Digest: Kequahtooway v Saskatchewan (Government), 2018 SKCA 68

• Date: August 18, 2019

Reported as: 2018 SKCA 68

Docket Number: CACV 2732 , CA17178

Court: Court of Appeal

Date: 2019-08-18

Judges:

• Jackson
• Ottenbreit
• Whitmore

Subjects:

• Civil Procedure � Class Actions � Certification � Appeal

Digest: The appellant plaintiff appealed from the decision of a Queen�s Bench judge that refused to certify a class action alleging systemic abuse at an institution for the intellectually challenged. The institution was operating under the name of Valley View Centre. The appellant, represented by her litigation guardian, resided at the centre from 1968 to 1971. The respondent, the Government of Saskatchewan, had operated the centre since 1955. The appellant alleged that she was the victim of physical, psychological and sexual abuse while she resided there. She sought to have a class action certified on behalf of all residents of the centre from 1955 to the date at which she commenced her claim, in 2010. The claim asserted systemic negligence and breach of fiduciary duty for which the appellant sought damages from the respondent. The chambers judge refused to certify the class action, holding first that the common issues were not appropriate nor useful, and second, that a class action was not the preferable procedure for individual claimants to pursue their claims (see: 2015 SKQB 183 and 2014 SKQB 260).
HELD: The appeal was allowed. The court remitted the matter back to the Court of Queen�s Bench for another certification hearing. It found that the judge erred because he had not completed his common issues analysis under s. 6(1)(c) of The Class Actions Act before considering whether a class proceeding would be the preferable approach to resolving the disputes under s. 6(1)(d). He failed to situate his analysis in the case law where institutional abuse claims have been certified and did not consider the effect of Fischer as to whether a class proceeding should be certified in this case.

Statutes Considered:

• Class Actions Act, SS 2001, c C-12.01, s 6
• Class Actions Act, SS 2001, c C-12.01, s 6(1)
• Class Actions Act, SS 2001, c C-12.01, s 6(1)(a)
• Class Actions Act, SS 2001, c C-12.01, s 6(1)(b)
• Class Actions Act, SS 2001, c C-12.01, s 6(1)(c)
• Class Actions Act, SS 2001, c C-12.01, s 6(1)(d)
• Class Actions Act, SS 2001, c C-12.01, s 6(1)(e)
• Limitations Act, SS 2004, c L-16.1, s 16

Rules Considered:

• QB Rule 3-93(2)(b)

Cases Considered:

• AIC Ltd. v Fischer, 2013 SCC 69, [2013] 3 SCR 949, 366 DLR...