Anderson et al. v. Canada (Attorney General) et al., (2013) 345 Nfld. & P.E.I.R. 164 (NLTD(G))

• Judge: Butler, J.
• Court: Supreme Court of Newfoundland and Labrador (Canada)
• Case Date: May 27, 2013
• Jurisdiction: Newfoundland and Labrador
• Citations: (2013), 345 Nfld. & P.E.I.R. 164 (NLTD(G))

Anderson v. Can. (A.G.) (2013), 345 Nfld. & P.E.I.R. 164 (NLTD(G));

    1074 A.P.R. 164

MLB headnote and full text

Temp. Cite: [2013] Nfld. & P.E.I.R. TBEd. NO.022

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) and The International Grenfell Association (second third party)

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

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

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

(third third party)

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

(third third party)

(2008 01T 0846 CCP; 2013 NLTD(G) 154)

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

Newfoundland and Labrador Supreme Court

Trial Division (General)

Butler, J.

November 19, 2013.

Summary:

The plaintiffs in a class action sought damages for the physical and mental harm they allegedly suffered as students (or their family members suffered as a result of their attendance) at residential schools in Labrador after Confederation in 1949. Fowler, J., certified the action under the Class Actions Act (see 298 Nfld. & P.E.I.R. 289; 921 A.P.R. 289). The issues certified by Fowler, J., were affirmed by the Court of Appeal (see 315 Nfld. & P.E.I.R. 314; 981 A.P.R. 314). The defendant, Attorney General of Canada, served Her Majesty in Right of Newfoundland and Labrador (the Province) with a Third Party Notice. The Province served Third Party Notices on The International Grenfell Association, The Moravian Church in Newfoundland and Labrador and The Moravian Union (Incorporated), who were the alleged operators of the schools. The plaintiffs applied to strike or sever and/or stay all Third Party Claims.

The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the application to strike the Third Party Claims. With respect to the application to sever or stay the Third Party Claims, the court concluded that it should impose on the plaintiffs the requirement that they make a choice to either: a) Confine the certified issues for the common issues trial to the fiduciary duty alleged for both the survivor and family classes and for which liability could not be apportioned, in which case all proceedings (including Third Party claims) relating to any duty for which liability could be apportioned would be severed and stayed to be determined at a later date (if necessary) with the Third Parties reinstated and given full procedural rights; or b) Not confine the certified issues to the fiduciary duty alleged to be owed to the survivor and family classes, in which case the Third Party Claims would not be severed and stayed and the Third Parties would continue to have status as a party to these proceedings.

Practice - Topic 210.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - General (incl. venue, discovery, etc.) - [See Practice - Topic 1137 and Practice - Topic 1138 ].

Practice - Topic 1042

Parties - Third party or subsequent party procedure - General - Stay of third party claim - [See Practice - Topic 1137 ].

Practice - Topic 1137

Parties - Third party or subsequent party procedure - Third party notice - Severance - The plaintiffs in a class action sought damages for the physical and mental harm they allegedly suffered as students (or their family members suffered as a result of their attendance) at residential schools in Labrador after Confederation in 1949 - In addition to breach of fiduciary duty, the plaintiffs claimed that the defendant, Attorney General of Canada (Canada), might be liable in negligence by way of joint operations and administration through its servants, officers, employees and agents - The plaintiffs sought damages for the harm caused by Canada directly or by persons for whom Canada was vicariously liable - Canada served Her Majesty in Right of Newfoundland and Labrador (the Province) with a Third Party Notice - The Province served Third Party Notices on The International Grenfell Association, The Moravian Church in Newfoundland and Labrador and The Moravian Union (Incorporated), who were the alleged operators of the schools - The plaintiffs applied to sever and/or stay all Third Party Claims - The Newfoundland and Labrador Supreme Court, Trial Division (General), stated that "It is conceded that the fiduciary duty alleged cannot involve the Third Parties. I conclude, however, that the other duty of care alleged can and will involve the Third Parties. My dilemma is that the issues that were certified almost three and a half years ago involve both duties" - The court concluded that it should impose on the plaintiffs the requirement that they make a choice to either: a) Confine the certified issues for the common issues trial to the fiduciary duty alleged for both the survivor and family classes and for which liability could not be apportioned, in which case all proceedings (including Third Party claims) relating to any duty for which liability could be apportioned would be severed and stayed to be determined at a later date (if necessary) with the Third Parties reinstated and given full procedural rights; or b) Not confine the certified issues to the fiduciary duty alleged to be owed to the survivor and family classes, in which case the Third Party Claims would not be severed and stayed and the Third Parties would continue to have status as a party to these proceedings - See paragraphs 42 to 89.

Practice - Topic 1138

Parties - Third party or subsequent party procedure - Third party notice - Striking out of - The plaintiffs in a class action sought damages for the physical and mental harm they allegedly suffered as students (or their family members suffered as a result of their attendance) at residential schools in Labrador after Confederation in 1949 - In addition to breach of fiduciary duty, the plaintiffs claimed that the defendant, Attorney General of Canada (Canada), might be liable in negligence by way of joint operations and administration through its servants, officers, employees and agents - The plaintiffs sought damages for the harm caused by Canada directly or by persons for whom Canada was vicariously liable - Canada served Her Majesty in Right of Newfoundland and Labrador (the Province) with a Third Party Notice - The Province served Third Party Notices on The International Grenfell Association, The Moravian Church in Newfoundland and Labrador and The Moravian Union (Incorporated), who were the alleged operators of the schools - The plaintiffs applied to strike all Third Party Claims - The plaintiffs' counsel asserted that there were no tenable Third Party Claims on the general duty of care alleged because the plaintiffs had limited themselves to seeking damages caused solely by Canada - The Newfoundland and Labrador Supreme Court, Trial Division (General), dismissed the application to strike the Third Party Claims - The Amended Statements of Claim had ample references suggestive of joint liability, entitling the plaintiffs to recover 100 percent of the losses (caused by various parties) from Canada alone with a potential for contribution by Canada against others - This was not a case where the court could conclude that the Third Party Claims had no possibility of success - It was therefore inappropriate to strike the Third Party Claims - See paragraphs 22 to 41.

Cases Noticed:

Anns v. Merton London Borough Council, [1978] A.C. 728; [1977] 2 W.L.R. 1024 (H.L.), refd to. [para. 11].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 22].

Lewis et al. v. British Columbia, [1997] 3 S.C.R. 1145; 220 N.R. 81; 98 B.C.A.C. 168; 161 W.A.C. 168, refd to. [para. 24].

Taylor v. Canada (Minister of Health) et al. (2009), 264 O.A.C. 229; 2009 ONCA 487, dist. [para. 27].

Johnston et al. v. Sheila Morrison Schools et al. (2012), 289 O.A.C. 177; 2012 ONSC 1322 (Div. Ct.), dist. [para. 31].

Furlong Estate v. Newfoundland Light & Power Co. (2000), 195 Nfld. & P.E.I.R. 120; 586 A.P.R. 120; 48 C.P.C.(4th) 361 (Nfld. T.D.), refd to. [para. 46].

Blackwater et al. v. Plint et al., [2005] 3 S.C.R. 3; 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24; 2005 SCC 58, consd. [para. 47].

Rich v. Bromley Estate et al. (2013), 336 Nfld. & P.E.I.R. 107; 1043 A.P.R. 107; 2013 NLCA 24, refd to. [para. 55].

Vardy v. Dufour et al. (2008), 275 Nfld. & P.E.I.R. 247; 842 A.P.R. 247; 2008 NLCA 22, refd to. [para. 74].

Johnson Tiles Pty. Ltd. v. Esso Australia Ltd., [2000] F.C.A. 1527; 104 F.C.R. 564 (Aust.), refd to. [para. 77].

Bittner v. Louisiana-Pacific Corp., [1997] B.C.T.C. Uned. E73; 43 B.C.L.R.(3d) 324 (S.C.), refd to. [para. 78].

McDougall v. Collinson et al., [2000] B.C.T.C. 224; 2000 BCSC 398, refd to. [para. 78].

Endean et al. v. Canadian Red Cross Society (B.C.) et al., [1997] B.C.T.C. Uned. 766; 148 D.L.R.(4th) 158 (S.C.), refd to. [para. 78].

T.L. et al. v. Director of Child Welfare (Alta.) et al. (2010), 495 A.R. 304; 2010 ABQB 262, refd to. [para. 78].

Campbell et al. v. Flexwatt Corp. et al., [1996] B.C.T.C. Uned. A29; 25 B.C.L.R.(3d) 329 (S.C.), refd to. [para. 79].

Cooper v. Hobart et al. (1999), 14 B.C.T.C. 201; 68 B.C.L.R.(3d) 293 (S.C.), refd to. [para. 79].

Cooper v. Registrar of Mortgage Brokers (B.C.) - see Cooper v. Hobart et al.

Robertson v. ProQuest Information and Learning LLC et al., [2010] O.T.C. Uned. A31; 84 C.P.R.(4th) 224 (Sup. Ct.), refd to. [para. 80].

Authors and Works Noticed:

Klar, Lewis, Contribution Between Tort-Feasors (1975), 13 Alta. L. Rev. 359, fn. 6 [para. 34].

Klar, Lewis, Tort Law (3rd Ed. 2003), pp. 487, 488, 492, 495 [para. 33].

Counsel:

Kirk Baert, Celeste Poltak and Chesley F. Crosbie, Q.C., for the plaintiffs;

Mark Freeman, Melissa Grant and Jonathan Tarlton, for The Attorney General of Canada;

Rolf Pritchard, Q.C., for Her Majesty in right of Newfoundland and Labrador;

Stephen J. May and Leanne M. O'Leary, for The Moravian Church in Newfoundland and Labrador;

Philip J. Buckingham and Jennifer E. Lundrigan, for The International Grenfell Association;

Glenn Zakaib and Jed Blackburn, for The Moravian Union (Incorporated).

This application was heard on May 27, 2013, at St. John's, N.L., before Butler, J., of the Newfoundland and Labrador Supreme Court, Trial Division (General), who delivered the following decision on November 19, 2013.