J.G. et al. v. Sister Servants of Mary Immaculate et al., 2007 SKQB 54

• Judge: Koch, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: February 02, 2007
• Jurisdiction: Saskatchewan
• Citations: 2007 SKQB 54;(2007), 294 Sask.R. 99 (QB)

J.G. v. Sister Servants (2007), 294 Sask.R. 99 (QB)

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. MR.026

J.G., V.S., F.M. and G.B. (plaintiffs) v. Sister Servants of Mary Immaculate (defendant) and Her Majesty the Queen in right of Saskatchewan, As represented by the Minister of Social Services (defendant)

(2004 Q.B.G. No. 2038; 2007 SKQB 54)

Indexed As: J.G. et al. v. Sister Servants of Mary Immaculate et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Koch, J.

February 2, 2007.

Summary:

The plaintiffs sued the defendants, the Sister Servants of Mary Immaculate and the Province of Saskatchewan (Sisters), alleging that during various periods between December 1970 and June 1973, while they were in the care of Sisters, they suffered emotional distress and were subjected to various kinds of abuses including assaults and sexual assaults. The plaintiffs claimed that Sisters was responsible as employer for the conduct of individual nuns at the orphanage. The plaintiffs alleged that the defendants were negligent in caring for them and breached a positive fiduciary duty to protect the plaintiffs from harm of the kind they claim to have suffered while they were at the orphanage. The plaintiffs moved to amend their statements of claim to (1) facilitate the presentation of an application for certification under the Class Actions Act; (2) add claims based on negligence and systemic negligence on the part of Sisters and systemic negligence on the part of the Province; and (c) claim vicarious liability against Sisters with respect to the conduct of individual nuns as employees of Sisters and, alternatively, to amend the statement of claim to consolidate all of the actions under Queen's Bench Rule 41(2). The Province brought a motion, seeking (a) if leave was granted to the plaintiffs to amend the statements of claim the Province sought leave to amend the statements of defence in response, by deleting reference to or reliance on the Limitations of Actions Act and substituting a plea that the plaintiffs' claims were out of time by virtue of s. 2(1)(a) of the Public Officers' Protection Act and s. 5(4) of the Proceedings against the Crown Act; and (b) an order pursuant to rules 173(a) and 188 to dismiss all of the plaintiffs' claims against the Province on the ground that all of the plaintiffs' causes of action apart from their vicarious liability claim which they had abandoned were time barred by s. 2(1)(a) of the Public Officers' Protection Act. If the Province succeeded on the rule 173 application, the plaintiffs sought a discretionary order pursuant to s. 2(1)(b) extending nunc pro tunc the time for the commencement of their actions to the day following the date of commencement of each respective action.

The Saskatchewan Court of Queen's Bench determined the issues. The plaintiffs succeeded as to their proposed amendments to facilitate class action proceedings but only against Sisters. The Province succeeded in amending its pleadings and in striking out the plaintiffs' pleadings pursuant to rule 173. The plaintiffs' motion for an extension of time pursuant to s. 2(1)(b) of the Public Officers'' Protection Act was dismissed.

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.

Limitation of Actions - Topic 9612

Enlargement of time period - Application for - When available - The plaintiffs sued the defendants, the Sister Servants of Mary Immaculate and the Province of Saskatchewan, alleging that during various periods between December 1970 and June 1973, while they were in the care of Sisters, they suffered emotional distress and were subjected to various kinds of abuses including assaults and sexual assaults - The Province successfully moved for an order under Queen's Bench Rules 173(a) and 188 to dismiss all of the plaintiffs' claims against the Province on the ground that all of the plaintiffs' causes of action apart from their vicarious liability claim which they had abandoned were time barred by s. 2(1)(a) of the Public Officers'' Protection Act - The plaintiffs applied for an order under s. 2(1)(b) extending the time for commencement of the actions until one day after the issue of the statements of claim - The Saskatchewan Court of Queen's Bench denied the extension of time - The plaintiffs had made out a prima facie cause of action - While the delay was unusually long and the length of time might have a negative impact of the overall credibility of the witnesses, the plaintiffs' reasons for the delay were reasonable - However, the plaintiffs were unable to establish that the delay would not serve to prejudice the Province - Therefore, they were not entitled to relief under s. 2(1)(b) - See paragraphs 31 to 42.

Practice - Topic 2120

Pleadings - Amendment of pleadings - Statement of claim - General - The plaintiffs sued the defendants, the Sister Servants of Mary Immaculate and the Province of Saskatchewan, alleging that during various periods between December 1970 and June 1973, while they were in the care of Sisters, they suffered emotional distress and were subjected to various kinds of abuses including assaults and sexual assaults - The plaintiffs moved to amend their statements of claim to, inter alia, facilitate the presentation of an application for certification under the Class Actions Act - The Saskatchewan Court of Queen's Bench allowed the amendment - If the actions proceeded individually, the plaintiffs would encounter several difficulties, i.e., unavailable or incomplete records and incapacitated or deceased witnesses - Further, without a class action or consolidation of the actions there was a meaningful risk of inconsistent verdicts - As well, it appeared likely that proceeding with numerous cases individually would increase the overall cost to all parties, including the defendants - The proposed amendments were necessary to determine the real questions in issue (rule 165) - See paragraphs 17 to 20.

Practice - Topic 2239.2

Pleadings - Striking out pleadings - Grounds - Action prescribed or barred by limitation period - The plaintiffs sued the defendants, the Sister Servants of Mary Immaculate and the Province of Saskatchewan, alleging that during various periods between December 1970 and June 1973, while they were in the care of Sisters, they suffered emotional distress and were subjected to various kinds of abuses including assaults and sexual assaults - The Province moved for an order under Queen's Bench Rules 173(a) and 188 to dismiss all of the plaintiffs' claims against the Province on the ground that all of the plaintiffs' causes of action apart from their vicarious liability claim which they had abandoned were time barred by s. 2(1)(a) of the Public Officers'' Protection Act - The Saskatchewan Court of Queen's Bench allowed the motion - Under s. 2(1)(a), an action had to be commenced within 12 months of the default complained of - These actions were commenced from 1997, many years after the alleged defaults - It was plain and obvious that the plaintiffs' cases in accordance with the amendments they had been granted leave to make were out of time under s. 2(1)(a) and, accordingly, could not succeed - Therefore those claims had to be struck pursuant to rule 173 - See paragraphs 24 to 30.

Cases Noticed:

Horncastle and Sayers v. Saskatchewan Government Employees' Association (1980), 4 Sask.R. 22 (Q.B.), refd to. [para. 17].

International Minerals & Chemical Corp. (Canada) Ltd. et al. v. Commonwealth Insurance Co. et al. (1990), 85 Sask.R. 304 (Q.B.), refd to. [para. 17].

Royal Bank of Canada v. Roles (1988), 74 Sask.R. 296 (Q.B.), refd to. [para. 17].

Cloud et al. v. Canada (Attorney General) et al. (2004), 192 O.A.C. 239; 247 D.L.R.(4th) 667 (C.A.), refd to. [para. 19].

Rumley et al. v. British Columbia, [2001] 3 S.C.R. 184; 275 N.R. 342; 157 B.C.A.C. 1; 256 W.A.C. 1; 2001 SCC 69, refd to. [para. 19].

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; 2003 SCC 51, refd to. [para. 26].

F.P. v. Saskatchewan, [2005] 3 W.W.R. 257; 249 Sask.R. 42; 325 W.A.C. 42; 2004 SKCA 59, refd to. [para. 28].

LaPointe and Skeates v. Saskatchewan et al. (1988), 67 Sask.R. 233 (Q.B.), refd to. [para. 28].

Tamarak Energy Inc. v. Ipsco Inc. et al. (1999), 185 Sask.R. 161; 1999 SKQB 125, refd to. [para. 29].

Ramsay v. Saskatchewan et al., [2004] 1 W.W.R. 309; 234 Sask.R. 172; 2003 SKQB 163, refd to. [para. 29].

Popowich v. Saskatchewan et al. (2001), 209 Sask.R. 88; 2001 SKQB 148, affd. [2002] 2 W.W.R. 612; 213 Sask.R. 282; 260 W.A.C. 282 (C.A.), refd to. [para. 30].

Peyson v. Vuksic, [1994] 10 W.W.R. 165; 124 Sask.R. 251 (Q.B.), refd to. [para. 36].

Mota v. Hamilton-Wentworth (Regional Municipality) et al. (2003), 170 O.A.C. 28; 225 D.L.R.(4th) 295 (C.A.), refd to. [para. 41].

S.M. v. Canada (Attorney General) (2005), 270 Sask.R. 89; 2005 SKQB 395, refd to. [para. 42].

Counsel:

Reynold A.J. Robertson, for the plaintiffs/applicants;

Henry R. Kloppenburg, Q.C., for the defendant, Sister Servants of Mary Immaculate, respondent;

Donald A. McKillop, Q.C., for the defendant, Her Majesty the Queen, respondent.

These motions were heard by Koch, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on February 2, 2007.