Broome et al. v. Prince Edward Island, (2010) 400 N.R. 148 (SCC)

• Judge: McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.
• Court: Supreme Court (Canada)
• Case Date: November 10, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2010), 400 N.R. 148 (SCC);2010 SCC 11;297 Nfld & PEIR 24;EYB 2010-171689;73 CCLT (3d) 1;[2010] EXP 1218;[2010] SCJ No 11 (QL);317 DLR (4th) 218;[2010] 1 SCR 360;400 NR 148;186 ACWS (3d) 870;JE 2010-663

Broome v. P.E.I. (2010), 400 N.R. 148 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2010] N.R. TBEd. AP.001

In The Matter Of A Reference from the Lieutenant Governor in Council pursuant to s. 18(1) of the Supreme Court Act, R.S.P.E.I. 1988, c. S-10, regarding Broome, et al. v. Government of Prince Edward Island and Prince Edward Island Protestant Children's Trust

Hardy Broome, et al. (appellants) v. Government of Prince Edward Island and Prince Edward Island Protestant Children's Trust (respondents) and Susan M. Marshall and Blair E. Ross (intervenors)

(33051; 2010 SCC 11; 2010 CSC 11)

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

Supreme Court of Canada

McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ.

April 1, 2010.

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 Provincial 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, in a decision reported at 282 Nfld. & P.E.I.R. 61; 868 A.P.R. 61, determined the issues accordingly. The plaintiffs appealed.

The Supreme Court of Canada dismissed the appeal.

Crown - Topic 1579

Torts by and against Crown - Negligence by Crown - Negligent supervision - [See first Torts - Topic 77 ].

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 Provincial 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 - Second, between 1958 and 1962, 10 of the 14 plaintiffs just described were proposed for placement in the orphanage by a provincial employee, before they were accepted as residents - The Court of Appeal ultimately declined to give an opinion concerning a duty to these children - It reasoned that the potential liability of the Province in connection with negligent placement of children was not before the court, as the reference questions and the Agreed Statement of Facts focussed on the duties of the Province to children as residents of the orphange, rather than because of their placement by the Province there - The plaintiffs appealed - These qualifications were not challenged on appeal - The Supreme Court of Canada affirmed, inter alia, that the Province did not owe a fiduciary duty to the children in the orphanage, subject to the qualification set out by the Court of Appeal in relation to children in provincial guardianship - See paragraphs 66 to 68.

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 - 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 Provincial 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 - The plaintiffs appealed - The Supreme Court of Canada dismissed the appeal - The court held, inter alia, that the plaintiffs had not shown that the parens patriae doctrine contributed in any way to the existence of proximity between the children in the orphanage and the Province - See paragraphs 48 to 51.

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 Provincial 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 properly 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 - The plaintiffs appealed - They contended that if the Province had a duty of care to one child resident in the orphanage there would be a duty to all who were resident at the same time, as it would be artificial to suggest that the Province could have a duty of care to one child but not to the child in the next bed or the next room - The Supreme Court of Canada rejected the argument for two reasons - First, the fact of legal guardianship mattered in considering whether a duty of care existed - Parents, for example, owed duties to their own children but not necessarily to other children who might be near them - Second, even if the plaintiffs' argument that a duty to one would give rise to a duty to all was accepted, the limited factual record here would not support the application of that principle to the other plaintiffs - Nothing in the record indicated that any of the other plaintiffs resided in the orphanage at the time that the 14 plaintiffs who were in the Province's guardianship were residing there - Similarly, the record was lacking respecting 10 of those 14 children, whom the Province had initially proposed for placement in the orphanage - Nothing indicated whether their placement occurred at the time any of the other plaintiffs, who were not wards of the Province, resided there - See paragraphs 46 and 47.

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 Provincial 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 of care respecting 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 orphanage's private act of incorporation 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 - The plaintiffs appealed - The Supreme Court of Canada dismissed the appeal - The court held, inter alia, that the statutory framework on its own did not demonstrate the degree of proximity required for recognizing a duty of care during the relevant period - Nor did the addition of provincial funding grants that represented anywhere between 8 and 18 % before 1968, and thereafter, 16 and 31% with federal assistance - They were given to the orphanage with no restrictions and no accountability requirements; their use was solely at the trustees' discretion - Such a financial arrangement could not support the existence of sufficient proximity between the Province and the children - While the plaintiffs argued that if the Province was under a duty to use care then it could not divest itself of that responsibility by delegating its performance to the trustees, the plaintiffs had failed to show that the Province was subject to a duty to use care in the first place - See paragraphs 12 to 45 and 53 to 59.

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 Provincial 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 Province - 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 - The plaintiffs appealed - The Supreme Court of Canada dismissed the appeal - To succeed in establishing vicarious liability, the plaintiffs had to show a close connection between the orphanage and the Province - They failed to show such a connection - The Court of Appeal correctly found that the agreed facts and legislative record did not support a finding of vicarious liability of the Province for the acts of the orphanage's employees - See paragraphs 60 to 65.

Torts - Topic 2647

Vicarious liability - Cabinet ministers (incl. premier) - [See Torts - Topic 2500 ].

Torts - Topic 2647

Vicarious liability - Cabinet ministers (incl. premier) - The Supreme Court of Canada stated that "Legislative authority is of course not enough to impose vicarious liability. If it were, a province would be vicariously liable for every act committed in a field within its legislative authority. Such a proposition cannot withstand serious scrutiny." - See paragraph 62.

Cases Noticed:

Reference Re Same-Sex Marriage, [2004] 3 S.C.R. 698; 328 N.R. 1; 2004 SCC 79, refd to. [para. 6].

Reference Re Canada Assistance Plan Act - see Reference Re Constitutional Question Act (B.C.).

Reference Re Constitutional Question Act (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241, refd to. [para. 6].

Reference Re Objection by Quebec to a Resolution to Amend the Constitution - see Quebec Constitution Amendment Reference (No. 2).

Quebec Constitution Amendment Reference (No. 2), [1982] 2 S.C.R. 793; 45 N.R. 317, refd to. [para. 6].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 6].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 13].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 13].

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. 13].

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. 13].

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. 13].

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. 13].

Holland v. Saskatchewan et al., [2008] 2 S.C.R. 551; 376 N.R. 316; 311 Sask.R. 197; 428 W.A.C. 197; 2008 SCC 42, refd to. [para. 13].

Design Services Ltd. et al. v. Canada, [2008] 1 S.C.R. 737; 374 N.R. 77; 2008 SCC 22, refd to. [para. 13].

Ingles v. Tutkaluk Construction Ltd. et al., [2000] 1 S.C.R. 298; 251 N.R. 63; 130 O.A.C. 201; 2000 SCC 12, refd to. [para. 13].

Ryan v. Victoria (City) et al., [1999] 1 S.C.R. 201; 234 N.R. 201; 117 B.C.A.C. 103; 191 W.A.C. 103, refd to. [para. 13].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 16].

Carmarthenshire County Council v. Lewis, [1955] 1 All E.R. 565 (H.L.), refd to. [para. 17].

Ellis v. Home Office, [1953] 2 All E.R. 149 (C.A.), refd to. [para. 17].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 38].

Bell ExpressVu Limited Partnership v. Rex et al., [2002] 2 S.C.R. 559; 287 N.R. 248; 166 B.C.A.C. 1; 271 W.A.C. 1; 2002 SCC 42, refd to. [para. 38].

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. 49].

British Columbia v. Canadian Forest Products Ltd., [2004] 2 S.C.R. 74; 321 N.R. 1; 198 B.C.A.C. 1; 324 W.A.C. 1; 2004 SCC 38, refd to. [para. 49].

King v. Low - see King v. Mr. and Mrs. B.

King v. Mr. and Mrs. B., [1985] 1 S.C.R. 87; 57 N.R. 17; 58 A.R. 275, refd to. [para. 50].

Family Relations Act of British Columbia, Re, [1982] 1 S.C.R. 62; 40 N.R. 206, refd to. [para. 50].

K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 2003 SCC 51, dist. [para. 54].

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. 54].

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. 60].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, dist. [para. 66].

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, dist. [para. 66].

Statutes Noticed:

Children's Protection Act, 1961, S.P.E.I. 1961, c. 3, sect. 3(2)(c) [para. 36].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (5th Ed.) (2007 Looseleaf Supp.) (2009 Update, Release 1), p. 8-16 [para. 4].

Klar, Lewis N., Tort Law (4th Ed. 2008), pp. 645 [para. 60]; 663 [para. 54].

Strayer, Barry L., The Canadian Constitution and The Courts: The Function and Scope of Judicial Review (3rd Ed. 1988), pp. 331, 332 [para. 6].

Counsel:

Clinton G. Docken, Q.C., Reynold A.J. Robertson, Q.C., and Mark Freeman, for the appellants;

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

Mark R. Frederick and David W. Hooley, Q.C., for the respondent, the Prince Edward Island Protestant Children's Trust;

Written submissions only by the intervenor, Susan M. Marshall;

No one appeared for the intervenor, Blair E. Ross.

Solicitors of Record:

Docken & Company, Calgary, Alberta; Robertson Stromberg Pedersen, Saskatoon, Saskatchewan, for the appellants;

Attorney General of Prince Edward Island, Charlottetown, P.E.I., for the respondent, the Government of Prince Edward Island;

Miller Thomson, Toronto, Ontario; Cox & Palmer, Charlottetown, P.E.I., for the respondent, the Prince Edward Island Protestant Children's Trust.

This appeal was heard on November 10, 2009, by McLachlin, C.J.C., Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell, JJ., of the Supreme Court of Canada. Cromwell, J., delivered the following reasons for judgment for the court, in both official languages, on April 1, 2010.