Gottfriedson et al. v. Canada, (2013) 433 F.T.R. 133 (FC)

• Judge: Harrington, J.
• Court: Federal Court (Canada)
• Case Date: May 02, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 433 F.T.R. 133 (FC);2013 FC 546

Gottfriedson v. Can. (2013), 433 F.T.R. 133 (FC)

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: [2013] F.T.R. TBEd. JN.022

Chief Shane Gottfriedson, on his own behalf and on behalf of all the members of the Tk'emlúps Te Secwépemc Indian Band and the Tk'emlúps Te Secwépemc Indian Band, Chief Garry Feschuk, on his own behalf and on behalf of all members of the Sechelt Indian Band and the Sechelt Indian Band, Violet Catherine Gottfriedson, Doreen Louise Seymour, Charlotte Anne Victorine Gilbert, Victor Fraser, Diena Marie Jules, Amanda Deanne Big Sorrel Horse, Darlene Matilda Bulpit, Frederick Johnson, Abigail Margaret August, Shelly Nadine Hoehne, Daphne Paul, Aaron Joe and Rita Poulson (plaintiffs) v. Her Majesty the Queen in Right of Canada as represented by the Attorney General of Canada (defendant)

(T-1542-12; 2013 FC 546; 2013 CF 546)

Indexed As: Gottfriedson et al. v. Canada

Federal Court

Harrington, J.

May 24, 2013.

Summary:

The plaintiff sued Her Majesty in Right of Canada in the Federal Court for damages suffered as a result of children being forced to attend the Kamloops and Sechelt Indian Residential Schools as day pupils. The Crown moved under s. 50.1 of the Federal Court Act to have the action stayed as it intended to invoke the British Columbia Negligence Act and claim indemnity from the religious orders involved in their operation. Section 50.1 required the court to stay the principal action where the Crown desired to institute a counterclaim or third party proceedings in respect of which the Federal Court lacked jurisdiction.

The Federal Court held that it had jurisdiction over the Crown's proposed third party proceedings and dismissed the motion.

Courts - Topic 4019

Federal Court of Canada - Jurisdiction - Trial Division - Existing federal law or laws of Canada - The plaintiffs sued the federal Crown for damages suffered as a result of children being forced to attend Indian residential schools as day pupils - The Crown moved under s. 50.1 of the Federal Courts Act to stay the action as it intended to invoke the British Columbia Negligence Act and claim indemnity from the religious orders involved in the school's operation - Section 50.1 required the court to stay the principal action if it lacked jurisdiction over the third party proceedings - The Federal Court, in dismissing the motion, held that it had jurisdiction over the Crown's action against the religious orders - The jurisdiction derived from the court's overall jurisdiction, including its jurisdiction over the Crown as a litigant - Although the administration of justice, including the establishment of courts, was a matter for the provinces, the court was established as an additional court for the better administration of the laws of Canada (Constitution Act, 1867, s. 101) - The court also had concurrent original jurisdiction over an action against the Crown (Federal Courts Act, s. 17(1)) - Two sources of federal law, within the meaning of s. 101 of the Constitution Act were essential to the case's disposition: the Indian Act and the sui generis relationship between the Crown and Aboriginal peoples, which put into play the Crown's honour - Quite apart from s. 35(1) of the Charter, matters involving the Crown's honour respecting Aboriginals formed part of the federal law - The Crown's honour was always at stake in its dealing with aboriginals - See paragraphs 10 to 28.

Courts - Topic 4019

Federal Court of Canada - Jurisdiction - Trial Division - Existing federal law or laws of Canada - The plaintiff sued the federal Crown for damages suffered as a result of children being forced to attend Indian residential schools as day pupils - The Crown moved under s. 50.1 of the Federal Courts Act to have the action stayed as it intended to invoke the British Columbia Negligence Act and claim indemnity from the religious orders involved in their operation - Section 50.1 required the court to stay the principal action if it lacked jurisdiction over the third party proceedings - The Federal Court, in dismissing the motion, held that the tri-partite test for jurisdiction was met with respect to the proposed third parties - Firstly, s. 17(5)(a) of the Federal Courts Act gave the Federal Court concurrent original jurisdiction in proceedings of a civil nature in which the Crown claimed relief - Secondly, from the federal common law of contributory negligence, which was a law of Canada within the meaning of s. 101 of the Constitution Act, 1867, and which was essential to and at the pith and substance of the third party proceedings, the religious order had been retained on behalf of the Crown pursuant to s. 114 of the Indian Act, to educate the day pupils - The Indian Act was an existing body of federal law, which were laws of Canada, essential to the disposition of the case - Thirdly, the third party claim was based on common law tort arising from federal, not provincial, law - The religious orders were acting on the Crown's behalf and were required to act honourably - Section 35 of the Charter applied - Non-government organization exercising delegated government powers or implementing government policy were, in carrying out those powers, part of government - See paragraphs 29 to 39.

Courts - Topic 4028

Federal Court of Canada - Jurisdiction -Federal Court - Claims against Crown and related claims - [See first Courts - Topic 4019 ].

Courts - Topic 4033.6

Federal Court of Canada - Jurisdiction - Federal Court - Stay of proceedings - Where Crown desires to institute a counter-claim or third party proceedings over which the Federal Court lacks jurisdiction - [See both Courts - Topic 4019 ].

Courts - Topic 4037

Federal Court of Canada - Jurisdiction - Federal Court - Administration of justice in province - [See first Courts - Topic 4019 ].

Courts - Topic 4054

Federal Court of Canada - Jurisdiction - Federal Court - Indians, Inuit and Métis - [See both Courts - Topic 4019 ].

Courts - Topic 4039

Federal Court of Canada - Jurisdiction - Trial Division - Civil actions - [See both Courts - Topic 4019 ].

Practice - Topic 1138

Parties - Third party or subsequent party procedure - Third party notice - Striking out of - The plaintiff sued the federal Crown for damages suffered as a result of children being forced to attend Indian residential schools as day pupils - The Crown moved under s. 50.1 of the Federal Courts Act to have the action stayed as it intended to invoke the British Columbia Negligence Act and claim indemnity from the religious orders involved in their operation - Section 50.1 required the court to stay the principal action if it lacked jurisdiction over the third party proceedings - The plaintiffs asserted that they intend to amend the statement of claim to limit their recovery from the Crown to the extent that it was severally liable (i.e., to the extent that it was liable and not entitled to indemnity from the proposed third parties) - The Federal Court held that it was premature to strike a third party statement of claim before it was filed - Were it not for the Crown's concern that the court lacked jurisdiction over its proposed third party claim, the Crown could have commenced third party proceedings as of right - See paragraphs 41 to 48.

Cases Noticed:

Canadian Pacific Ltd. and Incan Ships Ltd. v. Quebec North Shore Paper Co. and Quebec and Ontario Transportation Co., [1977] 2 S.C.R. 1054; 9 N.R. 471, refd to. [para. 14].

Canada v. McNamara Construction (Western) Ltd. et al., [1977] 2 S.C.R. 654; 13 N.R. 181, refd to. [para. 20].

Associated Metals & Minerals Corp. v. Ship Evie W et al., [1978] 2 F.C. 710; 20 N.R. 50 (F.C.A.), affd. [1980] 2 S.C.R. 322; 31 N.R. 584, refd to. [para. 22].

Sivaco Wire & Nail Co. and Atlantic Lines & Navigation Co. v. Tropwood A.G. and Owners of Vessel Tropwood, [1979] 2 S.C.R. 157; 26 N.R. 313, refd to. [para. 22].

Miida Electronics Inc. v. Mitsui O.S.K. Lines Ltd. and ITO-International Terminal Operators Ltd., [1986] 1 S.C.R. 752; 68 N.R. 241, refd to. [para. 22].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, refd to. [para. 28].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81, refd to. [para. 28].

Mitchell v. Minister of National Revenue, [2001] 1 S.C.R. 911; 269 N.R. 207; 2001 SCC 33, refd to. [para. 28].

Kellogg Co. v. Kellogg, [1941] S.C.R. 242, refd to. [para. 31].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269, refd to. [para. 33].

Chartwell Shipping Ltd. v. Q.N.S. Paper Co., [1989] 2 S.C.R. 683; 101 N.R. 1; 26 Q.A.C. 81, refd to. [para. 34].

Canadian National Railway Co. et al. v. Norsk Pacific Steamship Co. and Tug Jervis Crown et al., [1992] 1 S.C.R. 1021; 137 N.R. 241; 91 D.L.R.(4th) 289, refd to. [para. 34].

London Drugs Ltd. v. Brassart and Vanwinkle, [1992] 3 S.C.R. 299; 143 N.R. 1; 18 B.C.A.C. 1; 31 W.A.C. 1, refd to. [para. 34].

Fraser River Pile & Dredge Ltd. v. Can-Dive Services Ltd., [1999] 3 S.C.R. 108; 245 N.R. 88; 127 B.C.A.C. 287; 207 W.A.C. 287, refd to. [para. 34].

Terrasses Jewellers Inc. v. Triglav, [1983] 1 S.C.R. 283; 54 N.R. 321, refd to. [para. 34].

Canada v. Prytula; Canada v. Rhine, [1980] 2 S.C.R. 442; 34 N.R. 290, refd to. [para. 36].

Kigowa v. Minister of National Revenue et al., [1990] 1 F.C. 804; 105 N.R. 278 (F.C.A.), refd to. [para. 39].

White (Peter G.) Management Ltd. v. Canada (Minister of Canadian Heritage) et al., [2007] 2 F.C.R. 475; 350 N.R. 113; 2006 FCA 190, refd to. [para. 39].

Stoney Indian Band et al. v. Canada (Minister of Indian Affairs and Northern Development), [2006] 1 F.C.R. 570; 337 N.R. 265; 2005 FCA 220, refd to. [para. 39].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 39].

British Columbia Ferry Corp. et al. v. T & N plc et al., [1996] 4 W.W.R. 161; 65 B.C.A.C. 118; 106 W.A.C. 118 (C.A.), refd to. [para. 42].

Taylor v. Canada (Minister of Health) et al. (2009), 264 O.A.C. 229; 2009 ONCA 487, refd to. [para. 43].

TeleZone Inc. v. Canada (Attorney General), [2010] 3 S.C.R. 585; 410 N.R. 1; 273 O.A.C. 1; 2010 SCC 62, refd to. [para. 45].

Dobbie et al. v. Canada (Attorney General) et al. (2006), 291 F.T.R. 271; 2006 FC 552, refd to. [para. 47].

Counsel:

John Kingman Phillips, Patric Senson, Peter R. Grant and Len Marchand, for the plaintiffs;

Michael Doherty and Kelli Bodnar, for the defendant;

F. Mark Rowan, for the proposed third parties (The Order of the Oblates of Mary Immaculate in the Province of B.C., The Archbishop of Vancouver and The Sisters of Saint Ann and The Archbishop of the Roman Catholic Archdiocese of Vancouver);

John M. Hogg, Q.C., for the proposed third parties (The Roman Catholic Bishop of Kamloops/The Roman Catholic Bishop of Kamloops Corporation Sole);

Patrick F. Lewis, for the proposed third party (Sisters of Instruction of the Child Jesus).

Solicitors of Record:

Phillips Gill LLP, for the plaintiffs;

Fulton & Company LLP, for the plaintiffs;

Peter Grant & Associates, for the plaintiffs;

William F. Pentney, Deputy Attorney General of Canada, Vancouver, British Columbia, for the defendant;

Affleck Hira Burgoyne LLP, for the proposed third parties (The Order of the Oblates of Mary Immaculate in the Province of B.C., The Archbishop of Vancouver and The Sisters of Saint Ann and The Archbishop of the Roman Catholic Archdiocese of Vancouver);

Morelli Chertkow LLP, for the proposed third parties (The Roman Catholic Bishop of Kamloops/The Roman Catholic Bishop of Kamloops Corporation Sole);

Sugden, McFee & Room LLP, for the proposed third party (Sisters of Instruction of the Child Jesus).

This motion was heard at Vancouver, British Columbia, on May 2, 2013, by Harrington, J., of the Federal Court, who delivered the following reasons for order on May 24, 2013.