Elwin et al. v. Nova Scotia Home for Colored Children et al., (2013) 339 N.S.R.(2d) 35 (SC)

• Judge: LeBlanc, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: July 12, 2013
• Jurisdiction: Nova Scotia
• Citations: (2013), 339 N.S.R.(2d) 35 (SC);2013 NSSC 411

Elwin v. N.S. Home (2013), 339 N.S.R.(2d) 35 (SC);

    1073 A.P.R. 35

MLB headnote and full text

Temp. Cite: [2013] N.S.R.(2d) TBEd. DE.033

June Elwin, Harriet Johnson, and Deanna Smith (plaintiffs) v. The Nova Scotia Home for Colored Children, a body corporate and the Attorney General of Nova Scotia, representing Her Majesty the Queen in right of the Province of Nova Scotia (defendants)

(Hfx. No. 343536; 2013 NSSC 411)

Indexed As: Elwin et al. v. Nova Scotia Home for Colored Children et al.

Nova Scotia Supreme Court

LeBlanc, J.

December 12, 2013.

Summary:

As wards of the province during their childhood, the plaintiffs were each placed in the Nova Scotia Home for Colored Children (the home). Their action alleged that they suffered physical, mental and sexual abuse at the home and sought damages for their injuries. The plaintiffs moved to certify the action as a class action against the province (the home had settled the claim against it).

The Nova Scotia Supreme Court adjourned the motion to permit the plaintiffs to address proposed amendments to the statement of claim and to address the litigation plan.

Editor's Note: For the decision regarding the province's motion to strike a number of statements from the affidavits filed by the plaintiffs, see (2013), 332 N.S.R.(2d) 35; 1052 A.P.R. 35.

Crown - Topic 1785

Torts by and against Crown - Practice - Pleadings - [See second, fourth and fifth Practice - Topic 209.3 ].

Crown - Topic 4427

Actions by and against Crown in right of a province - Proceedings against the Crown Acts - Actions to which Act applicable - As wards of the province during their childhood, the plaintiffs were each placed in the Nova Scotia Home for Colored Children (the home) - Their action alleged that they had suffered physical, mental and sexual abuse at the home and sought damages for their injuries - The plaintiffs moved to certify the action as a class action against the province - At issue was the effect of the Proceedings Against the Crown Act - The province asserted that no action could lie against the Crown for conduct occurring before the Act came into force on November 1, 1951 - The plaintiffs conceded that no remedy in damages was available before that date, but asserted that declaratory relief might be ordered for breach of fiduciary duty by the province or its servants, agents or employees as pled in the statement of claim - The plaintiffs argued that the Act authorized the assertion of tort claims against the Crown, though not equitable claims - Thus, declaratory relief for breach of fiduciary duty was not sought "under" the Act and was not barred - The Nova Scotia Supreme Court held that it was not plain and obvious that the plaintiffs' claim for purely declaratory relief prior to 1951 was bound to fail - See paragraphs 16 to 30.

Crown - Topic 4428

Actions by and against Crown in right of a province - Proceedings against the Crown Acts - Limitations on application of Acts - [See Crown - Topic 4427 ].

Equity - Topic 3993

Fiduciary or confidential relationships - Practice - Pleadings - [See third and fourth 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 - As wards of the province during their childhood, the plaintiffs were each placed in the Nova Scotia Home for Colored Children (the home) - Their action alleged that they had suffered physical, mental and sexual abuse at the home and sought damages for their injuries - The plaintiffs moved to certify the action as a class action against the province - At issue was whether there was "an identifiable class of two or more persons that would be represented by a representative party" (s. 7(1)(b) of the Class Proceedings Act) - The plaintiffs proposed three classes: former residents of the home who had been placed there by (1) the province, (2) children's aid societies and (3) other means - The province asserted that the class period could begin no earlier than the coming into force of the Proceedings Against the Crown Act on November 1, 1951, and that conflict between the class members was a basis on which to find that the class was not sufficiently identifiable - The Nova Scotia Supreme Court held that the s. 7(1)(b) criterion was met - The class period began on November 1, 1951, and ended in 1990 - While there was a potential for conflict, at this stage, the court was unable to conclude that it would render the class unworkable - See paragraphs 101 to 113.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - The plaintiffs moved to certify their action as a class action - At issue was whether the pleadings disclosed a cause of action (s. 7(1)(a) of the Class Proceedings Act) - The Nova Scotia Supreme Court stated that the test under s. 7(1)(a) of the Act was not an analysis of the merits - This requirement was "governed by the rule that a pleading should not be struck for failure to disclose a cause of action unless it is 'plain and obvious' that no claim exists" - Courts were expected to be sensitive to the possibility of amending pleadings - Considering the similarity between the test applied on summary judgment on the pleadings and that under s. 7(1)(a), it was appropriate to apply the same criteria here, although the answer would only need to determine the outcome of the s. 7(1)(a) analysis, not the entire motion for certification - See paragraphs 10 to 15.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - As wards of the province during their childhood, the plaintiffs were each placed in the Nova Scotia Home for Colored Children (the home) - Their action alleged that they had suffered physical, mental and sexual abuse at the home and sought damages for their injuries - The plaintiffs moved to certify the action as a class action against the province - At issue was whether the plaintiffs' allegation that the province had negligently created or maintained a system inadequate to protect the plaintiff class (systemic negligence) disclosed a cause of action (s. 7(1)(a) of the Class Proceedings Act) - The province conceded that the pleadings were sufficient for the plaintiffs who were wards of the province, but asserted that it owed no duty of care to members of the subclasses who were wards of children's aid societies (CASs) or who were placed in the home by other means - The Nova Scotia Supreme Court held that the pleadings did not adequately plead that the CASs were agents of the province or that the home acted as a CAS - No cause of action could therefore be certified regarding the proposed plaintiffs who were placed in the home by a CAS or through other means - This did not foreclose any opportunity for the plaintiffs to seek an amendment for the purpose of making the pleadings sufficient - The certification motion was adjourned to permit the plaintiffs to address amendments to the statement of claim - See paragraphs 31 to 71.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - As wards of the province during their childhood, the plaintiffs were each placed in the Nova Scotia Home for Colored Children (the home) - Their action alleged that they had suffered physical, mental and sexual abuse at the home and sought damages for their injuries - The plaintiffs moved to certify the action as a class action against the province - At issue was whether the plaintiffs' allegation that the province had breached a fiduciary duty to the class members disclosed a cause of action (s. 7(1)(a) of the Class Proceedings Act) - The Nova Scotia Supreme Court held that it was not plain and obvious that the claim would fail - The fact that governments owed fiduciary duties in rare circumstances did not make the claim unsustainable here - The plaintiffs were not required to show that it was obvious that they would succeed - The claim adequately pled that the class members were wards of the province and that the province owed them a fiduciary duty - It was not plain and obvious that the Crown was immunized from liability for decisions that were disloyal to the alleged beneficiaries, even if those were core policy decisions - Further, the plaintiffs had not failed to plead that the province's funding decisions were irrational or made in bad faith - Although those specific words were not used, the claim alleged that these decisions were discriminatory - See paragraphs 72 to 87.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - As wards of the province during their childhood, the plaintiffs were each placed in the Nova Scotia Home for Colored Children (the home) - Their action alleged that they had suffered physical, mental and sexual abuse at the home and sought damages for their injuries - The plaintiffs moved to certify the action as a class action against the province - At issue was whether the plaintiffs' allegation that the province was vicariously liable for the actions of its agents, employees, servant and contractors disclosed a cause of action (s. 7(1)(a) of the Class Proceedings Act) - The province asserted that vicarious liability was a separate cause of action that had not been adequately pled - The Nova Scotia Supreme Court held that the statement of claim adequately pled that the entities listed had harmed the plaintiffs and had adequately asserted vicarious liability against the province in breach of fiduciary duty and systemic negligence - However, vicarious liability was not adequately pled if the plaintiffs sought to hold the province accountable for the actions of the home in breach of fiduciary duty - The court had rejected the claim that an agency relationship had existed between the province and the home - The plaintiffs were entitled to seek an amendment to the claim to effect an appropriate basis on which to advance the claim - See paragraphs 88 to 92.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - As wards of the province during their childhood, the plaintiffs were each placed in the Nova Scotia Home for Colored Children (the home) - Their action alleged that they had suffered physical, mental and sexual abuse at the home and sought damages for their injuries - The plaintiffs moved to certify the action as a class action against the province - At issue was whether the plaintiffs' allegation that the province had owed the class members a non-delegable duty of care that had been breached by various child protection agencies disclosed a cause of action (s. 7(1)(a) of the Class Proceedings Act) - The Nova Scotia Supreme Court held that the material facts necessary to make out a violation of the alleged statutory duties had not been pled - More importantly, the pleadings never set out how the requirements of the various Acts had been breached - The plaintiffs had to plead the material facts to show that the duties were owed to them - The pleadings amounted to an assertion of law without the support of material facts - The plaintiffs were entitled to seek an amendment to the claim to effect an appropriate basis on which to advance the claim - See paragraphs 93 to 99.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - As wards of the province during their childhood, the plaintiffs were each placed in the Nova Scotia Home for Colored Children (the home) - Their action alleged that they had suffered physical, mental and sexual abuse at the home and sought damages for their injuries - The plaintiffs moved to certify the action as a class action against the province - At issue was whether "the claims of the class members raise a common issue, whether or not the common issue predominates over issues affecting only individual members" (s. 7(1)(c) of the Class Proceedings Act) - The Nova Scotia Supreme Court held that the common issues advanced met the requirements of s. 7(1)(c) - The common issues could be resolved without reference to the claims of individual plaintiffs - They were concerned with the determination of the duties allegedly owed to the plaintiffs by the province and with the form in which liability might take - Whether the province owed a duty of care or a fiduciary duty to the class members could be determined without reference to the individuals - Similarly, whether the province breached any such duties was a question of the province's acts and omissions, as was the related issue of whether such conduct called for punitive or aggravated damages - The question of vicarious liability was, similarly, one that could be dealt with without reference to individual claimants - Moreover, the determination of the common issues would be determinative of the defendant's liability - See paragraphs 114 to 129.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - As wards of the province during their childhood, the plaintiffs were each placed in the Nova Scotia Home for Colored Children (the home) - Their action alleged that they had suffered physical, mental and sexual abuse at the home and sought damages for their injuries - The plaintiffs moved to certify the action as a class action against the province - At issue was whether a class proceeding was the preferable procedure for a fair and efficient resolution of the dispute (s. 7(1)(d) of the Class Proceedings Act) - The Nova Scotia Supreme Court held that a class proceeding was the preferable procedure - The nature of the allegations led to the conclusion that the common issues prevailed over the individual issues - It had proven unwieldy to litigate the plaintiffs' claims individually - Only 56 of the 63 original claimants remained alive - There was little evidence to suggest that any significant number of class members would proceed individually - Further, the institutional setting indicated that other means of resolving the claims would be less practical and efficient - See paragraphs 130 to 143.

Practice - Topic 209.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Appointment or replacement of representative plaintiff - As wards of the province during their childhood, the plaintiffs were each placed in the Nova Scotia Home for Colored Children (the home) - Their action alleged that they had suffered physical, mental and sexual abuse at the home and sought damages for their injuries - The plaintiffs moved to certify the action as a class action against the province - At issue was whether the three representative plaintiffs met the requirements of s. 7(1)(e) of the Class Proceedings Act - The province asserted that the proposed representative plaintiffs did not meet the s. 7(1)(e) requirements on the basis of conflict of interest (one proposed plaintiff alleged that she had been abused by other residents of the home) and absence of a cause of action against the province - The Nova Scotia Supreme Court noted that the representative plaintiffs had all pled that they had been wards of the province - This was sufficient to underpin a cause of action - Further, it would be speculative to find that a disqualifying conflict of interest existed at this stage - A disqualifying conflict of interest did not arise from a mere possibility that the common issues would have a different impact on different class members - Finally, the claims against the province were systemic ones - See paragraphs 144 to 152.

Practice - Topic 209.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Appointment or replacement of representative plaintiff - As wards of the province during their childhood, the plaintiffs were each placed in the Nova Scotia Home for Colored Children (the home) - Their action alleged that they had suffered physical, mental and sexual abuse at the home and sought damages for their injuries - The plaintiffs moved to certify the action as a class action against the province - At issue was whether the three representative plaintiffs met the requirements of s. 7(1)(e) of the Class Proceedings Act - The province asserted that the proposed representative plaintiffs lacked a workable litigation plan - The Nova Scotia Supreme Court agreed that the litigation plan was in need of refinement before it could be considered a workable one - However, the current deficiencies in the plan did not lead to a complete dismissal of the certification motion where the other factors supported at least partial certification - The certification motion was adjourned to permit the plaintiffs to address the litigation plan - See paragraphs 153 to 171.

Cases Noticed:

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, refd to. [para. 4].

Taub v. Manufacturers Life Insurance Co. (1998), 40 O.R.(3d) 379 (Gen. Div.), affd. (1999), 42 O.R.(3d) 576 (Div. Ct.), refd to. [para. 7].

Morrison Estate v. Nova Scotia (Attorney General) (2011), 306 N.S.R.(2d) 124; 968 A.P.R. 124; 2011 NSCA 68, refd to. [para. 10].

Elder Advocates of Alberta Society et al. v. Alberta et al. (2011), 416 N.R. 198; 499 A.R. 345; 514 W.A.C. 345; 2011 SCC 24, refd to. [para. 10].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 11].

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

Cape Breton (Regional Municipality) v. Nova Scotia (Attorney General) (2009), 277 N.S.R.(2d) 350; 882 A.P.R. 350; 2009 NSCA 44, refd to. [para. 12].

MacQueen et al. v. Nova Scotia et al. (2013), 338 N.S.R.(2d) 133; 1071 A.P.R. 133; 2013 NSCA 143, refd to. [para. 13].

Cloud v. Canada (Attorney General) (2003), 65 O.R.(3d) 492 (Div. Ct.), revd. (2004), 192 O.A.C. 239; 247 D.L.R.(4th) 667 (C.A.), leave to appeal denied (2005), 344 N.R. 192; 207 O.A.C. 400 (S.C.C.), refd to. [para. 18].

Richard et al. v. British Columbia, [2008] B.C.T.C. Uned. 120; 2008 BCSC 254, affd. (2009), 270 B.C.A.C. 61; 454 W.A.C. 61; 2009 BCCA 185, refd to. [para. 19].

M.D. et al. v. Ontario, [2010] O.T.C. Uned. 1726; 2010 ONSC 1726, leave to appeal refused 2010 ONSC 6131 (Div. Ct.), refd to. [para. 21].

Slark v. Ontario - see M.D. et al. v. Ontario.

Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) (1995), 137 N.S.R.(2d) 197; 391 A.P.R. 197 (C.A.), refd to. [para. 22].

MacNeil v. Nova Scotia Board of Censors (1974), 9 N.S.R.(2d) 483; 1974 CarswellNS 161 (C.A.), affd. [1976] 2 S.C.R. 265; 5 N.R. 43; 12 N.S.R.(2d) 85; 6 A.P.R. 85, refd to. [para. 24].

Tuxedo Holding Co. v. University of Manitoba, [1930] 3 D.L.R. 250 (Man. C.A.), refd to. [para. 26].

Dyson v. Attorney General, [1911] K.B. 410 (C.A.), refd to. [para. 27].

S.M. v. Ontario et al. (2003), 175 O.A.C. 61; 67 O.R.(3d) 97 (C.A.), refd to. [para. 30].

R. v. Popovic and Askov, [1976] 2 S.C.R. 308; 7 N.R. 231, refd to. [para. 30].

Matoni et al. v. C.B.S. Interactive Multimedia Inc. et al., [2008] O.T.C. Uned. 166; 2008 CarswellOnt 228 (Sup. Ct.), refd to. [para. 33].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 37].

Broome et al. v. Prince Edward Island (2009), 282 Nfld. & P.E.I.R. 61; 868 A.P.R. 61; 2009 PECA 1, affd. (2010), 400 N.R. 148; 297 Nfld. & P.E.I.R. 24; 918 A.P.R. 24; 2010 SCC 11, refd to. [para. 41].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 60].

Great Northern Piccadilly and Brompton Railway Co. v. Attorney General, [1909] A.C. 1 (H.L.), refd to. [para. 69].

Dwyer v. Port Arthur (Town) (1893), 22 S.C.R. 241, refd to. [para. 69].

St. Hyacinthe Gas Co. v. St. Hyacinthe Hydraulic Power Co. (1895), 25 S.C.R. 168, refd to. [para. 69].

Ottawa (City) v. Royal Trust Co., [1964] S.C.R. 526, refd to. [para. 69].

J.A.C. et al. v. Atlantic Provinces Special Education Authority (2008), 275 N.S.R.(2d) 36; 877 A.P.R. 36; 2008 NSCA 94, refd to. [para. 72].

Cooper v. Atlantic Provinces Special Education Authority - see J.A.C. et al. v. Atlantic Provinces Special Education Authority.

Professional Institute of the Public Service of Canada et al. v. Canada (Attorney General) (2012), 438 N.R. 1; 300 O.A.C. 202; 2012 SCC 71, refd to. [para. 74].

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, refd to. [para. 77].

Brown v. British Columbia (Minister of Transportation and Highways), [1994] 1 S.C.R. 420; 164 N.R. 161; 42 B.C.A.C. 1; 67 W.A.C. 1, refd to. [para. 85].

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. 93].

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; 2001 SCC 46, refd to. [para. 101].

MacQueen et al. v. Nova Scotia et al. (2011), 311 N.S.R.(2d) 354; 985 A.P.R. 354; 2011 NSSC 484, refd to. [para. 103].

R.S. v. Ontario, [2012] O.T.C. Uned. 2681; 2012 ONSC 2681, refd to. [para. 106].

Seed v. Ontario - see R.S. v. Ontario.

W.P. et al. v. Alberta et al. (2013), 563 A.R. 47; 2013 ABQB 296, refd to. [para. 107].

Parker et al. v. Alberta et al. - see W.P. et al. v. Alberta et al.

Nixon v. Canada (Attorney General), [2002] O.T.C. 192; 21 C.P.C.(5th) 269 (Sup. Ct.), refd to. [para. 109].

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; 2001 SCC 69, refd to. [para. 111].

Rumley et al. v. British Columbia, [1998] B.C.T.C. Uned. F79; 25 C.P.C.(4th) 186 (Sup. Ct.), varied in part (1999), 131 B.C.A.C. 68; 214 W.A.C. 68; 1999 BCCA 689, refd to. [para. 111].

Fulawka v. Bank of Nova Scotia (2012), 293 O.A.C. 204; 2012 ONCA 443, refd to. [para. 116].

Griffith v. Winter et al., [2002] B.C.T.C. 1219; 2002 BCSC 1219, affd. (2003), 184 B.C.A.C. 121; 302 W.A.C. 121; 2003 BCCA 367, refd to. [para. 134].

Anderson et al. v. Canada (Attorney General) et al. (2010), 298 Nfld. & P.E.I.R. 289; 921 A.P.R. 289; 2010 NLTD(G) 106, affd. (2011), 315 Nfld. & P.E.I.R. 314; 981 A.P.R. 314; 2011 NLCA 82, refd to. [para. 137].

Bryson et al. v. Canada (Attorney General) et al. (2009), 353 N.B.R.(2d) 1; 910 A.P.R. 1; 2009 NBQB 204, refd to. [para. 140].

Graham et al. v. Imperial Parking Canada Corp., [2010] O.T.C. Uned. 4982; 2010 ONSC 4982, leave to appeal denied (2011), 279 O.A.C. 342; 2011 ONSC 991 (Div. Ct.), refd to. [para. 148].

T.L. v. Director of Child Welfare (Alta.) (2008), 436 A.R. 217; 2008 ABQB 114, affd. (2009), 457 A.R. 141; 457 W.A.C. 141; 2009 ABCA 182, refd to. [para. 150].

Komoyue Heritage Society et al. v. British Columbia (Attorney General) et al., [2006] B.C.T.C. 1517; 2006 BCSC 1517, refd to. [para. 150].

Mignacca et al. v. Merck Frosst Canada Ltd. et al., [2008] O.T.C. Uned. F58; 295 D.L.R.(4th) 32 (Sup. Ct.), affd. (2009), 247 O.A.C. 322; 95 O.R.(3d) 269 (Div. Ct.), refd to. [para. 152].

Tiboni v. Merck Frosst Canada Ltd. et al. - see Mignacca et al. v. Merck Frosst Canada Ltd. et al.

Caponi v. Canada Life Assurance Co. et al., [2009] O.T.C. Uned. 29; 72 C.P.C.(6th) 331 (Sup. Ct.), refd to. [para. 152].

Fakhri et al. v. Capers Community Markets, [2003] B.C.T.C. 1717; 2003 BCSC 1717, affd. (2004), 203 B.C.A.C. 227; 332 W.A.C. 227; 2004 BCCA 549, refd to. [para. 153].

Pearson v. Inco Ltd. et al. (2005), 205 O.A.C. 30; 261 D.L.R.(4th) 629 (C.A.), leave to appeal denied (2006), 357 N.R. 394; 225 O.A.C. 397 (S.C.C.), refd to. [para. 159].

Pardy et al. v. Bayer Inc. (2004), 237 Nfld. & P.E.I.R. 179; 703 A.P.R. 179; 2004 NLSCTD 72, leave to appeal denied (2005), 246 Nfld. & P.E.I.R. 157; 731 A.P.R. 157; 2005 NLCA 20, leave to appeal denied (2005), 348 N.R. 199; 257 Nfld. & P.E.I.R. 359; 776 A.P.R. 359 (S.C.C.), refd to. [para. 160].

Wheadon v. Bayer Inc. - see Pardy et al. v. Bayer Inc.

LeFrancois et al. v. Guidant Corp. et al., [2008] O.T.C. Uned. A21; 56 C.P.C.(6th) 268 (Sup. Ct.), refd to. [para. 161].

Andersen et al. v. St. Jude Medical Inc. et al., [2004] O.T.C. 30; 48 C.P.C.(5th) 312 (Sup. Ct.), refd to. [para. 162].

Sharbern Holding Inc. v. Vancouver Airport Centre Ltd. et al., [2005] B.C.T.C. Uned. 369; 2005 BCSC 896, refd to. [para. 163].

Carom et al. v. Bre-X Minerals Ltd. et al. (1999), 98 O.T.C. 1; 44 O.R.(3d) 173; 1999 CarswellOnt 1456 (Sup. Ct.), affd. (1999), 46 O.R.(3d) 315 (Div. Ct.), revd. (2000), 138 O.A.C. 55; 196 D.L.R.(4th) 344 (C.A.), leave to appeal denied (2001), 283 N.R. 399; 157 O.A.C. 399 (S.C.C.), refd to. [para. 163].

R. v. Phaneuf (S.), [2009] O.J. No. 5618 (Div. Ct.), affd. (2010), 275 O.A.C. 160; 2010 ONCA 901, refd to. [para. 165].

Schwoob v. Bayer Inc., 2013 ONSC 2207, refd to. [para. 166].

Sorotski v. CNH Global N.V. et al. (2007), 304 Sask.R. 83; 413 W.A.C. 83; 2007 SKCA 104, leave to appeal denied (2008), 385 N.R. 397; 324 Sask.R. 319; 451 W.A.C. 319 (S.C.C.), refd to. [para. 168].

Authors and Works Noticed:

Côté, Pierre-André, Interpretation of Legislation in Canada (2nd Ed. 1991), p. 195 [para. 69].

Robertson, George Stuart, The Law and Practice of Civil Proceedings By and Against the Crown (1908), p. 477 [para. 26].

Sarna, Lazar, The Law of Declaratory Judgments (3rd Ed. 2007), pp. 27, 28 [para. 28].

Counsel:

Ray Wagner, Q.C., and Michael Dull, for the plaintiff;

Catherine Lunn and Peter McVey, for the defendant, Attorney General of Nova Scotia;

John Kulik, Q.C., and Ward Branch, for the defendant, Nova Scotia Home for Colored Children - Appearing on settlement as between plaintiffs and the Nova Scotia Home for Colored Children.

This motion was heard at Halifax, Nova Scotia, between March 28 and July 12, 2013, by LeBlanc, J., of the Nova Scotia Supreme Court, who delivered the following decision on December 12, 2013.