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

• Jurisdiction: Nova Scotia
• Court: Court of Appeal of Nova Scotia (Canada)
• Judge: Roscoe, Bateman and Cromwell, JJ.A.
• Citation: (2008), 275 N.S.R.(2d) 36 (CA),2008 NSCA 94
• Date: 17 September 2008

J.A.C. v. Education Authority (2008), 275 N.S.R.(2d) 36 (CA);

    877 A.P.R. 36

MLB headnote and full text

Temp. Cite: [2008] N.S.R.(2d) TBEd. OC.054

J.A.C. and J.S. (appellants) v. Atlantic Provinces Special Education Authority (respondent)

(CA 284552; 2008 NSCA 94)

Indexed As: J.A.C. et al. v. Atlantic Provinces Special Education Authority

Nova Scotia Court of Appeal

Roscoe, Bateman and Cromwell, JJ.A.

October 17, 2008.

Summary:

J.A.C. and her mother J.S. sued the Atlantic Provinces Special Education Authority (APSEA) for negligence and breach of fiduciary duty as a result of alleged sexual abuse perpetrated on J.A.C. when she attended an APSEA-operated residential school for the hearing handicapped. APSEA moved to strike the statement of claim.

The Nova Scotia Supreme Court, in a decision not reported in this series, allowed the motion. J.A.C. and J.S. appealed.

The Nova Scotia Court of Appeal dismissed the appeal.

Editor's Note: Certain names in the following case have been initialized or the case otherwise edited to prevent the disclosure of identities where required by law, publication ban, Maritime Law Book's editorial policy or otherwise.

Equity - Topic 3993

Fiduciary or confidential relationships - Practice - Pleadings - The Nova Scotia Court of Appeal held that a statement of claim for breach of fiduciary duty had to set out the material facts to sufficiently identify the following: the nature of the fiduciary relationship, the nature of the duty owed by the fiduciary, how the duty was breached, how the defendant put its own interests ahead of the plaintiff's interests and the appropriate remedy for the breach - See paragraphs 10 to 14.

Practice - Topic 2230.3

Pleadings - Striking out pleadings - Grounds - Failure to plead material facts - J.A.C. and her mother J.S. sued the Atlantic Provinces Special Education Authority (APSEA) for negligence and breach of fiduciary duty as a result of alleged sexual abuse perpetrated on J.A.C. when she attended an APSEA-operated residential school for the hearing handicapped - The breach of fiduciary duty allegation read as follows: "... APSEA breached its parental-type of fiduciary duty to act loyally in the best interests of the Plaintiffs and not to put its own or others' interests ahead of the Plaintiffs in a manner that abused the Plaintiff's trust" - The Nova Scotia Court of Appeal affirmed a decision striking the statement of claim for failure to disclose a reasonable cause of action for breach of fiduciary duty - The above allegation was simply a statement of law as to what a fiduciary duty was and a claim that it was breached - It did not provide any particulars or description of what APSEA was alleged to have done or how it put its interests ahead of the plaintiffs' interests - See paragraphs 10 to 22.

Cases Noticed:

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, consd. [para. 6].

Canada (Attorney General) v. Foundation Co. of Canada Ltd. et al. (1990), 99 N.S.R.(2d) 327; 270 A.P.R. 327 (C.A.), refd to. [para. 9].

Frank v. Purdy Estate (1995), 142 N.S.R.(2d) 50; 407 A.P.R. 50 (C.A.), refd to. [para. 9].

Clarke v. Sherman et al. (2002), 205 N.S.R.(2d) 112; 643 A.P.R. 112 (C.A.), refd to. [para. 9].

Binder v. Royal Bank of Canada et al. (2005), 234 N.S.R.(2d) 109; 745 A.P.R. 109; 2005 NSCA 94, refd to. [para. 9].

Milbury v. Nova Scotia (Attorney General) et al. (2007), 254 N.S.R.(2d) 181; 810 A.P.R. 181; 2007 NSCA 52, consd. [para. 9].

Knowledge House Inc. et al. v. Stewart McKelvey Stirling Scales et al. (2007), 260 N.S.R.(2d) 64; 831 A.P.R. 64; 2007 NSCA 113, refd to. [para. 10].

Sherman v. Giles (1994), 137 N.S.R.(2d) 52; 391 A.P.R. 52 (C.A.), consd. [para. 11].

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

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

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, refd to. [para. 15].

F.P. v. Saskatchewan (2004), 249 Sask.R. 42; 325 W.A.C. 42; 2004 SKCA 59, leave to appeal refused (2004), 335 N.R. 193; 262 Sask.R. 320; 347 W.A.C. 320 (S.C.C.), consd. [para. 17].

R.J.G. v. Canada (Attorney General) (2004), 249 Sask.R. 244; 325 W.A.C. 244; 2004 SKCA 102, leave to appeal refused (2005), 337 N.R. 194; 269 Sask.R. 311; 357 W.A.C. 311 (S.C.C.), consd. [para. 17].

Authors and Works Noticed:

Ng, Michael, Fiduciary Duties: Obligations of Loyalty and Faithfulness (2007), p. 2-1 [para. 12].

Counsel:

J. Brian Church, Q.C., for the appellants;

Noella Martin, for the respondent.

This appeal was heard on September 17, 2008, by Roscoe, Bateman and Cromwell, JJ.A., of the Nova Scotia Court of Appeal. The following decision of the Court of Appeal was delivered by Roscoe, J.A., and released on October 17, 2008.