Indian Residential Schools, Re, (2000) 268 A.R. 42 (QB)

• Judge: Nation, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 31, 2000
• Citations: (2000), 268 A.R. 42 (QB)

Indian Residential Schools, Re (2000), 268 A.R. 42 (QB)

MLB headnote and full text

Temp. Cite: [2000] A.R. TBEd. JN.064

In The Matter Of certain claims arising from Indian Residential Schools,

And In The Matter Of case management of the Residential School Claims

(9901-15362)

Indexed As: Indian Residential Schools, Re

Alberta Court of Queen's Bench

Judicial District of Calgary

Nation, J.

May 31, 2000.

Summary:

A large number of former residents of Indian residential schools sued the federal government and several relig­ious bodies for alleged abuses, wrongful confine­ment, Char­ter breaches, etc. One of the defendants, the Mission­ary Oblates - Grandin Province, applied to have various actions struck on the basis that they dis­closed no reasonable cause of action.

The Alberta Court of Queen's Bench allowed the application in part.

Civil Rights - Topic 14

General principles - Natural law - [See third Practice - Topic 2230 ].

Civil Rights - Topic 8304

Canadian Charter of Rights and Freedoms - Application of - General (incl. retro­spectivity) - [See Practice - Topic 2239.1 ].

Civil Rights - Topic 8306.5

Canadian Charter of Rights and Freedoms - Application - Failure to enact legislation - [See second Practice - Topic 2230 ].

Crown - Topic 1646

Torts by and against Crown - Actions against Crown - Defences, bars or exclu­sions - Statutory authority - [See first Practice - Topic 2230 ].

Education - Topic 702.1

Education authorities - School commis­sions or boards - Actions against (incl. educational malpractice) - [See fifth Practice - Topic 2230 ].

Indians, Inuit and Métis - Topic 2004

Nations, tribes and bands - General - Reconciliation and memorialization cere­monies - [See fourth Practice - Topic 2230 ].

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Numerous former residents of Indian residential schools sued the federal government and several relig­ious bodies, alleging, inter alia, wrongful confinement - One of the defendants (Oblates) sought to strike the wrongful confinement claim for failure to disclose a cause of action - The Oblates argued that any confinement of first nations children was based on statutory authority (Indian Act, 1920) - The Alberta Court of Queen's Bench held that the alleged con­finement was authorized by the Act - Consequently, the Oblates could rely on the defence of statutory authority - How­ever, that defence did not justify the negligent exercise of that authority - Therefore, the court directed that the pleadings be amended to delete any claims which spe­cifically alleged wrongful confinement as a separate and individual tort based solely on the non-negligent implementation of the Act -See paragraphs 8 to 21.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Numerous former residents of Indian residential schools sued the federal government and several relig­ious bodies, alleging that the federal Crown's fail­ure to respond to the alleged plight of the former residential school students consti­tuted a Charter violation - One of the defendants sought to strike the pleadings for failure to disclose a cause of action - The Alberta Court of Queen's Bench struck out the claim, hold­ing that the Crown's failure to respond did not constitute a Charter violation - See para­graph 35.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Numerous former residents of Indian residential schools sued the federal government and several relig­ious bodies, alleging that by failing to protect their life, liberty and security the federal Crown breached its natural law duties - The Alberta Court of Queen's Bench struck these claims - The court stated that although cases cited by the plaintiffs considered natural law in inter­preting legislation, that did not convert natural law into a recognized part of the law in either Alberta or Canada - Nor did it create a positive duty on the federal Crown - Even assuming the pleadings to be true and applying the most liberal read­ing thereto, the court was unable to con­clude that a breach of natural law by itself constituted a cause of action - See para­graphs 38 to 43.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Numerous former residents of Indian residential schools sued the federal government and several relig­ious bodies, claiming, inter alia, the full cost of a Memorialization and Reconcili­ation Ceremony in the community or home of the plaintiffs following the litigation - One of the defendants sought to strike out these claims, for failure to disclose a cause of action - The Alberta Court of Queen's Bench held that these were simply claims for monetary damages based on the costs associated with such ceremonies - If the plaintiffs were able to prove such damages, the court saw no reason to refuse the award - Therefore, since it was not plain and obvious that this claim would fail, the court refused the application to strike - See paragraphs 44 to 48.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Numerous former residents of Indian residential schools sued the federal government and several relig­ious bodies, alleging educational malprac­tice (i.e., failure by authorities to provide an adequate education) - One of the de­fendants applied to strike out this claim - The Alberta Court of Queen's Bench held that it was not plain and obvious that these claims would fail and therefore refused to strike out the pleading - See paragraphs 49 to 58.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Numerous former residents of Indian residential schools sued the federal government and several relig­ious bodies, alleging that they were indoc­trinated into the Roman Catholic religion -One of the defendants sought to strike this pleading on the ground of statutory au­thority - The Alberta Court of Queen's Bench refused to strike this pleading where the court could not find with certainty that this claim was doomed to fail - See para­graphs 59 to 63.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - Numerous former residents of Indian residential schools sued the federal government and several relig­ious bodies, seeking a declaration that the residential school system and the defen­dants' conduct in that respect constituted a breach of the United Nations Convention on the Prevention and Punishment of the Crime of Genocide - The Alberta Court of Queen's Bench struck this claim - The court noted that the Convention had not been incorporated into a statute of Canada - The court held that it lacked the juris­diction to award a declaratory order on the basis of a non-legal or political code of conduct - See paragraphs 68 to 73.

Practice - Topic 2239.1

Pleadings - Striking out pleadings - Grounds - Abuse of process - Hopeless suit - Numerous former residents of Indian residential schools sued the federal gov­ernment and several religious bodies, alleging numerous Charter violations - One of the defendants sought to strike the pleadings for failure to disclose a cause of action, because the Charter breaches occurred before the Charter came into force - The Alberta Court of Queen's Bench struck the Charter pleadings because those claims had no hope of success - The court held that the claims concerned past, dis­crete events to which the Charter had no application - The alleged abuses that occurred while the plaintiffs attended the residential schools occurred prior to the enact­ment of the Charter and while there might be damages which continued to flow from those circumstances, that by itself was insuf­ficient to attract Charter applica­tion - See paragraphs 22 to 37.

Practice - Topic 5652

Judgments and orders - Declaratory judg­ments - When available - General - [See seventh Practice - Topic 2230 ].

Torts - Topic 49.30

Negligence - Standard of care - Particular persons and relationships - Educational institutions and instructors - [See fifth and sixth Practice - Topic 2230 ].

Torts - Topic 9163

Duty of care - Particular relationships - Claims against public officials, authorities or boards - Education authorities - [See fifth Practice - Topic 2230 ].

Cases Noticed:

Cerny v. Canadian Industries Ltd., [1972] 6 W.W.R. 88 (Alta. C.A.), refd to. [para. 4].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 74 D.L.R.(4th) 321, refd to. [para. 4].

Whitford et al. v. Fullowka et al. (1996), 147 D.L.R.(4th) 531 (N.W.T.C.A.), leave to appeal refused (1997), 222 N.R. 320 (S.C.C.), refd to. [para. 5].

Madill v. Alexander Consulting Group Ltd. et al. (1999), 237 A.R. 307; 197 W.A.C. 307; 71 Alta. L.R.(3d) 50 (C.A.), refd to. [para. 6].

Lewis v. Prince Edward Island (1998), 172 Nfld. & P.E.I.R. 93; 528 A.P.R. 93; 157 D.L.R.(4th) 227 (P.E.I.C.A.), leave to appeal refused (1998), 235 N.R. 394; 176 Nfld. & P.E.I.R. 162; 540 A.P.R. 162 (S.C.C.), refd to. [para. 12].

Allen v. Gulf Oil Refining Ltd., [1981] A.C. 1001 (H.L.), refd to. [para. 12].

Fairford First Nation v. Canada (Attorney General), [1999] 2 F.C. 48; 156 F.T.R. 1 (T.D.), refd to. [para. 12].

Illingworth Estate v. Humber Memorial Hospital (1999), 118 O.A.C. 135 (Div. Ct.), refd to. [para. 12].

Muir v. Alberta, [1996] 4 W.W.R. 177; 179 A.R. 321 (Q.B.), refd to. [para. 14].

Chopra v. Eaton (T.) Co. et al., [1999] 9 W.W.R. 711; 240 A.R. 201 (Alta. Q.B.), refd to. [para. 17].

R. v. Deputy Governor of Parkhurst Prison; Ex parte Hague, [1992] 1 A.C. 58; 141 N.R. 161 (H.L.), refd to. [para. 17].

R. v. James, Kirsten, Rosenthal and Dzagic, [1988] 1 S.C.R. 669; 85 N.R. 1; 41 O.A.C. 303, refd to. [para. 23].

R. v. Stevens, [1988] 1 S.C.R. 1153; 86 N.R. 85; 28 O.A.C. 243; 41 C.C.C.(3d) 193, refd to. [para. 23].

Gamble v. R., [1988] 2 S.C.R. 595; 89 N.R. 161; 31 O.A.C. 81, refd to. [para. 23].

Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358; 208 N.R. 81, refd to. [para. 23].

Mayrhofer v. Canada, [1993] 2 F.C. 157; 61 F.T.R. 81 (T.D.), refd to. [para. 25].

H. v. H., [1927] 2 W.W.R. 366 (Alta. C.A.), refd to. [para. 40].

Hawkins v. Addison, [1955] 3 D.L.R. 435 (Alta. C.A.), refd to. [para. 40].

Adoption No. 22025 and 22028, Re - see Alberta Child Welfare Act, Re.

Alberta Child Welfare Act, Re (1972), 28 D.L.R.(3d) 625 (Alta. Dist. Ct.), refd to. [para. 40].

R. v. Big M Drug Mart et al., [1984] 1 W.W.R. 625; 49 A.R. 194 (C.A.), refd to. [para. 40].

R.L. v. Director of Children and Families (B.C.) (1998), 120 B.C.A.C. 113; 196 W.A.C. 113; 25 C.P.C.(4th) 186 (C.A.), refd to. [para. 50].

X. v. Bedforshire County Council, [1995] 3 All E.R. 353 (H.L.), refd to. [para. 50].

Gould v. Board of Education of Regina (East) School Division No. 77 et al., [1997] 3 W.W.R. 117; 151 Sask.R. 189 (Q.B.), refd to. [para. 50].

Haynes (Guardian ad litem of) v. Lleres, [1997] B.C.J. No. 1202 (Prov. Ct.), refd to. [para. 50].

Hicks v. Etobicoke City Board of Education, [1988] O.J. No. 1900 (Dist. Ct.), refd to. [para. 50].

Arrow River & Tributaries Slide & Boom Co. v. Pigeon Timber Co., [1932] S.C.R. 495, refd to. [para. 71].

Rayner (J.H.) (Mincing Lane) Ltd. v. United Kingdom (Department of Trade and Industry), [1990] 2 A.C. 418; 129 N.R. 321 (H.L.), refd to. [para. 71].

Francis v. Canada, [1956] S.C.R. 618, refd to. [para. 71].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 71].

Authors and Works Noticed:

Clerk and Lindsell on Torts (17th Ed. 1995), generally [para. 12].

Dukelow, D.A., The Dictionary of Canadian Law (1991), [para. 42].

Fridman, G.H.L., The Law of Torts in Canada (1989), generally [para. 12].

Hogg, Peter, On Being a Positivist: A Reply to Professor Vaughan (1991), Osgoode H.L.J. 411, p. 414 [para. 39].

Klar, L.N., Tort Law (2nd Ed. 1996), generally [para. 12].

Sossin, L., Boundaries of Judicial Review: the Law of Justiciability in Canada (19­99), generally [para. 15].

Counsel:

Vaughn Marshall and Rhonda Ruston (Ruston Marshall), Les Meiklejohn, Tom Stepper and Jane-Ann Summers (Merchant Law Group), Fran Huck (Huck, Andrews, Butler, Birchard), Graham Neill and Bruce Neill (Merchant Law Group), Rupesh Joshi, Dan P. Carroll and P.J. Faulds (Field Atkinson Perraton), Karen G. Wood (Ahlstrom Wright Oliver & Cooper), Diana Goldie (First Street Law Office), Noble Ernest Shanks (Davis & Shanks), A.R. Collins, Jeffrey R.W. Rath (Rath & Company), Virginia M. May, Q.C. (May Jensen Gruber Shawa), R.M. Saccomani (Biamonte Cairo & Shortreed), Ron Dumonceaux (Merchant Law Group) and Eddy W. Onusko, for the plaintiffs;

Catherine A. Coughlan (Department of Justice), W. Rod Donlevy and Michel Thibault (Donlevy & Company), Frans F. Slatter (McCuaig Desrochers), Phyllis A. Smith, Q.C., (Emery, Jamieson), Ray Baril (Chomicki Baril), William Paul, Garth Dymond (Clark Dymond McCaffery), Aaron Fox (McDougall, Ready), John Cordeau and George Vlavianos (Bennett Jones) and Peter Crisfield, for the defendants.

This matter was heard before Nation, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on May 31, 2000.