Cloud v. Can. (A.G.), (2004) 192 O.A.C. 239 (CA)

• Judge: Catzman, Moldaver and Goudge, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 03, 2004
• Jurisdiction: Ontario
• Citations: (2004), 192 O.A.C. 239 (CA);2004 CanLII 45444 (ON CA);73 OR (3d) 401;247 DLR (4th) 667;27 CCLT (3d) 50;[2004] CarswellOnt 5026;[2004] OJ No 4924 (QL);135 ACWS (3d) 567;192 OAC 239;[2005] 1 CNLR 8;2 CPC (6th) 199

Cloud v. Can. (A.G.) (2004), 192 O.A.C. 239 (CA)

MLB headnote and full text

Temp. Cite: [2004] O.A.C. TBEd. DE.018

Marlene C. Cloud, Geraldine Robertson, Ron Deleary, Leo Nicholas, Gordon Hopkins, Warren Doxtator, Roberta Hill, J. Frank Hill, Sylvia Deleary, William R. Sands, Rosemary Deleary, and Sabrina Yolanda Whiteye (plaintiffs/appellants) v. The Attorney General of Canada, The General Synod of The Anglican Church of Canada, The Incorporated Synod of The Diocese of Huron and The New England Company (defendants/respondents)

(C40771)

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

Ontario Court of Appeal

Catzman, Moldaver and Goudge, JJ.A.

December 3, 2004.

Summary:

The plaintiffs sought to bring an action on behalf of native students who attended the Mohawk Institute Residential School between 1922 and 1969 and their families. The defendants, Canada, the New England Company and the Diocese of Huron, were alleged to be responsible for running the School. The statement of claim sought damages on behalf of the students for breach of fiduciary duty, negligence, assault, sexual assault, battery, breach of aboriginal rights and breach of treaty rights. Damages were also claimed on behalf of the siblings and families of the students for breach of fiduciary duty and for loss of care, guidance and companionship. The plaintiffs sought certification of the action pursuant to the Class Proceedings Act, but excluded the claims for sexual assault from that request.

The Ontario Superior Court, in a decision reported at [2001] O.T.C. 767, dismissed the certification motion. The court found that the statement of claim did not disclose a cause of action with respect to certain of the plaintiffs' claims. The court also found that the plaintiffs failed to establish that there was an identifiable class or that their claims raised common issues. The plaintiffs appealed.

The Ontario Divisional Court, Cullity, J., dissenting, dismissed the appeal. The court held that a class action would not be the preferable procedure. The plaintiffs appealed.

The Ontario Court of Appeal allowed the appeal and certified the action.

Practice - Topic 208

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - For damages - [See first Practice - Topic 209.3 ].

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - The plaintiffs sought to bring an action on behalf of native students who attended the Mohawk Institute Residential School between 1922 and 1969 and their families - The defendants, Canada, the New England Company and the Diocese of Huron, were alleged to be responsible for running the School - The statement of claim sought damages on behalf of the students and their siblings and families for, inter alia, negligence, breach of fiduciary duty and breach of aboriginal rights - The plaintiffs sought certification of the action pursuant to the Class Proceedings Act - The motion was dismissed - The motions judge found, inter alia, that the plaintiffs failed to establish any identifiable class - The Ontario Court of Appeal held that the motions judge applied the wrong test by requiring that all students fully share a cause of action - That was inconsistent with the decision in Hollick (S.C.C.), which made it clear that the shared interest need only extend to the resolution of the common issues - The court found that the identifiable class requirement was met - See paragraph 46.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - The plaintiffs sought to bring an action on behalf of native students who attended the Mohawk Institute Residential School between 1922 and 1969 and their families - The defendants, Canada, the New England Company and the Diocese of Huron, were alleged to be responsible for running the School - The statement of claim sought damages on behalf of the students and their siblings and families for, inter alia, negligence, breach of fiduciary duty and breach of aboriginal rights - The plaintiffs sought certification of the action pursuant to the Class Proceedings Act - The Ontario Court of Appeal held that the identifiable class requirement was met - Membership in the student class was defined by the objective requirement that a member have attended the school between 1922 and 1969 - Membership in the families class required that a person meet the objective criterion of being a spouse, common law spouse or child of someone who was a student - Likewise the siblings class was defined as the parents and siblings of those students - The three proposed classes were not open-ended, but rather were circumscribed by their defining criteria - All three classes were rationally linked to the common issues and were not unnecessarily broad - See paragraph 47.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - The plaintiffs sought to bring an action on behalf of native students who attended the Mohawk Institute Residential School between 1922 and 1969 and their families - The defendants, Canada, the New England Company and the Diocese of Huron, were alleged to be responsible for running the School - The statement of claim sought damages on behalf of the students and their siblings and families for, inter alia, negligence, breach of fiduciary duty and breach of aboriginal rights - The plaintiffs sought certification of the action pursuant to the Class Proceedings Act - The Ontario Court of Appeal ordered that the action be certified - The court held that the plaintiffs had met the commonality requirement in s. 5(1)(c) of the Act - Whether the defendants owed legal obligations to the class members that were breached by the way the defendants ran the School was a necessary and substantial part of each class member's claim - The common trial would take the claims to the point where only causation and harm remained to be established - The court also held that the plaintiffs' claims for an aggregate assessment of damages and punitive damages were properly included as common issues - See paragraphs 69 to 70.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - The criteria for certification of a class action in s. 5(1) of the Class Proceedings Act included that the claims of the class members raise common issues (s. 5(1)(c)) - The Ontario Court of Appeal stated that "an issue can constitute a substantial ingredient of the claims and satisfy s. 5(1)(c) even if it makes up a very limited aspect of the liability question and even though many individual issues remain to be decided after its resolution. In such a case the task posed by s. 5(1)(c) is to test whether there are aspects of the case that meet the commonality requirement rather than to elucidate the various individual issues which may remain after the common trial" - See paragraph 53.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - The plaintiffs sought to bring an action on behalf of native students who attended the Mohawk Institute Residential School between 1922 and 1969 and their families - The defendants, Canada, the New England Company and the Diocese of Huron, were alleged to be responsible for running the School - The statement of claim sought damages on behalf of the students and their siblings and families for, inter alia, negligence, breach of fiduciary duty and breach of aboriginal rights - The plaintiffs sought certification of the action pursuant to the Class Proceedings Act - The Ontario Court of Appeal rejected the defendants' argument that the claims of the class members were so fundamentally individual in nature that any commonality among them was superficial - The plaintiffs' claim of systemic breach of duty in running the School was a part of every class member's case and was of sufficient importance to meet the commonality requirement - The fact that beyond the common issues there were numerous issues that required individual resolution did not undermine the commonality conclusion - See paragraph 58.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - The plaintiffs sought to bring an action on behalf of native students who attended the Mohawk Institute Residential School between 1922 and 1969 and their families - The defendants, Canada, the New England Company and the Diocese of Huron, were alleged to be responsible for running the School - The statement of claim sought damages on behalf of the students and their siblings and families for, inter alia, negligence, breach of fiduciary duty and breach of aboriginal rights - The plaintiffs sought certification of the action pursuant to the Class Proceedings Act - With respect to the requirement of raising common issues, the defendants argued that the plaintiffs' claim of systemic negligence in running the School could not serve as a common issue because the standard of care would undoubtedly change over time as educational standards changed - The Ontario Court of Appeal rejected the argument - The class action proceeding was sufficiently flexible to deal with whatever variation in the applicable standard of care might arise on the evidence - See paragraph 59.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - The plaintiffs sought to bring an action on behalf of native students who attended the Mohawk Institute Residential School between 1922 and 1969 and their families - The defendants, Canada, the New England Company and the Diocese of Huron, were alleged to be responsible for running the School - The statement of claim sought damages on behalf of the students and their siblings and families for, inter alia, negligence, breach of fiduciary duty and breach of aboriginal rights - The plaintiffs sought certification of the action pursuant to the Class Proceedings Act (CPA) - The defendants argued that the affidavit material showed that many of the plaintiffs and other class members did not suffer much of the harm alleged, such as loss of language and culture, and that that underlined the individual nature of those claims and negated any commonality - The Ontario Court of Appeal rejected the argument - Causation of harm would have to be decided individual by individual if and when it was found in the common trial that the defendants breached duties to all class members - However, that did not undermine the conclusion that whether such duties were owed, what the standard of care was, and whether the defendants breached those duties constituted common issues for the purposes of s. 5(1)(c) of the CPA - See paragraph 60.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - The plaintiffs sought to bring an action on behalf of native students who attended the Mohawk Institute Residential School between 1922 and 1969 and their families - The defendants, Canada, the New England Company and the Diocese of Huron, were alleged to be responsible for running the School - The statement of claim sought damages on behalf of the students and their siblings and families for, inter alia, negligence, breach of fiduciary duty and breach of aboriginal rights - The plaintiffs sought certification of the action pursuant to the Class Proceedings Act - The Ontario Court of Appeal held that the defendants' assertion of limitations defences did not undermine the finding of common issues - Those defences could only be dealt with after it was determined whether there were breaches of the systemic duties alleged and over what period of time and when those breaches occurred - Only then could it be concluded when the limitations defences arose - Limitations defences could only be addressed as a part of the individual trials following the common trial - As with other individual issues, the existence of limitations defences did not negate a finding that there were common issues - See paragraph 61.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - The plaintiffs sought to bring an action on behalf of native students who attended the Mohawk Institute Residential School between 1922 and 1969 and their families - The defendants, Canada, the New England Company and the Diocese of Huron, were alleged to be responsible for running the School - The statement of claim sought damages on behalf of the students and their siblings and families for, inter alia, negligence, breach of fiduciary duty and breach of aboriginal rights - The plaintiffs sought certification of the action pursuant to the Class Proceedings Act - The defendants other than Canada argued that, at least for them, a finding of common issues was undermined by their assertion that their proximity to Canada in exercising control over the operation of the School varied over time - The Ontario Court of Appeal rejected the argument - At best, the argument might provide those defendants with a defence to the plaintiffs' claims in the common trial for certain periods of time - Nonetheless the common issues remained and required resolution - See paragraph 62.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - The plaintiffs sought to bring an action on behalf of native students who attended the Mohawk Institute Residential School between 1922 and 1969 and their families - The defendants, Canada, the New England Company and the Diocese of Huron, were alleged to be responsible for running the School - The statement of claim sought damages on behalf of the students and their siblings and families for, inter alia, negligence, breach of fiduciary duty and breach of aboriginal rights - The plaintiffs sought certification of the action pursuant to the Class Proceedings Act - The Ontario Court of Appeal ordered that the action be certified - The court held that a class action was the preferable procedure - The question was whether viewing the common issues in the context of the entire claim, their resolution would significantly advance the action - The assessment was a qualitative one - In this case, resolving the common issues would take the action a long way, a single trial of the common issues would achieve substantial judicial economy, and access to justice would be greatly enhanced by a single trial of the common issues - See paragraphs 73 to 88.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - The plaintiffs sought to bring an action on behalf of native students who attended the Mohawk Institute Residential School between 1922 and 1969 and their families - The defendants, Canada, the New England Company and the Diocese of Huron, were alleged to be responsible for running the School - The statement of claim sought damages on behalf of the students and their siblings and families for, inter alia, negligence, breach of fiduciary duty and breach of aboriginal rights - The plaintiffs sought certification of the action pursuant to the Class Proceedings Act - The defendants argued that a class action was not preferable to other means of resolving the class members' claims - In support of their position they filed evidence describing the alternative dispute resolution (ADR) system that had been put in place by Canada to deal with claims of those who attended native residential schools - The Ontario Court of Appeal did not agree that the ADR system displaced the conclusion that the class action was the preferable procedure - It was a system unilaterally created by one of the defendants and could be unilaterally dismantled without the consent of the plaintiffs - It dealt only with physical and sexual abuse and it capped the amount of possible recovery - Most importantly, compared to the class action it shared the access to justice deficiencies of individual actions - See paragraphs 91 to 92.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - The plaintiffs sought to bring an action on behalf of native students who attended the Mohawk Institute Residential School between 1922 and 1969 and their families - The plaintiffs sought certification of the action pursuant to the Class Proceedings Act - The defendants argued that the action could not be certified because the plaintiffs had not yet produced a workable litigation plan - The Ontario Court of Appeal did not agree that the certification motion should fail on that basis - The plaintiffs' litigation plan was a work in progress and it would undoubtedly have to be amended, particularly in light of the issues found to warrant a common trial - Any shortcomings due to its failure to provide for when limitations issues would be dealt with or how third party claims were to be accommodated could be addressed under the supervision of the case management judge once the pleadings were complete - Nothing in the litigation plan exposed weaknesses in the case as framed that undermined the conclusion that a class action was the preferable procedure - See paragraphs 94 to 95.

Cases Noticed:

Lafrance Estate et al. v. Canada (Attorney General) et al. (2003), 169 O.A.C. 376; 64 O.R.(3d) 1 (C.A.), refd to. [para. 20].

Bonaparte v. Canada (Attorney General) - see Lafrance Estate et al. v. Canada (Attorney General) et al.

Rumley et al. v. British Columbia, [2001] 3 S.C.R. 184; 275 N.R. 342; 157 B.C.A.C. 1; 256 W.A.C. 1; 205 D.L.R.(4th) 39, consd. [para. 29].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 201 D.L.R.(4th) 385, consd. [para. 36].

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 205 D.L.R.(4th) 19; 13 C.P.C.(5th) 1, consd. [para. 36].

Carom et al. v. Bre-X Minerals Ltd. et al. (2000), 138 O.A.C. 55; 51 O.R.(3d) 236 (C.A.), refd to. [para. 39].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 41].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Statutes Noticed:

Class Proceedings Act, S.O. 1992, c. 6, sect. 5(1) [para. 7].

Counsel:

Kirk M. Baert and Russell M. Raikes, for the appellants;

Paul Vickery, Monika Lozinska and Donald Padget, for the respondent, Attorney General of Canada;

Robert B. Bell, for the respondent, New England Company;

Brian T. Daly and Lisa Gunn, for the respondent, Diocese of Huron.

This appeal was heard on May 10 and 11, 2004, before Catzman, Moldaver and Goudge, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Goudge, J.A., and was released on December 3, 2004.