freeman and Melissa Grant, for the Attorney General of Canada.

This matter was heard on December 14, 2015, at St. John's, N.L., before Stack, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following decision on December 16, 2015.