L.C. v. Grenville Christian College et al., 2013 ONCA 139

• Judge: O'Connor, A.C.J.O.*, Doherty and Blair, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: December 20, 2012
• Jurisdiction: Ontario
• Citations: 2013 ONCA 139;(2013), 304 O.A.C. 163 (CA)

L.C. v. Grenville Christian College (2013), 304 O.A.C. 163 (CA)

MLB headnote and full text

Temp. Cite: [2013] O.A.C. TBEd. MR.017

L.C., A.H.-B., R.V.D., M.G. and T.B. (appellants) v. Grenville Christian College, the Incorporated Synod of the Diocese of Ontario, Charles Farnsworth, Betty Farnsworth, Judy Hay the Executrix for the Estate of J. Alastair Haig and Mary Haig (respondents)

(C55627; 2013 ONCA 139)

Indexed As: L.C. v. Grenville Christian College et al.

Ontario Court of Appeal

O'Connor, A.C.J.O.*, Doherty and Blair, JJ.A.

March 8, 2013.

Summary:

The appellants alleged that they and other residential students at Grenville Christian College were physically and psychologically abused. The appellants brought actions in negligence, assault, battery, intentional infliction of mental suffering and breach of fiduciary duty against Grenville Christian College, Father Farnsworth, the estate of Father Haig, and the Incorporated Synod of the Diocese of Ontario (the Diocese), collectively the "respondents". The appellants moved to certify the action as a class proceeding pursuant to the Class Proceedings Act (CPA).

The Ontario Superior Court, in a decision reported at [2012] O.T.C. Uned. 2995, refused to certify the action against any of the respondents. In respect of the Diocese, the motion judge held that the claim as framed did not reveal a cause of action. He ordered the action against the Diocese "immediately dismissed". With respect to the other respondents, the motion judge found that the appellants failed to show that a class proceeding was the preferable procedure. He dismissed the motion for certification against those respondents, but allowed the appellants to apply for an order under s. 7 of the CPA to continue the proceedings in an amended form. The appellants appealed from both parts of the motion judge's order. The parties agreed that the appeal from the order refusing to certify the proceedings as against the respondents other than the Diocese was properly to the Divisional Court under s. 30(1) of the CPA. They also agreed that the Court of Appeal had jurisdiction under s. 6(1)(b) of the Courts of Justice Act (CJA) to hear the appeal from the order dismissing the claim against the Diocese. The parties submitted that the Court of Appeal should exercise its discretion under s. 6(2) of the CJA to join the appeal against the other respondents with the appeal against the Diocese.

The Ontario Court of Appeal held that it had jurisdiction to hear the appeal from the order dismissing the action against the Diocese and it dismissed that appeal. The court held that it would not exercise its jurisdiction under s. 6(2) of the CJA to hear the appeal against the refusal to certify the claim against the other respondents. The court ordered that the remainder of the appeal be transferred to the Divisional Court.

Editor's Note: * O'Connor, A.C.J.O., took no part in the judgment.

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.

Courts - Topic 7446

Provincial courts - Ontario - Court of Appeal - Jurisdiction - General - [See both Practice - Topic 209.9 ].

Equity - Topic 3645.1

Fiduciary or confidential relationships - Breach of fiduciary relationship - Churches and clergy - The appellants alleged that they and other residential students at Grenville Christian College were physically and psychologically abused - They brought actions in negligence, assault, battery, intentional infliction of mental suffering and breach of fiduciary duty against Grenville Christian College, Father Farnsworth, the estate of Father Haig, and the Incorporated Synod of the Diocese of Ontario (the Diocese) - The appellants moved to certify the action as a class proceeding pursuant to the Class Proceedings Act (CPA) - In respect of the Diocese, the motion judge held that the claim did not reveal a cause of action as required by s. 5(1)(a) of the CPA - He ordered the action against the Diocese "immediately dismissed" - The Ontario Court of Appeal agreed with the motion judge that the pleading failed to show any cause of action for breach of fiduciary duty against the Diocese - There could be no fiduciary relationship unless the alleged fiduciary was in a position to exercise unilaterally some discretion or power that would affect the putative beneficiary's legal or practical interests - There were no material facts pleaded to suggest that the appellants were in any way under the power or discretion of the Diocese while attending Grenville Christian College - See paragraphs 79 to 81.

Practice - Topic 209.9

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Appeals (incl. leave to appeal) - The appellants moved to certify their action against the respondents as a class proceeding pursuant to the Class Proceedings Act (CPA) - In respect of the respondent, the Incorporated Synod of the Diocese of Ontario (the Diocese), the motion judge held that the claim did not reveal a cause of action as required by s. 5(1)(a) of the CPA - He ordered the action against the Diocese "immediately dismissed" - The appellants appealed - The Ontario Court of Appeal held that it had jurisdiction under s. 6(1)(b) of the Courts of Justice Act (CJA) to hear the appeal from the order dismissing the claim against the Diocese - Under s. 6(1)(b) of the CJA, the order dismissing the action against the Diocese was appealable to the Court of Appeal unless there was an appeal to the Divisional Court - None of the provisions in s. 30 of the CPA directing appeals to the Divisional Court had any application to an order dismissing the action - Therefore, there was no appeal from that order to the Divisional Court - The appeal was to the Court of Appeal - If a rule 21 motion had been brought, it was accepted that the appeal would be the Court of Appeal - The absence of a rule 21 motion was not determinative on the jurisdiction question - The appellants were not prejudiced by the Diocese's failure to bring a formal motion to dismiss - See paragraphs 11 to 36.

Practice - Topic 209.9

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Appeals (incl. leave to appeal) - The appellants moved to certify their action against the respondents as a class proceeding pursuant to the Class Proceedings Act (CPA) - In respect of the respondent, the Incorporated Synod of the Diocese of Ontario, the motion judge held that the claim did not reveal a cause of action - He ordered the action against the Diocese "immediately dismissed" - With respect to the other respondents, the motion judge found that the appellants failed to show that a class proceeding was the preferable procedure - He dismissed the motion for certification against those respondents, but allowed the appellants to apply for an order under s. 7 of the CPA to continue the proceedings in an amended form - The appellants appealed from both parts of the motion judge's order - The parties agreed that the appeal from the order refusing to certify the proceedings as against the respondents other than the Diocese was properly to the Divisional Court under s. 30(1) of the CPA - They also agreed that the Court of Appeal had jurisdiction under s. 6(1)(b) of the Courts of Justice Act (CJA) to hear the appeal from the order dismissing the claim against the Diocese - The parties submitted that the court should exercise its discretion under s. 6(2) of the CJA to join the appeal against the other respondents with the appeal against the Diocese - The Ontario Court of Appeal declined to exercise its jurisdiction under s. 6(2) of the CJA to hear the appeal against the refusal to certify the claim against the other respondents - That appeal was transferred to the Divisional Court - There was little to be gained by joinder - There was no risk of inconsistent results and very little overlap in the matters to be addressed on the two appeals - Further, the very different nature of the issues raised on the two appeals contraindicated joinder - See paragraphs 84 to 93.

Practice - Topic 2122.2

Pleadings - Amendment of pleadings - Statement of claim - On appeal - The appellants alleged that they and other residential students at Grenville Christian College were physically and psychologically abused - They brought actions in negligence, assault, battery, intentional infliction of mental suffering and breach of fiduciary duty against Grenville Christian College, Father Farnsworth, the estate of Father Haig, and the Incorporated Synod of the Diocese of Ontario (the Diocese) - The appellants moved to certify the action as a class proceeding pursuant to the Class Proceedings Act (CPA) - In respect of the Diocese, the motion judge held that the claim did not reveal a cause of action as required by s. 5(1)(a) of the CPA - He ordered the action against the Diocese "immediately dismissed" - The appellants appealed - During oral argument, the appellants indicated that they could and would, if necessary, amend their pleadings - The Ontario Court of Appeal stated that "The weaknesses in the statement of claim as it relates to the action against the Diocese have been an issue since the commencement of the certification proceedings. The appellants have had ample opportunity to address those weaknesses and put forward any amendments available to them that would cure the deficiencies identified in the pleadings. No amendments have been offered. Absent any concrete proposed amendments, I see no point in extending the proceedings against the Diocese further by allowing leave to amend" - See paragraphs 82 to 83.

Practice - Topic 2230

Pleadings - Striking out pleadings - Grounds - Failure to disclose a cause of action or defence - [See first Practice - Topic 209.9 ].

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See Torts - Topic 81 ].

Torts - Topic 81

Negligence - Duty of care - Requirement that duty be owed to plaintiff - The appellants alleged that they and other residential students at Grenville Christian College were physically and psychologically abused - They brought actions in negligence, assault, battery, intentional infliction of mental suffering and breach of fiduciary duty against Grenville Christian College, Father Farnsworth, the estate of Father Haig, and the Incorporated Synod of the Diocese of Ontario (the Diocese) - The appellants moved to certify the action as a class proceeding pursuant to the Class Proceedings Act (CPA) - In respect of the Diocese, the motion judge held that the claim did not reveal a cause of action as required by s. 5(1)(a) of the CPA - He ordered the action against the Diocese "immediately dismissed" - The Ontario Court of Appeal agreed with the motion judge that the relationship between the Diocese and the appellants was not such as to impose a duty of care on the Diocese and the negligence claim was properly struck - The pleading was devoid of any material facts substantiating the allegation that the Diocese knew or ought to have known of the abuse - A bald assertion of foreseeability was not sufficient - The pleading also failed to establish sufficient proximity in the relationship between the Diocese and the appellants to warrant the imposition of a duty of care - See paragraphs 62 to 78.

Cases Noticed:

R. v. Meltzer and Laison, [1989] 1 S.C.R. 1764; 96 N.R. 391, refd to. [para. 11].

Canadian Broadcasting Corp. v. Ontario (2011), 285 O.A.C. 160; 107 O.R.(3d) 161; 2011 ONCA 624, refd to. [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, refd to. [para. 19].

Menegon v. Philip Services Corp., [2001] O.T.C. 989; 23 B.L.R.(3d) 151 (Sup. Ct.), affd. (2003), 167 O.A.C. 277 (C.A.), refd to. [para. 20].

Menegon v. Philip Services Corp. et al. (2002), 155 O.A.C. 365 (Div. Ct.), refd to. [para. 20].

Drady v. Canada (Minister of Health) (2008), 270 O.A.C. 1; 2008 ONCA 659, refd to. [para. 21].

McCracken v. Canadian National Railway Co. (2012), 293 O.A.C. 274; 111 O.R.(3d) 745; 2012 ONCA 445, refd to. [para. 21].

Attis et al. v. Canada (Minister of Health) et al. (2008), 254 O.A.C. 91; 93 O.R.(3d) 35; 2008 ONCA 660, refd to. [para. 21, footnote 3].

Brown et al. v. Canada (Attorney General) (2013), 300 O.A.C. 290; 2013 ONCA 18, refd to. [para. 21, footnote 3].

Dabbs v. Sun Life Assurance Co. of Canada (1998), 113 O.A.C. 307; 41 O.R.(3d) 97 (C.A.), dist. [para. 26].

Locking v. Armtec Infrastructure Inc. - see Simmonds et al. v. Armtec Infrastructure Inc. et al.

Simmonds et al. v. Armtec Infrastructure Inc. et al. (2012), 299 O.A.C. 20; 2012 ONCA 774, refd to. [para. 29].

Kang v. Sun Life Assurance Co. of Canada (2013), 303 O.A.C. 64; 2013 ONCA 118, reving. in part, [2011] O.T.C. Uned. 6335; 4 C.C.L.I.(5th) 86; 2011 ONSC 6335 (Sup. Ct.), refd to. [para. 34].

British Columbia v. Imperial Tobacco Canada Ltd. et al. (2011), 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 37].

Taylor v. Canada (Attorney General) (2012), 293 O.A.C. 312; 111 O.R.(3d) 161; 2012 ONCA 479, refd to. [para. 44].

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388; 2001 SCC 80, refd to. [para. 61].

Eliopoulos et al. v. Ontario (Minister of Health and Long-Term Care) (2006), 217 O.A.C. 69; 82 O.R.(3d) 321 (C.A.), refd to. [para. 63].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 63].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 63].

John Doe v. Bennett et al. (2002), 215 Nfld. & P.E.I.R. 310; 644 A.P.R. 310; 218 D.L.R.(4th) 276; 2002 NFCA 47, affd. [2004] 1 S.C.R. 436; 318 N.R. 146; 236 Nfld. & P.E.I.R. 215; 700 A.P.R. 215; 2004 SCC 17, refd to. [para. 64].

Swales v. Glendenning - see J.R.S. et al. v. Glendinning et al.

J.R.S. et al. v. Glendinning et al., [2004] O.T.C. 102; 237 D.L.R.(4th) 304 (Sup. Ct.), refd to. [para. 64].

W.K. v. Pornbacher et al., [1997] B.C.T.C. Uned. 50; 32 B.C.L.R.(3d) 360 (S.C.), refd to. [para. 64].

Hill et al. v. Hamilton-Wentworth Regional Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 70].

Perez v. Galambos et al., [2009] 3 S.C.R. 247; 394 N.R. 209; 276 B.C.A.C. 272; 468 W.A.C. 272; 2009 SCC 48, refd to. [para. 80].

Statutes Noticed:

Class Proceedings Act, S.O. 1992, c. 6, sect. 30(1) [para. 14].

Courts of Justice Act, R.S.O. 1990, c. C-43, sect. 6(1)(b) [para. 12]; sect. 6(2) [para. 85].

Counsel:

Kirk Baert, Russell Raikes, Sean O'Donnell, Michael Saelhof, Loretta Merritt and Christopher Haber, for the appellants;

Steven Steiber and Linda Phillips-Smith, for the respondent, the Incorporated Synod of the Diocese of Ontario;

Geoffrey Adair and Alexa Suzenko, for the respondents, Grenville Christian College, Charles Farnsworth and Judy Hay the Executrix for the Estate of J. Alastair Haig.

This appeal was heard on December 20, 2012, before O'Connor, A.C.J.O., Doherty and Blair, JJ.A., of the Ontario Court of Appeal. The following decision of the Court of Appeal was delivered by Doherty, J.A., and was released on March 8, 2013. O'Connor, A.C.J.O., took no part in the judgment.