Blackwater et al. v. Plint et al., (2003) 192 B.C.A.C. 1 (CA)

• Judge: Esson, Hall, Saunders, Low and Smith, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: December 10, 2003
• Jurisdiction: British Columbia
• Citations: (2003), 192 B.C.A.C. 1 (CA);2003 BCCA 671

Blackwater v. Plint (2003), 192 B.C.A.C. 1 (CA);

    315 W.A.C. 1

MLB headnote and full text

Temp. Cite: [2003] B.C.A.C. TBEd. DE.035

William Richard Blackwater, W.C.A., C.H.B., The Estate of S.S.D. by his personal representative, L.W., R.A.F., Colbert Melvin Good, S.G.G., R.G., G.J., R.J.J., R.V.J., A.J.J., M.L.J., R.H.J., E.B.M., L.G.P., Dennis Stewart, Daniel Watts, D.W., M.W., M.B.W., M.W. and A.W. (respondents/plaintiffs) v. The United Church of Canada (appellant/defendant) and Arthur Henry Plint, A.E. Caldwell, John Dennys, John Andrews, and Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Develop­ment (respondents/defendants) and Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development and Arthur Henry Plint (respondents/third parties) and Arthur Henry Plint, The Estate of A.E. Caldwell by his personal representative, John Dennys and John Andrews (respondents/third parties) and the United Church of Canada (appellant/third party)

(CA024796)

(S.C.B.C. No. A960336)

Frederick Leroy Barney (respondent/plaintiff) v. The United Church of Canada (appellant/defendant) and Arthur Henry Plint, John Dennys, John Andrews and Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development (respondents/defendants)

(S.C.B.C. No. C975834)

Harvey Brooks, Gilbert Hill, Patrick Dennis Stewart, Marlon Bradford Watts, Dennis William Tallio and Harry Devine Wilson (respondents/plaintiffs) v. The United Church of Canada (appellant/defendant) and Arthur Henry Plint, A.E. Caldwell, John Dennys, John Andrews and Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development (respondents/defendants)

(S.C.B.C. No. A972666)

Dennis Thomas (respondent/plaintiff) v. The United Church of Canada (appellant/defendant) and Arthur Plint and Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development (respondents/defendants)

(S.C.B.C. No. S09345)

R.A.F., R.J.J., M.L.J., M.W. (appellants/plaintiffs) v. Arthur Henry Plint, A.E. Caldwell, John Dennys, John Andrews, the United Church of Canada and Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development (respondents/defendants)

(CA028840)

(S.C.B.C. No. A960336)

Frederick Leroy Barney (appellant/plaintiff) v. Arthur Henry Plint, John Dennys, John Andrews, the United Church of Canada and Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development (respondents/defendants)

(CA028841)

(S.C.B.C. No. C975834)

William Richard Blackwater, W.C.A., C.H.B., The Estate of S.S.D. by his personal representative, L.W., R.A.F., Colbert Melvin Good, S.G.G., R.G., G.J., R.J.J., R.V.J., A.J.J., M.L.J., R.H.J., E.B.M., L.G.P., Dennis Stewart, Daniel Watts, D.W., M.W., M.B.W., M.W. and A.W. (respondents/plaintiffs) v. The United Church of Canada (appellant/defendant) and Arthur Henry Plint, A.E. Caldwell, John Dennys, John Andrews, and Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Develop­ment (respondents/defendants) and Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development and Arthur Henry Plint (respondents/third parties) and Arthur Henry Plint, The Estate of A.E. Caldwell by his personal representative, John Dennys and John Andrews (respondents/third parties) and the United Church of Canada (appellant/third party)

(CA028844)

(S.C.B.C. No. A960336)

Frederick Leroy Barney (respondent/plaintiff) v. The United Church of Canada (appellant/defendant) and Arthur Henry Plint, John Dennys, John Andrews and Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development (respondents/defendants)­

(S.C.B.C. No. C975834)

Harvey Brooks, Gilbert Hill, Patrick Dennis Stewart, Marlon Bradford Watts, Dennis William Tallio and Harry Devine Wilson (respondents/plaintiffs) v. The United Church of Canada (appellant/defendant) and Arthur Henry Plint, A.E. Caldwell, John Dennys, John Andrews and Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development (respondents/defendants)

(S.C.B.C. No. A972666)

Dennis Thomas (respondent/plaintiff) v. Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development (appellant/defendant) and Arthur Henry Plint and the United Church of Canada (respondents/defendants) and Arthur Henry Plint (respondent/third party) and the United Church of Canada, Arthur Henry Plint, John Printz, John Dennys and John Andrews (respondents/third parties)

(CA028845)

(S.C.B.C. No. S09345)

Frederick Leroy Barney (respondent/plaintiff) v. Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development (appellant/defendant) and Arthur Henry Plint, John Dennys, John Andrews and the United Church of Canada (respondents/defendants) and the United Church of Canada, Arthur Henry Plint, John Dennys and John Andrews (respondents/third parties) and Arthur Henry Plint (respondent/third party)

(CA028846)

(S.C.B.C. No. C975834)

Harvey Brooks, Gilbert Hill, Patrick Dennis Stewart, Marlon Bradford Watts, Dennis William Tallio and Harry Devine Wilson (respondents/plaintiffs) v. Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development (appellant/defendant) and Arthur Henry Plint, A.E. Caldwell, John Dennys, John Andrews and the United Church of Canada (respondents/defendants) and Arthur Henry Plint (respondent/third party) and the United Church of Canada, Arthur Henry Plint, John Dennys and John Andrews (respondents/third parties)

(CA028847)

(S.C.B.C. No. A972666)

William Richard Blackwater, W.C.A., C.H.B., The Estate of S.S.D. by his personal representative, L.W., R.A.F., Colbert Melvin Good, S.G.G., R.G., G.J., R.J.J., R.V.J., A.J.J., M.L.J., R.H.J., E.B.M., L.G.P., Dennis Stewart, Daniel Watts, D.W., M.W., M.B.W., M.W. and A.W. (respondents/plaintiffs) v. Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and Northern Development (appellant/defendant) and Arthur Henry Plint, A.E. Caldwell, John Dennys, John Andrews and the United Church of Canada (respondents/defendants) and Arthur Henry Plint (respondent/third party) and the United Church of Canada, Arthur Henry Plint, The Estate of A.E. Caldwell by his personal representative, John Dennys and John Andrews (respondents/third parties)

(CA028848)

(S.C.B.C. No. A960336)

P.D.S. (appellant/plaintiff) v. Arthur Henry Plint, A.E. Caldwell, John Dennys, John Andrews, the United Church of Canada and Her Majesty the Queen in Right of Canada as represented by the Minister of Indian Affairs and North­ern Development (respondents/defendants)

(CA028853)

(S.C.B.C. No. A972666)

(2003 BCCA 671)

Indexed As: Blackwater et al. v. Plint et al.

British Columbia Court of Appeal

Esson, Hall, Saunders, Low and Smith, JJ.A.

December 10, 2003.

Summary:

The plaintiffs had been students at the Alberni Indian Residential School on Vancouver Island in the 1940s, 1950s and 1960s. In four separate actions, the 27 plaintiffs sued Canada, the United Church of Canada, Plint and others for damages arising from alleged sexual assaults and other wrongs done to them while they were resi­dents at the school. The trial was conducted in three phases: vicarious liability, other liability issues and damages. Most of the cases were settled between the first and second phases. The final judgment dealt with the actions of only seven plaintiffs. In six of them, the trial judge found that the allega­tions of sexual assault were proven to have been committed by Plint, a dormitory super­visor. The action of the seventh plaintiff (M.J.) was dismissed. In all of the actions, the trial judge found that all causes of action other than sexual assault were statute-barred.

The British Columbia Supreme Court, in a decision reported at [1998] B.C.T.C. Uned. 755, held that Canada and the Church were jointly liable on the basis of vicarious liabil­ity for the acts of Plint. Liability was appor­tioned 75% against Canada and 25% against the Church. In a second judgment, reported at [2001] B.C.T.C. 997, the Supreme Court dealt with issues of the vicarious liability of Canada and the Church for acts of other perpetrators, negligence, breach of fiduciary duty, non-delegable statutory duty, limita­tion defences, third party claims by the Church and Canada against each other and the assessment of damages.

The Church appealed the finding of vicari­ous liability and damages. Canada cross-appealed the apportionment of liability, the finding that it breached its non-delegable duty of care and damages. The plaintiffs all cross-appealed the dismissal of their allega­tions of negligence, non-delegable duty, breach of fiduciary duty and vicarious liabil­ity. The plaintiffs also appealed the dis­missal of their claims for damages for cul­tural losses. Each plaintiff appealed the amount of damages awarded to him.

The British Columbia Court of Appeal allowed the Church's appeal, but dismissed Canada's appeal. The court allowed the appeal of the plaintiff M.J. and ordered a new trial. The appeal of the plaintiff F.L.B. was allowed in part respecting damages for impairment of earning capacity. The appeals of the plaintiffs R.J.J. and M.W.(2) were allowed in part respecting nonpecuniary (incl. aggravated) damages. The appeals of all other plaintiffs were dismissed.

Editor's Note: see also related cases at [1998] B.C.T.C. Uned. E76, and [2002] B.C.A.C. Uned. 147.

Crown - Topic 1527

Torts by and against Crown - Liability of Crown for acts of servants - When Crown liable - Six former students at an Indian residential school were found to have been sexually assaulted by Plint, a dormitory supervisor - The school was founded by the then Presbyterian Church in 1891 (since 1925 the United Church), and "man­aged" by them until 1969, when Canada assumed complete control - The British Columbia Court of Appeal affirmed that Plint was Canada's employee, so as to render Canada vicariously liable for his torts - The Church, which "voluntarily cooperated" in the operation of the school, was not liable for Plint's wrongdoings - A 1962 agreement between Canada and the Church did not purport to transfer all management responsibilities to the Church - See paragraphs 29 to 50.

Crown - Topic 1578

Torts by and against Crown - Negligence by Crown - Sexual abuse by employees - Six former students at an Indian residential school were found to have been sexually assaulted by Plint, a dormitory supervisor -The trial judge dismissed the students' allegations of negligence against the feder­al Crown (Canada) and the United Church - The British Columbia Court of Appeal affirmed that neither defendant was negli­gent - See paragraphs 66 to 72, 109.

Crown - Topic 2804

Crown immunity - General - Immunity under federal legislation - [See first Prac­tice - Topic 9012 ].

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - [See Dam­ages - Topic 1549 ].

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault (incl. sexual abuse) - The British Columbia Court of Appeal stated that there was no legal limit on nonpecuniary awards in cases of sexual assault - See paragraph 169.

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault (incl. sexual abuse) - F.L.B. was sexually abused from ages seven to 12 by a dormitory supervisor while a student at an Indian residential school - Forced fella­tio three times, anally raped once, other likely sexual assaults - Death threats ac­companied these violent, brutal assaults - Perpetrator covered his mouth, punched him in the stomach and struck him in the head and ears - Resulted in a personality disorder that inhibited development of personal relationships and produced im­pulsive behaviour and anger management problems - Impaired self-esteem and diffi­culties formulating an identity - The Brit­ish Columbia Court of Appeal affirmed an award of nonpecuniary damages of $145,000 (incl. $20,000 aggravated dam­ages) - See paragraphs 201 to 202.

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault (incl. sexual abuse) - R.A.F. was sexually assaulted from ages 12 to 13 by a dormitory supervisor while a student at an Indian residential school - Forced fellatio twice, mutual masturbation, simulated intercourse, four other sexual assaults and 6-12 other incidents - Resulting periodic bouts of depression - The British Colum­bia Court of Appeal affirmed an award of nonpecuniary damages of $85,000 (incl. aggravated damages) - See paragraphs 203 to 204.

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault (incl. sexual abuse) - R.J.J. was sexually assaulted from aged 9-12 years by a dormitory supervisor while a student at an Indian residential school - Mutual fondling of genitals, mutual masturbation and fellatio - Acts accompanied by threats, causing fear - Only minor lasting psycho­logical injury - The British Columbia Court of Appeal increased an award of nonpecuniary damages from $20,000 to $35,000 - See paragraphs 205, 229 to 233.

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault (incl. sexual abuse) - P.D.S. was sexually assaulted from ages 8 to 17 by a dormitory supervisor while a student at an Indian residential school - Four occasions of fondling over his clothes - Incidents could not be proven to cause or contribute to his present psychological difficulties - The British Columbia Court of Appeal affirmed an award of nonpecuniary dam­ages of $10,000 - See paragraph 206.

Damage Awards - Topic 627

Torts - Injury to the person - Sexual assault (incl. sexual abuse) - M.W. was sexually assaulted from ages four to seven years by a dormitory supervisor while a student at an Indian residential school - One occasion proven of being forced to fondle the perpetrator's penis - The British Columbia Court of Appeal increased an award of nonpecuniary damages from $15,000 to $25,000 - See paragraphs 207 to 209, 229 to 233.

Damages - Topic 62

General principles - Considerations in assessing damages - Similar cases - [See Damages - Topic 818 ].

Damages - Topic 508

Limits of compensatory damages - Gen­eral - Causes independent of wrongful act - Canada was found vicariously liable for sexual assaults committed by a dormitory supervisor against six former students at an Indian residential school - The British Columbia Court of Appeal held that the trial judge did not err by taking into account, in his assessment of nonpecuniary damages, unrelated contributing causes of the plaintiffs' present psychological condi­tions (emotional abuse, racism, isolation and hunger) - The court rejected the argu­ment that other potentially causal factors could be considered only if they were medical conditions of impairment or dysfunction and only if the conditions were manifest and disabling at the time of the tort - See paragraphs 145 to 158.

Damages - Topic 818

Assessment - General - Effect of damage awards in other cases - The British Co­lumbia Court of Appeal discussed the sig­nificance of damage awards in similar cases by a judge and by a jury - See para­graphs 174 to 177, 180 to 189.

Damages - Topic 903

Aggravation - General - Aggravated dam­ages - Sexual abuse - Canada was found vicariously liable for sexual assaults com­mitted by a dormitory supervisor against six former students at an Indian residential school - The British Columbia Court of Appeal held that the trial judge did not err in failing to take the plaintiffs' traumatic experiences at the school (the particularly vulnerable position of each student arising from compulsory attend­ance) into account as aggravating damages - See paragraphs 159 to 164.

Damages - Topic 904.1

Aggravation - General - Aggravated dam­ages - Vicarious liability - The British Colum­bia Court of Appeal held that aggra­vated damages were a part of compensa­tory nonpecuniary damages for which a vicari­ously liable party was responsible - See paragraphs 103 to 105.

Damages - Topic 1297

Exemplary or punitive damages - Condi­tions precedent (or when awarded) - Six former students at an Indian residential school were found to have been sexually assaulted by Plint, a dormitory supervisor - The federal Crown (Canada) was found vicariously liable for Plint's wrongdoings - The trial judge awarded punitive damages only against Plint - The British Columbia Court of Appeal noted that punitive dam­ages were awarded only against a defend­ant whose particular conduct merited con­demnation - The court affirmed that Can­ada's vicarious liability did not arise from any reprehensible conduct on its part, neither did Canada commit any indepen­dent actionable wrong on its own; there­fore, Canada was not liable for punitive damages - Plint's actions were not those of Canada (he not being top management) - See paragraphs 106 to 117.

Damages - Topic 1302.1

Exemplary or punitive damages - Sexual assault (incl. sexual abuse) - [See Dam­ages - Topic 1297 ].

Damages - Topic 1332.1

Exemplary or punitive damages - Liability of Crown - [See Damages - Topic 1297 ].

Damages - Topic 1543

General damages - General damages for personal injuries - Pain and suffering, loss of amenities and other nonpecuniary dam­ages - [See first Damage Awards - Topic 627 ].

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - Canada was found vicariously liable for sexual assaults committed by a dormitory super­visor against six former students at an Indian residential school - The British Columbia Court of Appeal awarded one student (F.L.B.) $20,000 for impairment of earning capacity - The trial judge failed to consider that F.L.B.'s psy­chologi­cal injury would, at least for a period of time in the future, foreclose for him some occupations that might otherwise be avail­able - Since R.A.F. suffered no continuing effects of the abuse, damages for impaired earning capacity were not justified - Nei­ther M.W. or P.D.S. proved their ongoing psychologi­cal problems were caused by the abuse and no award was justified - See paragraphs 211 to 227.

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - The British Columbia Court of Appeal stated that while past pecuniary losses must be proven on a balance of probabil­ities, a claim for damages for future loss of oppor­tunity required a com­parison of pre- and post- tort earning capacity and must be established on the standard of simple prob­ability or realistic chance - See para­graph 213.

Damages - Topic 2422

Torts affecting the person - Assault - Abuse or sexual assault - [See first Dam­age Awards - Topic 627 ].

Damages - Topic 2422

Torts affecting the person - Assault - Abuse or sexual assault - Canada was found vicariously liable for sexual assaults committed by a dormitory supervisor against six former students at an Indian residential school - The British Columbia Court of Appeal held that the trial judge did not err in applying the fundamental principle that damages in tort were to restore the plaintiffs to the position they would have been in had the assaults not occurred - The benchmark was not the positions they were in when they entered the school, a time that preceded the sexual assaults - Canada was not liable to the plaintiffs for aspects of their present con­ditions (resulting from emotional abuse, racism, isolation and hunger experienced at the school), that were causally unrelated to the assaults - See paragraphs 145 to 158.

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - Six former students at an Indian residential school were found to have been sexually assaulted by Plint, a dormitory supervisor - The trial judge dismissed the students' allegations of breach of fiduciary duty against the federal Crown (Canada) and the United Church - He found no evidence of dishonesty or intentional disloyalty towards the students sufficient to engage the law relating to fiduciary obligations - The British Colum­bia Court of Appeal affirmed that neither defendant breached a fiduciary duty to the students - See paragraphs 66, 73 to 75, 109.

Equity - Topic 3645.1

Fiduciary or confidential relationships - Breach of fiduciary relationship - Churches and clergy - [See Equity - Topic 3611 ].

Master and Servant - Topic 3703

Liability of master for acts of servant - Torts - Wilful acts - Sexual abuse - [See Crown - Topic 1527 ].

Practice - Topic 5007

Conduct of trial - General principles - Severed trials - Recalling witnesses - A civil trial was conducted in three phases: vicarious liabil­ity, other liability issues and damages - The British Columbia Court of Appeal held that the trial judge did not err in the exercise of his discretion by ruling that those plaintiffs who had already testi­fied in the liability phases ought not to be per­mitted to testify further in the damages phase - See para­graphs 83 to 90.

Practice - Topic 8802

Appeals - General principles - Duty of appellate court regarding damage awards by a trial judge - The British Columbia Court of Appeal referred to the standard of review of an award of damages by a trial judge - See paragraphs 124 to 126.

Practice - Topic 8806

Appeals - General principles - Duty of appellate court regarding damage awards by a jury - The British Columbia Court of Appeal referred to the standard of review of an award of nonpecuniary damages by a jury - See paragraph 179.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - The federal Crown (Canada) was found vicariously liable for sexual assaults on six former students at an Indian resi­dential school, committed by Plint, a dor­mitory supervisor - Only one case arose during Plint's first period at the school (1949-1959), a sexual assault against R.J.J. - Canada appealed on the ground that the assaults occurred before May 14, 1953 - It was not until the Crown Liabil­ity Act was enacted on May 14, 1953 that Canada became liable for torts committed by its servants - The British Columbia Court of Appeal held that because this matter was not raised in the pleadings, Canada could not rely on this point on appeal - Regard­less, there was evidence that there were assaults after May 1953 - See paragraphs 22 to 23, 58 to 65.

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - The federal Crown (Canada) was found vicariously liable for sexual assaults by a dormitory supervisor upon six former stu­dents at an Indian residential school - All claims other than those based upon sexual abuse were found to be statute-barred - On appeal, the plaintiffs claimed damages for loss of their native language and culture, resulting from being required to attend the school and the rules and treatment to which they were subjected while there - No such claim was advanced in the plaintiffs' plead­ings, save as a par­ticular of damage alleged to have flowed from other torts - The British Columbia Court of Appeal held that the plaintiffs could not raise these issues on appeal - See paragraphs 76 to 82.

Practice - Topic 9226

Appeals - New trials - Admissible evi­dence rejected or overlooked - Former students at an Indian residential school sued Canada and the United Church for sexual assaults allegedly committed on them during their residency - The only female plaintiff (M.J.) alleged sexual assaults against her by two staff members - The trial judge accepted, on a crucial issue, the evidence of an independent defence witness over that of M.J. - The British Columbia Court of Appeal held that the trial judge erred by overlooking evidence adduced in cross-examination of the defence witness - The court ordered a new trial respecting M.J., because of the danger that the evidentiary finding had an overriding influence on the ruling that the plaintiff had not proven her case to the requisite standard - See para­graphs 91 to 99.

Torts - Topic 49.40

Negligence - Standard of care - Particular persons and relationships - Charitable or non-profit organizations (incl. churches) - [See Crown - Topic 1578 ].

Torts - Topic 2530

Vicarious liability - Master and servant - Employer - Liability for acts of employees - [See Crown - Topic 1527 ].

Torts - Topic 2648

Vicarious liability - Particular persons - Churches - [See Crown - Topic 1527 ].

Cases Noticed:

Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al. (2002), 163 B.C.A.C. 164; 267 W.A.C. 164; 98 B.C.L.R.(3d) 16; 2002 BCCA 59, refd to. [para. 2].

Taku River Tlingit First Nation v. Ringstad et al. - see Taku River Tlingit First Nation et al. v. Tulsequah Chief Mine Project (Project Assessment Director) et al.

Director of Investigation and Research, Competition Act v. Southam Inc. et al., [1997] 1 S.C.R. 748; 209 N.R. 20, refd to. [para. 35].

Sinclair v. Dover Engineering Services Ltd. (1988), 49 D.L.R.(4th) 297 (B.C.C.A.), affing. (1987), 11 B.C.L.R.(2d) 176 (S.C.), not appld. [para. 40].

P.A.B. v. Children's Foundation et al., [1999] 2 S.C.R. 534; 241 N.R. 266; 124 B.C.A.C. 119; 203 W.A.C. 119, consd. [para. 42].

Bazley v. Curry - see P.A.B. v. Children's Foundation et al.

E.D.G. v. Hammer et al., [1998] B.C.T.C. Uned. 974; 53 B.C.L.R.(3d) 89 (S.C.), affd. (2001), 151 B.C.A.C. 34; 249 W.A.C. 34; 86 B.C.L.R.(3d) 191; 2001 BCCA 226, affd. (2003), 310 N.R. 1; 187 B.C.A.C. 193; 307 W.A.C. 193; 2003 SCC 52, refd to. [para. 55].

K.L.B. et al. v. British Columbia et al., [1998] B.C.T.C. Uned. 233; 51 B.C.L.R.(3d) 1 (S.C.), revd. in part (2001), 151 B.C.A.C. 52; 249 W.A.C. 52; 87 B.C.L.R.(3d) 52; 2001 BCCA 221, affd. (2003), 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 2003 SCC 51, refd to. [paras. 55, 124].

E.B. v. Order of the Oblates of Mary Immaculate (B.C.) et al. (2003), 182 B.C.A.C. 288; 300 W.A.C. 288; 14 B.C.L.R.(4th) 99; 2003 BCCA 289, refd to. [para. 57].

C.A. et al. v. Critchley et al. (1998), 113 B.C.A.C. 248; 184 W.A.C. 248; 166 D.L.R.(4th) 475; 60 B.C.L.R.(3d) 92 (C.A.), refd to. [para. 74].

M.B. v. British Columbia (2003), 309 N.R. 375; 187 B.C.A.C. 161; 307 W.A.C. 161; 2003 SCC 53, refd to. [paras. 100, 124].

T.W.N.A. et al. v. Clarke et al. (2003), 190 B.C.A.C. 250; 311 W.A.C. 250; 2003 BCCA 670, refd to. [para. 105].

T.W.N.A. v. Canada (Minister of Indian and Northern Affairs) - see T.W.N.A. et al. v. Clarke et al.

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 107].

Ship Rhone v. Ship Peter A.B. Widener et al., [1993] 1 S.C.R. 497; 148 N.R. 349, refd to. [para. 110].

Gauthier v. Lac Brôme (Ville), [1998] 2 S.C.R. 3; 228 N.R. 5, dist. [para. 113].

Peeters v. Canada, [1994] 1 F.C. 562; 163 N.R. 209 (F.C.A.), not appld. [para. 114].

Cory et al. v. Marsh (1993), 22 B.C.A.C. 118; 38 W.A.C. 118; 77 B.C.L.R.(2d) 248 (C.A.), refd to. [para. 125].

Le v. Luz (2003), 189 B.C.A.C. 155; 309 W.A.C. 155; 2003 BCCA 640, refd to. [para. 126].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, appld. [para. 147].

M.B. v. British Columbia (2001), 151 B.C.A.C. 70; 249 W.A.C. 70; 87 B.C.L.R.(3d) 12; 2001 BCCA 227, revd. (2003), 309 N.R. 375; 187 B.C.A.C. 161; 307 W.A.C. 161; 2003 SCC 53, refd to. [para. 153].

J.L.V.M. v. P.H. (1998), 109 B.C.A.C. 165; 177 W.A.C. 165 (C.A.), not appld. [para. 155].

S.Y. v. F.G.C. (1996), 78 B.C.A.C. 209; 128 W.A.C. 209; 26 B.C.L.R.(3d) 155 (C.A.), consd. [paras. 168, 231].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 169].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1, refd to. [para. 169].

Thornton et al. v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552, refd to. [para. 169].

A.B. v. T.S., [2000] B.C.T.C. 450; 2000 BCSC 976, refd to. [para. 172].

Cody v. Leonard (1995), 66 B.C.A.C. 161; 108 W.A.C. 161; 15 B.C.L.R.(3d) 117 (C.A.), refd to. [para. 179].

Ferguson v. Lush (2003), 188 B.C.A.C. 118; 308 W.A.C. 118; 2003 BCCA 579, refd to. [para. 179].

Davies v. Powell Duffryn Associated Col­lieries, [1942] A.C. 601 (H.L.), refd to. [para. 179].

Strazza v. Stupich (2000), 138 B.C.A.C. 161; 226 W.A.C. 161; 2000 BCCA 108, refd to. [para. 180].

Deglow v. Uffelman (2001), 160 B.C.A.C. 114; 261 W.A.C. 114; 96 B.C.L.R.(3d) 130; 2001 BCCA 652, refd to. [para. 181].

Morey v. Woodfield (No. 2), [1963] 3 All E.R. 533 (C.A.), refd to. [para. 183].

Bisson v. Powell River (District) (1967), 62 W.W.R.(N.S.) 707 (B.C.C.A.), refd to. [para. 183].

Brisson v. Brisson (2002), 168 B.C.A.C. 255; 275 W.A.C. 255; 213 D.L.R.(4th) 428; 2002 BCCA 279, refd to. [para. 184].

Bob v. Bellerose (2003), 184 B.C.A.C. 218; 302 W.A.C. 218; 16 B.C.L.R.(4th) 56; 2003 BCCA 371, not appld. [para. 189].

Vaillancourt v. Molnar Estate (2002), 176 B.C.A.C. 109; 290 W.A.C. 109; 8 B.C.L.R.(4th) 260; 2002 BCCA 685, not appld. [para. 189].

W.K. v. Pornbacher et al., [1997] B.C.T.C. Uned. 50; 32 B.C.L.R.(3d) 360 (S.C.), refd to. [para. 194].

C.A. et al. v. Critchley et al., [1997] B.C.T.C. Uned. 702; 35 B.C.L.R.(3d) 234 (S.C.), refd to. [para. 194].

Currie v. Trca, [1998] B.C.T.C. Uned. 592 (S.C.), refd to. [para. 194].

T.S. v. J.W.P. (1999), 7 B.C.T.C. 62 (S.C.), refd to. [para. 194].

W.M.Y. v. Scott et al., [2000] B.C.T.C. 725; 2000 BCSC 1294, refd to. [para. 194].

M.B. v. British Columbia et al., [2000] B.C.T.C. 305; 2000 BCSC 735, refd to. [para. 194].

Wood v. Atherton, [2001] B.C.T.C. 863; 2001 BCSC 863, refd to. [para. 194].

J.A.K.E. v. British Columbia et al., [2002] B.C.T.C. 418; 1 B.C.L.R.(4th) 107; 2002 BCSC 418, refd to. [para. 194].

E.P. v. J.E.S., [2002] B.C.T.C. 588; 2002 BCSC 588, refd to. [para. 194].

Russ-Essandoh v. Russ et al., [2002] B.C.T.C. 1275; 2002 BCSC 1275, refd to. [para. 194].

L.B. v. W.M., [2003] B.C.T.C. 261; 2003 BCSC 261, refd to. [para. 194].

Doe v. O'Dell et al., [2003] O.T.C. 821 (Sup. Ct.), refd to. [para. 194].

Brown v. Golaiy (1985), 26 B.C.L.R.(3d) 353 (S.C.), refd to. [para. 212].

Janiak v. Ippolito, [1985] 1 S.C.R. 146; 57 N.R. 241; 9 O.A.C. 1, refd to. [para. 213].

Rosvold v. Dunlop et al. (2001), 147 B.C.A.C. 56; 241 W.A.C. 56; 84 B.C.L.R.(3d) 158; 2001 BCCA 1, refd to. [para. 213].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, consd. [para. 214].

Sales v. Clarke (1998), 113 B.C.A.C. 26; 184 W.A.C. 26; 57 B.C.L.R.(3d) 36 (C.A.), refd to. [para. 215].

Kwei et al. v. Boisclair et al. (1991), 6 B.C.A.C. 314; 13 W.A.C. 314; 60 B.C.L.R.(2d) 393 (C.A.), refd to. [para. 219].

Palmer v. Goodall (1991), 53 B.C.L.R.(2d) 44 (C.A.), refd to. [para. 221].

Authors and Works Noticed:

Canada, Report of the Royal Commission on Aboriginal Peoples (1996), vol. 1, Part 2, c. 10, s. 2 [para. 20].

Counsel:

C.E. Hinkson, Q.C., and B.S. Buettner, for the United Church of Canada;

P.R.A. Grant, D. Soroka, and A.M. Early, for R.A.F., R.J.J., M.L.J., M.W. and Frederick Leroy Barney;

M.R. Taylor, M. Double and L.S. Riddle, for Canada (Indian Affairs);

D.R. Paterson, for P.D.S.;

H.M.G. Braker, Q.C., and R.C. Freedman, for the intervenor, Nuu-Chah-Nulth Tribal Council.

These appeals were heard at Vancouver, British Columbia, on January 20 to 24, 2003, before Esson, Hall, Saunders, Low and Smith, JJ.A., of the British Columbia Court of Appeal.

The decision of the Court of Appeal was delivered on December 10, 2003, when the following opinions were filed:

Esson, J.A., rea­sons on liability issues (Hall, Saunders, Low and Smith, JJ.A., concurring) - see para­graphs 1 to 101;

Smith, J.A., reasons on quantum issues, dissenting in part (Low, J.A., concur­ring) - see para­graphs 102 to 228;

Saunders, J.A., reasons on quantum issues (Esson and Hall, JJ.A., concur­ring) - see paragraphs 229 to 233.