Indian Residential Schools, Re,

• Judge: McClung, Berger and Wittmann, JJ.A.
• Neutral Citation: 2001 ABCA 216
• Citation: (2001), 286 A.R. 307 (CA),2001 ABCA 216,204 DLR (4th) 80,[2002] 1 WWR 272,286 AR 307,96 Alta LR (3d) 16,[2001] AJ No 1127 (QL),12 CPC (5th) 80,253 WAC 307,(2001), 286 AR 307 (CA),[2001] A.J. No 1127 (QL),286 A.R. 307,253 W.A.C. 307,204 D.L.R. (4th) 80
• Date: 28 August 2001
• Court: Court of Appeal (Alberta)

Indian Residential Schools, Re (2001), 286 A.R. 307 (CA);

    253 W.A.C. 307

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. SE.003

John Doe No. 1 (respondent/first plaintiff), W. Doe (second plaintiff/not a party to the appeal), C. Doe No. 1 and C. Doe No. 2 (third plaintiffs/not a party to the appeal), Her Majesty The Queen in Right of Canada (first defendant/not a party to the appeal), Les Missionaires de Marie Immaculée (Missionary oblates of Mary Immaculate), operating the name Missionary Oblates of Mary Immaculate, Grandin Province (second defendant/not a party to the appeal), the Sisters of Charity of Providence of Western Canada (third defendant/not a party to the appeal), the Catholic Archdiocese of Grouard-McLennan (appellant/fourth defendant) and the Roman Catholic Church (fifth defendant/not a party to the appeal)

(0003 0134 AC; 2001 ABCA 216)

Indexed As: Indian Residential Schools, Re

Alberta Court of Appeal

McClung, Berger and Wittmann, JJ.A.

August 28, 2001.

Summary:

The plaintiff John Doe 1, a former resident of what were then called Indian residential schools, sued Her Majesty the Queen in Right of Canada, the Oblate Missionaries, the Sisters of Charity, the Catholic Archdiocese of Grouard-McLennan and the Roman Catholic Church. Doe alleged that as a result of the defendants' negligence, breach of trust, and breach of fiduciary duty, he was subjected to unlawful confinement, physical and sexual abuse. Doe's wife and children claimed that as a result of the alleged abuse, they suffered financial loss. Further, because of the defendants' actions, Doe could not express affection. This negatively impacted on Doe's ability to provide them companionship and guidance as well as impairing their emotional health and well-being. The Archdiocese of Grouard-McLennan applied to strike: (1) the claims of Doe's wife and children on the ground that they disclosed no cause of action; and (2) the Roman Catholic Church as a defendant on the ground that it was not a legal entity capable of being sued, or alternatively, to set aside the purported substitutional service of the Church on the applicant.

The Alberta Court of Queen's Bench, in a decision reported 258 A.R. 377, struck the claims of Doe's wife and children. The court declined to strike the Roman Catholic Church as a defendant stating that the application was premature. The Archdiocese of Grouard-McLennan appealed the decision not to strike the Roman Catholic Church as a defendant.

The Alberta Court of Appeal allowed the appeal.

Editor's note: for a related decision see [1999] A.R. Uned. 577 (Q.B.).

Conflict of Laws - Topic 9207

Practice - Status to sue - The plaintiff John Doe 1, a resident of what were then called Indian residential schools, sued a number of defendants, including the Catholic Archdiocese of Grouard-McLennan and the Roman Catholic Church - The Archdiocese of Grouard-McLennan unsuccessfully applied to strike the defendant Roman Catholic Church - The Archdiocese of Grouard-McLennan appealed, asserting that the Roman Catholic Church (or hierarchy), being an unincorporated religious association of its adherents, was not a legal entity at law, nor was it a legal person or an entity that was otherwise recognized by statute - Consequently, an action could not be sustained against it - The plaintiff asserted that the Church could possibly qualify as a foreign entity which was recognized as a juridical person in its home jurisdiction, and therefore could possibly be sued in Alberta - However, evidence of this issue was best left to trial - The Alberta Court of Appeal rejected the plaintiff's argument, allowed the appeal, and struck the Roman Catholic Church as a defendant - See paragraphs 24 to 33.

Practice - Topic 267

Persons who can sue and be sued - Legal personality - Churches - The plaintiff John Doe 1, a resident of what were then called Indian residential schools, sued a number of defendants, including the Catholic Archdiocese of Grouard-McLennan and the Roman Catholic Church - The Archdiocese of Grouard-McLennan applied to strike the defendant Roman Catholic Church - The trial judge declined the request - The Alberta Court of Appeal allowed the Archdiocese of Grouard-McLennan's appeal where the trial judge's decision was not reasonable - For a party to be sued, it must be a natural person, a corporation, or an entity granted status by statute - The preponderance of case law established that the Roman Catholic Church (or hierarchy), being an unincorporated religious association of its adherents, was not a legal entity at law - Moreover, it was not a legal person or an entity that was otherwise recognized by statute.

Practice - Topic 267

Persons who can sue and be sued - Legal personality - Churches - [See Conflict of Laws - Topic 9207 ].

Cases Noticed:

Indian Residential Schools, Re (2000), 258 A.R. 377; 77 Alta. L.R.(3d) 62 (Q.B.), refd to. [para. 5].

International Association of Science and Technology for Development et al. v. Hamza (1995), 162 A.R. 349; 83 W.A.C. 349; 28 Alta. L.R.(3d) 125 (C.A.), refd to. [para. 6].

B.F. v. Society of Kabalarians of Canada, [1999] B.C.J. No. 2128 (S.C.), refd to. [para. 6].

Alberta (Treasury Branches) v. Ghermezian et al. (1999), 249 A.R. 240; 72 Alta. L.R.(3d) 164 (Q.B.), refd to. [para. 8].

Madill v. Alexander Consulting Group Ltd. et al. (1999), 237 A.R. 307; 197 W.A.C. 307 (C.A.), refd to. [para. 8].

Decock et al. v. Alberta et al. (2000), 255 A.R. 234; 220 W.A.C. 234; 186 D.L.R.(4th) 265 (C.A.), refd to. [para. 17].

Northland Bank (Liquidation), Re (1997), 200 A.R. 150; 146 W.A.C. 150 (C.A.), refd to. [para. 18].

Korte et al. v. Cormie et al. (1996), 178 A.R. 209; 110 W.A.C. 209; 36 Alta. L.R.(3d) 56 (C.A.), refd to. [para. 19].

Canadian Engineering and Surveys (Yukon) Ltd. et al. v. Banque Nationale de Paris (Canada) (1996), 196 A.R. 1; 141 W.A.C. 1 (C.A.), refd to. [para. 19].

Gienow Building Products Ltd. v. Tremco Inc. et al. (2000), 255 A.R. 273; 220 W.A.C. 273; 78 Alta. L.R.(3d) 40 (C.A.), refd to. [para. 19].

Comeau et al. v. Fundy Group Publications Ltd. et al. (1981), 53 N.S.R.(2d) 493; 109 A.P.R. 493; 24 C.P.C. 251 (T.D.), refd to. [para. 26].

National Hockey League v. Pepsi Cola Canada Ltd. (No. 2) (1992), 70 B.C.L.R.(2d) 27 (S.C.), affd. (1995), 56 B.C.A.C. 1; 92 W.A.C. 1; 122 D.L.R.(4th) 412 (C.A.), refd to. [para. 26].

Regas Ltd. v. Plotkins, [1961] 1 S.C.R. 566, refd to. [para. 29].

Hal Commodities Cycles Management v. Kirsh (1993), 17 C.P.C.(3d) 320 (Ont. Gen. Div.), refd to. [para. 29].

Swales v. Glendinning, [2000] O.J. No. 2695 (Sup. Ct.), refd to. [para. 36].

John Doe v. Bennett et al. (2000), 188 Nfld. & P.E.I.R. 113; 569 A.P.R. 113 (Nfld. T.D.), refd to. [para. 36].

Authors and Works Noticed:

Kerans, Roger P., Standards of Review Employed by Appellate Courts (1994), pp. xi, xii [para. 20]; 146, 147 [para. 18].

Counsel:

F.F. Slatter, for the appellants, Catholic Archdiocese of Grouard-McLennan;

D.C. Goldie and D.A. Cunningham, for the respondent, John Doe No. 1;

L.M. Huculak and S. Ayala, for the respondent, Her Majesty the Queen in Right of Canada;

G.M. Vlavianos, for the intervenor, Roman Catholic Bishop of the Diocese of Calgary;

R.G. Baril, Q.C., for the intervenor, Sisters of Charity of Providence of Western Canada;

P.A. Crisfield, for the intervenor, Synod of the Diocese of Calgary.

This appeal was heard before McClung, Berger and Wittmann, JJ.A., of the Alberta Court of Appeal. The following decision was delivered by the court on August 28, 2001.