J.G. et al. v. Sister Servants of Mary Immaculate et al., 2007 SKCA 141

• Judge: Vancise, Lane and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: November 21, 2007
• Jurisdiction: Saskatchewan
• Citations: 2007 SKCA 141;(2007), 302 Sask.R. 289 (CA)

J.G. v. Sister Servants (2007), 302 Sask.R. 289 (CA);

      411 W.A.C. 289

MLB headnote and full text

Temp. Cite: [2007] Sask.R. TBEd. DE.001

J.G., V.S., F.M., G.B., G.C., T.C., E.M.J., E.K., P.S. and D.W. (appellants) v. Sister Servants of Mary Immaculate (respondent) and Her Majesty the Queen in Right of Saskatchewan, as represented by the Minister of Social Services (respondent)

(No. 1421; 2007 SKCA 141)

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

Saskatchewan Court of Appeal

Vancise, Lane and Jackson, JJ.A.

November 21, 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 an 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, in a decision reported at 294 Sask.R. 99, 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. The plaintiffs appealed.

The Saskatchewan 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.

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 chambers judge 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) - The Saskatchewan Court of Appeal dismissed an appeal - See paragraphs 10 to 15.

Practice - Topic 2110

Pleadings - Amendment of pleadings - Adding new cause of action or "claim" - 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 applied to amend their pleadings - The Province applied to amend its defence by withdrawing its plea relying on the Limitations of Actions Act and substituting the Public Officers' Protection Act and the Proceedings against the Crown Act, to plead that the actions commenced by the plaintiffs were out of time - The plaintiffs then applied to amend their statement of claim to claim an extension of time to commence an action against the Minister pursuant to s. 2(1)(b) of the Public Officers' Protection Act - The chambers judge granted the Province leave to amend its pleadings as requested - The plaintiffs asserted that the chambers judge erred, after granting the Province leave to amend by failing to permit them to amend their statement of claim to specifically plead to the Province's amendment and specifically plead bad faith - Section 2 of the Public Officers' Protection Act was inoperative if it could be proven that the Province acted in bad faith - The Saskatchewan Court of Appeal rejected the assertion - The plaintiffs did not plead bad faith in the original statement of claim and did not plead bad faith in the proposed amendment to the statement of claim - They did not seek to amend the pleadings to plead bad faith in the hearing before the chambers judge in either written or oral presentations - It was now too late for the plaintiffs to raise the issue - See paragraphs 2 to 9.

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 chambers judge 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 - The Saskatchewan Court of Appeal dismissed an appeal - See paragraphs 10 to 15.

Cases Noticed:

Haug v. Saskatchewan Corrections and Public Safety et al. (2005), 266 Sask.R. 1 (Q.B.), refd to. [para. 8].

LaPointe and Skeates v. Saskatchewan et al. (1988), 67 Sask.R. 233 (Q.B.), refd to. [para. 10].

Mota v. Hamilton-Wentworth (Regional Municipality) et al. (2003), 170 O.A.C. 28 (C.A.), refd to. [para. 15].

Counsel:

Reynold A. Robertson, for the Appellants;

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

Donald A. McKillop, Q.C., for the Minister of Social Services.

This appeal was heard on November 21, 2007, by Vancise, Lane and Jackson, JJ.A., of the Saskatchewan Court of Appeal. The judgment of the Court of Appeal was delivered orally by Vancise, J.A., on November 21, 2007 and filed on November 30, 2007.