Broome et al. v. Prince Edward Island, (2009) 282 Nfld. & P.E.I.R. 61 (PEICA)

• Judge: Jenkins, C.J.P.E.I., McQuaid and Murphy, JJ.A.
• Case Date: January 22, 2009
• Jurisdiction: Prince Edward Island
• Citations: (2009), 282 Nfld. & P.E.I.R. 61 (PEICA)

Broome v. P.E.I. (2009), 282 Nfld. & P.E.I.R. 61 (PEICA);

    868 A.P.R. 61

MLB headnote and full text

Temp. Cite: [2009] Nfld. & P.E.I.R. TBEd. JA.018

In The Matter Of a Reference from the Lieutenant Governor in Council pursuant to subsection 18(1) of the Supreme Court Act, R.S.P.E.I. 1988, Cap. S-10, regarding Broome et al. v. Government of Prince Edward Island and Prince Edward Island Protestant Children's Trust, Court File No. S1-GS-18887

(S1-AD-1144; 2009 PECA 1)

Indexed As: Broome et al. v. Prince Edward Island

Prince Edward Island Court of Appeal

Jenkins, C.J.P.E.I., McQuaid and Murphy, JJ.A.

January 22, 2009.

Summary:

In an action commenced in 2002, 57 persons who were at various times between 1928 and 1976 residents in the Prince Edward Island Protestant Orphanage sought damages against the Government and the Trust that operated the private Orphanage, alleging physical and sexual abuse. The Government and the Trust denied liability. The plaintiffs' assertion of Government liability was based on general duty of care, duty of supervision, vicarious liability, fiduciary duty, and non-delegable duty. A Reference was brought pursuant to s. 18 of the Supreme Court Act (P.E.I.) asking the Court of Appeal for its opinion on the application of those legal doctrines to an Agreed Statement of Facts.

The Prince Edward Island Court of Appeal determined the issues accordingly.

Courts - Topic 2004

Jurisdiction - General principles - Inherent jurisdiction (incl. parens patriae jurisdiction) - The Prince Edward Island Court of Appeal stated that "The development and present status of parens patriae is canvassed in Re Eve, [1986] 2 S.C.R. 388. Originally, the power belonged to the King to have the care of those who were not able to take care of themselves, and was founded on the 'obvious necessity that the law should place somewhere the care of individuals who cannot take care of themselves, particularly in cases where it is clear that some care should be thrown around them.' The power was not confined to children. The Crown had inherent jurisdiction to do 'what is for the benefit of the incompetent. Its limits (or scope) have not, and cannot, be defined.' By the seventeenth century, the jurisdiction was transferred to the Lord Chancellor, and upon the creation of provincial superior courts in this country, to those courts, including Prince Edward Island ... Parens patriae continues to exist as a jurisdiction of the superior courts, which can be exercised. It is considered to be distinct from wardship. It is my opinion that the Government of the Province has not had a parens patriae jurisdiction" - See paragraph 62.

Equity - Topic 3606

Fiduciary or confidential relationships - General principles - What constitutes a fiduciary relationship - [See Equity - Topic 3607 ].

Equity - Topic 3607

Fiduciary or confidential relationships - General principles - Relationships which are not fiduciary - In an action commenced in 2002, 57 persons who were at various times between 1928 and 1976 residents in the Prince Edward Island Protestant Orphanage sought damages against the Government and the Trust that operated the private orphanage, alleging physical and sexual abuse - The Prince Edward Island Court of Appeal heard a reference under s. 18 of the Supreme Court Act (P.E.I.) - The court held that the Province did not owe a fiduciary duty to the residents of the orphanage by virtue of their being residents of the orphanage as at 1928, and no such duty subsequently arose - This answer was subject to the qualification that the Province would have had a fiduciary relationship with and fiduciary duty as guardian to children who were its wards during the period of wardship - See paragraphs 109 to 122, 141 and 142.

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - [See Equity - Topic 3607 ].

Guardian and Ward - Topic 807

Public trustee or guardian - General - Jurisdiction - Parens patriae - [See Courts - Topic 2004 ].

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - In an action commenced in 2002, 57 persons who were at various times between 1928 and 1976 residents in the Prince Edward Island Protestant Orphanage sought damages against the Government and the Trust that operated the private orphanage, alleging physical and sexual abuse - The Prince Edward Island Court of Appeal heard a reference under s. 18 of the Supreme Court Act (P.E.I.) - The court held that the Province did not owe a general duty of care to children placed in the orphanage by parents, family members, guardians or charities as at 1928, and no such duty subsequently arose - That answer did not address whether the Province owed a duty of care to children in connection with, or as a result of, its proposal for placement of children in the orphanage as that question was not before the court - The answer was subject to the qualification that upon children who were resident in the orphanage becoming its wards, the Province owed a duty of care as guardian to those children during the period of wardship - That Government duty of care was specific to those children who were its wards; it was not a general or tort law duty of care to all children, or all children who were resident in the orphanage; and it did not create a duty regarding the administration, operation, or supervision of the operation of the orphanage - See paragraphs 58 to 95 and 136 to 138.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - In an action commenced in 2002, 57 persons who were at various times between 1928 and 1976 residents in the Prince Edward Island Protestant Orphanage sought damages against the Government and the Trust that operated the private orphanage, alleging physical and sexual abuse - The Prince Edward Island Court of Appeal heard a reference under s. 18 of the Supreme Court Act (P.E.I.) - The court held that the Province did not have any duty to supervise the operation of the orphanage as at 1928, and no such duty subsequently arose - See paragraphs 96 to 101 and 139.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - In an action commenced in 2002, 57 persons who were at various times between 1928 and 1976 residents in the Prince Edward Island Protestant Orphanage sought damages against the Government and the Trust that operated the private orphanage, alleging physical and sexual abuse - The Prince Edward Island Court of Appeal heard a reference under s. 18 of the Supreme Court Act (P.E.I.) - The court held that the Province did not have a non-delegable duty with respect to the care given to the orphanage's residents by the orphanage's trustees, volunteers and staff as at 1928, and no such duty subsequently arose - There was no provision in the relevant legislation or in the private act of incorporation of the orphanage that suggested that the Province was responsible for the residents' care, for directing their care, or for ensuring that no harm came to them in the course of the care provided by the orphanage's trustees, volunteers or staff - Absent specific provisions in relation to the Province having any responsibility for the orphanage's day-to-day operation or the residents' care, there was no basis upon which to impose a non-delegable duty on the Province - See paragraphs 123 to 130 and 143.

Torts - Topic 2500

Vicarious liability - General principles - General - In an action commenced in 2002, 57 persons who were at various times between 1928 and 1976 residents in the Prince Edward Island Protestant Orphanage sought damages against the Government and the Trust that operated the private orphanage, alleging physical and sexual abuse - The Prince Edward Island Court of Appeal heard a reference under s. 18 of the Supreme Court Act (P.E.I.) - The court held that there was no legislation or common law that made the Province vicariously liable for the acts or omissions of the trustees, volunteers or staff of the orphanage as at 1928, and no such duty subsequently arose - The Province was not involved in the orphanage's administration - It was not an employer - It had no involvement in or control over the orphanage's operations - The trustees were the operator, and they were not acting as agent for or on account of the Government - The Province did not employ any person engaged by the orphanage to care for the residents - There was no basis to infer even an independent contractor relationship between the Province and any such person engaged by the orphanage - See paragraphs 102 to 108 and 140.

Cases Noticed:

K.L.B. et al. v. British Columbia et al. [1998] B.C.T.C. Uned. 233(S.C.), affd. (2001), 151 B.C.A.C. 52; 249 W.A.C. 52 (C.A.), affd. [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42, folld. [para. 30].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 35].

Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575; [1964] A.C. 468 (H.L.), refd to. [para. 40].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), appld. [para. 41].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 42].

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

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 42].

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, refd to. [para. 42].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 42].

Childs v. Desormeaux et al., [2006] 1 S.C.R. 643; 347 N.R. 328; 210 O.A.C. 315; 2006 SCC 18, refd to. [para. 42].

Syl Apps Secure Treatment Centre v. B.D. - see B.D. et al. v. Children's Aid Society of Halton Region et al.

B.D. et al. v. Children's Aid Society of Halton Region et al., [2007] 3 S.C.R. 83; 365 N.R. 302; 227 O.A.C. 161, refd to. [para. 42].

Holland v. Saskatchewan et al. (2008), 376 N.R. 316; 311 Sask.R. 197; 428 W.A.C. 197; 2008 SCC 42, refd to. [para. 42].

Design Services Ltd. et al. v. Canada (2008), 374 N.R. 77; 2008 SCC 22, refd to. [para. 42].

Paxton v. Ramji (2008), 242 O.A.C. 34 (C.A.), refd to. [para. 42].

Eve, Re, [1986] 2 S.C.R. 388; 71 N.R. 1; 61 Nfld. & P.E.I.R. 273; 185 A.P.R. 273, refd to. [para. 62].

E.D.G. v. Hammer et al., [2003] 2 S.C.R. 459; 310 N.R. 1; 187 B.C.A.C. 193; 307 W.A.C. 193, folld. [para. 71].

M.B. v. British Columbia, [2003] 2 S.C.R. 477; 309 N.R. 375; 187 B.C.A.C. 161; 307 W.A.C. 161, folld. [para. 71].

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, folld. [para. 71].

Aksidan v. Canada (Attorney General), [2008] B.C.J. No. 178 (C.A.), folld. [para. 71].

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, refd to. [para. 102].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 121].

Cassidy v. Ministry of Health, [1951] 2 K.B. 343 (C.A.), refd to. [para. 123].

Authors and Works Noticed:

Fleming, John G., The Law of Torts (9th Ed. 1998), p. 149 [para. 38].

Hogg, Peter W. and Monahan, Patrick J., Liability of the Crown (3rd Ed. 2000), pp. 25, 26, 135 to 142 [para. 26]; 184, 185 [para. 86].

Klar, Lewis N., Tort Law (4th Ed. 2008), pp. 157 to 162 [para. 35]; 165 [para. 36].

Counsel:

Denise N. Doiron, for the Government of Prince Edward Island;

J. Gordon MacKay, Q.C., for the respondents/plaintiffs, Intervenor;

Clint G. Docken, Q.C., for the respondents/plaintiffs, Intervenor;

David W. Hooley, Q.C., for the solicitor for the respondents/defendant, The Prince Edward Island Protestant Children's Trust, Intervenor;

Mark R. Frederick, for the respondents/defendant, Prince Edward Island Protestant Children's Trust, Intervenor;

Blair E. Ross, Intervenor;

Susan M. Marshall, Intervenor.

This appeal was heard on June 25 and 26, 2008, by Jenkins, C.J.P.E.I., McQuaid and Murphy, JJ.A., of the Prince Edward Island Court of Appeal. Jenkins, C.J.P.E.I., delivered the following reasons for judgment on January 22, 2009.