Gottfriedson et al. v. Canada et al., (2013) 443 F.T.R. 308 (FC)

• Judge: Harrington, J.
• Court: Federal Court (Canada)
• Case Date: November 26, 2103
• Jurisdiction: Canada (Federal)
• Citations: (2013), 443 F.T.R. 308 (FC);2013 FC 1213

Gottfriedson v. Can. (2013), 443 F.T.R. 308 (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. DE.015

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 Poulsen (plaintiffs) v. Her Majesty the Queen in Right of Canada (defendant) and the Order of the Oblates of Mary Immaculate in the Province of British Columbia, the Roman Catholic Archbishop of Vancouver, the Roman Catholic Bishop of Kamloops, the Sisters of Instruction of the Child Jesus, and the Sisters of Saint Ann (third parties)

(T-1542-12; 2013 FC 1213; 2013 CF 1213)

Indexed As: Gottfriedson et al. v. Canada et al.

Federal Court

Harrington, J.

December 4, 2013.

Summary:

The plaintiffs 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, in a decision reported  (2013), 433 F.T.R. 133, held that it had jurisdiction over the Crown's proposed third party proceedings and dismissed the motion. The court granted the plaintiffs leave to amend their statement of claim to make it clear that no compensation was being sought from the Crown with respect to any fault attributable to the religious orders. The plaintiffs amended their statement of claim accordingly. The Crown third partied various religious orders, seeking contribution and indemnity. The third parties moved to have the action against them struck on the basis that even if the allegations therein were true, Canada had no claim against them as the plaintiffs only sought redress against Canada severally to the extent it was liable to them, and it was unable to flow that liability through to the third parties in whole or in part by way of contribution or indemnity. The plaintiffs supported the motion.

The Federal Court allowed the motion and struck the third party claim in its entirety without leave to amend.

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters - Pleadings - 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 proposed class action) - No compensation was sought from the Crown respecting any fault attributable to the religious orders that had been involved in the schools' operation - The Crown third partied the religious orders, seeking contribution and indemnity - The third parties moved to strike the action against them - The plaintiffs supported the motion - The Federal Court allowed the motion - Although the motion preceded the certification motion, it was not premature - Making the decision now was in the interests of judicial economy and efficiency and would promote the fair and efficient determination of the proceedings - It was plain and obvious that Canada lacked a cause of action against the religious orders - The religious orders were not necessary parties as the court could make a declaration as to the liability of non-parties and Canada would have access to their documents and would be entitled to examine them for discovery - The court disagreed that leaving the religious orders"off the hook" would put the administration of justice in disrepute - The plaintiffs had the right to spend their litigation dollars as they chose - Further, those plaintiffs who might have suffered sexual abuse at the hands of those for whom the religious orders might be vicariously liable were entitled to file claims under the Independent Assessment Process - Finally, many of the plaintiffs were elderly and it was time to get on with it.

Practice - Topic 1121

Parties - Third party or subsequent party procedure - When available - Claim for contribution or indemnity - [See Practice - Topic 210.5 ].

Practice - Topic 2210

Pleadings - Striking out pleadings - Time for objection or application - [See Practice - Topic 210.5 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action - [See Practice - Topic 210.5 ].

Practice - Topic 2248

Pleadings - Striking out pleadings - Bars - Application premature - [See Practice - Topic 210.5 ].

Cases Noticed:

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 5].

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. 6].

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. 15].

Taylor v. Canada (Minister of Health) et al. (2009), 264 O.A.C. 229; 309 D.L.R.(4th) 400; 2009 ONCA 487, refd to. [para. 15].

Sable Offshore Energy Inc. et al. v. Ameron International Corp. et al. (2013), 332 N.S.R.(2d) 1; 329 N.S.R.(2d) 205; 1052 A.P.R. 1; 2013 SCC 37, refd to. [para. 15].

Baxter v. Canada (Attorney General) et al., [2005] O.T.C. 391 (Sup. Ct.), refd to. [para. 37].

Campbell et al. v. Canada (Attorney General) et al., [2008] F.T.R. Uned. 233; 2008 FC 353, refd to. [para. 40].

Momi et al. v. Canada (Minister of Citizenship and Immigration) (2005), 283 F.T.R. 143; 2005 FC 1484, refd to. [para. 42].

Cannon v. Funds for Canada Foundation et al., [2010] O.T.C. Uned. 146; 2010 ONSC 416, refd to. [para. 43].

Counsel:

John Kingman Phillips and Peter R. Grant, for the plaintiffs;

Michael Doherty and Kelli Bodnar, for the defendant;

F. Mark Rowan and Michael Drouillard, for the third parties, the Order of the Oblates of Mary Immaculate in the Province of British Columbia, the Roman Catholic Archbishop of Vancouver, the Sisters of Saint Ann and the Roman Catholic Bishop of Kamloops;

Patrick F. Lewis and Jessie I. Meikle-Kahs, for the third party, the Sisters of Instruction of the Child Jesus.

Solicitors of Record:

Phillips Gill LLP, for the plaintiffs;

Peter Grant & Associates, for the defendants;

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

Affleck Hira Burgoyne LLP, for the third parties, the Order of the Oblates of Mary Immaculate in the Province of British Columbia, the Roman Catholic Archbishop of Vancouver, the Sisters of Saint Ann and the Roman Catholic Bishop of Kamloops;

Morelli Chertkow LLP, for the third party, the Roman Catholic Bishop of Kamloops;

Sugden, McFee & Roos LLP, for the third party, the Sisters of Instruction of the Child Jesus.

This motion was heard at Vancouver, British Columbia, on November 26, 2103, by Harrington, J., of the Federal Court, who delivered the following reasons for order on December 4, 2013.