Johnston et al. v. Sheila Morrison Schools et al., 2012 ONSC 1322
| Judge | Swinton, Pepall and Harvison Young, JJ. |
| Court | Superior Court of Justice of Ontario (Canada) |
| Case Date | February 06, 2012 |
| Jurisdiction | Ontario |
| Citations | 2012 ONSC 1322;(2012), 289 O.A.C. 177 (DC) |
Johnston v. Sheila Morrison Schools (2012), 289 O.A.C. 177 (DC)
MLB headnote and full text
Temp. Cite: [2012] O.A.C. TBEd. MR.022
Greg Johnston and Tim Williamson (plaintiffs/appellants) v. The Sheila Morrison Schools and Scott Morrison (defendants/respondents)
(304/11; 2012 ONSC 1322)
Indexed As: Johnston et al. v. Sheila Morrison Schools et al.
Court of Ontario
Superior Court of Justice
Divisional Court
Swinton, Pepall and Harvison Young, JJ.
February 24, 2012.
Summary:
The defendant school was a day and residential educational facility for students with learning disabilities and behavioural problems. The second defendant was its headmaster. The school operated for about 22 years until 2009. The plaintiff students alleged that they were abused at the school and that the defendants were negligent and breached fiduciary duties owed to them. The action was certified as a class proceeding on consent. There were three sub-classes: (i) resident class (boarding students); (ii) day student class (students who went home each evening); and (iii) family class (parents, spouses, children and siblings of the resident class). The defendants applied for leave to issue third party claims for contribution and indemnity against the parents and guardians. They argued that the parents and guardians knew and approved of the formal discipline system in place, and that the school had regular contact with the parents and guardians respecting student discipline.
The Ontario Superior Court, in a decision reported at [2011] O.T.C. Uned. 3398, allowed the application. The plaintiffs sought leave to appeal.
The Ontario Divisional Court, per Hoy, J., granted leave to appeal. See [2011] O.A.C. Uned. 547.
The Ontario Divisional Court allowed the appeal.
Equity - Topic 3655.1
Fiduciary or confidential relationships - Breach of fiduciary relationship - Apportionment of fault - [See Practice - Topic 1121 ].
Equity - Topic 3991
Fiduciary of confidential relationships - Practice - General - [See Practice - Topic 1121 ].
Practice - Topic 1121
Parties - Third party or subsequent party procedure - When available - Claim for contribution or indemnity - The defendants were (i) a day/residential school for students with learning disabilities and behavioural problems and (ii) its headmaster - The school operated for about 22 years until 2009 - The two plaintiff students alleged that they were abused at the school and the defendants were negligent and breached fiduciary duties owed to them - The action was certified as a class proceeding on consent - There were three sub-classes: (i) resident class (boarding students); (ii) day student class (students who went home each evening); and (iii) family class (parents, spouses, children and siblings of the resident class) - The defendants applied for leave to issue third party claims for contribution and indemnity against the parents and guardians of students - They argued that the parents and guardians knew and approved of the formal discipline system in place in the school, and that the school had regular contact with the parents and guardians respecting student discipline - A motions judge allowed the application - The Ontario Divisional Court overturned the decision - The plaintiffs were seeking only that portion of their damages attributable to the defendants' degree of fault and not the portion that might be attributable to the degree of fault of their parents or guardians - Where the plaintiffs limited their negligence claim to the damages caused solely by the defendants, there was no right to claim contribution and indemnity - An exercise of discretion was not engaged - Furthermore, there could be no right to contribution and indemnity for a breach of fiduciary duties - Liability for breach of a fiduciary duty was not subject to apportionment - As a matter of law, the third party claim could not be advanced - As a matter of fairness, the defendants were not being asked to pay more than their proportionate share of the alleged losses.
Cases Noticed:
Taylor v. Canada (Minister of Health) et al. (2009), 264 O.A.C. 229 (C.A.), appld. [para. 7].
Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 11].
Counsel:
Kirk M. Baert and Celeste Poltak, for the appellants;
Steven Stieber and Elizabeth Bowker, for the respondents.
This appeal was heard at Toronto, Ontario, on February 6, 2012, by Swinton, Pepall and Harvison Young, JJ., of the Ontario Divisional Court, who delivered the following endorsement on February 24, 2012.
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Anderson et al. v. Canada (Attorney General) et al., (2015) 374 Nfld. & P.E.I.R. 89 (NLTD(G))
...(para. 29). As a result, the third party claims were struck. [31] A similar result was ordered in Johnston v. Sheila Morrison Schools , 2012 ONSC 1322 (CanLII), where relying on Taylor , the third party claims were set aside on the basis that: a) the plaintiffs had limited their claims to t......
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Dadzie v. Ontario,
...defendants to bring the third party claim against the parents of the class members. That decision was reversed by the Divisional Court at 2012 ONSC 1322. However, Perell J.’s analysis of the scope of discovery in a class action (in his reasons at 2011 ONSC 6843) was not before the Di......
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Anderson et al. v. Canada (Attorney General) et al., (2013) 345 Nfld. & P.E.I.R. 164 (NLTD(G))
...of Health) et al. (2009), 264 O.A.C. 229; 2009 ONCA 487, dist. [para. 27]. Johnston et al. v. Sheila Morrison Schools et al. (2012), 289 O.A.C. 177; 2012 ONSC 1322 (Div. Ct.), dist. [para. 31]. Furlong Estate v. Newfoundland Light & Power Co. (2000), 195 Nfld. & P.E.I.R. 120; 586 A.......
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J.K. v. Ontario, 2017 ONCA 902
...for breach of fiduciary duty could not support a third party claim, the motion judge relied on Johnston v. Sheila Morrison Schools, 2012 ONSC 1322, 20 C.P.C. (7th) 103. In that case, the Divisional Court held that there can be no right of contribution and indemnity on account of a breach of......
-
Anderson et al. v. Canada (Attorney General) et al., (2015) 374 Nfld. & P.E.I.R. 89 (NLTD(G))
...(para. 29). As a result, the third party claims were struck. [31] A similar result was ordered in Johnston v. Sheila Morrison Schools , 2012 ONSC 1322 (CanLII), where relying on Taylor , the third party claims were set aside on the basis that: a) the plaintiffs had limited their claims to t......
-
Dadzie v. Ontario,
...defendants to bring the third party claim against the parents of the class members. That decision was reversed by the Divisional Court at 2012 ONSC 1322. However, Perell J.’s analysis of the scope of discovery in a class action (in his reasons at 2011 ONSC 6843) was not before the Di......
-
Anderson et al. v. Canada (Attorney General) et al., (2013) 345 Nfld. & P.E.I.R. 164 (NLTD(G))
...of Health) et al. (2009), 264 O.A.C. 229; 2009 ONCA 487, dist. [para. 27]. Johnston et al. v. Sheila Morrison Schools et al. (2012), 289 O.A.C. 177; 2012 ONSC 1322 (Div. Ct.), dist. [para. 31]. Furlong Estate v. Newfoundland Light & Power Co. (2000), 195 Nfld. & P.E.I.R. 120; 586 A.......
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J.K. v. Ontario, 2017 ONCA 902
...for breach of fiduciary duty could not support a third party claim, the motion judge relied on Johnston v. Sheila Morrison Schools, 2012 ONSC 1322, 20 C.P.C. (7th) 103. In that case, the Divisional Court held that there can be no right of contribution and indemnity on account of a breach of......