M.M. v. Roman Catholic Church of Canada et al., 2001 MBCA 148

• Judge: Philp, Helper, Kroft, Monnin and Steel, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: September 26, 2001
• Jurisdiction: Manitoba
• Citations: 2001 MBCA 148;(2001), 160 Man.R.(2d) 265 (CA)

M.M. v. Roman Catholic Church (2001), 160 Man.R.(2d) 265 (CA);

    262 W.A.C. 265

MLB headnote and full text

Temp. Cite: [2001] Man.R.(2d) TBEd. DE.026

M.M. (plaintiff/respondent) v. Les Oblats de Marie Immaculée du Manitoba and Oblate Sisters de Saint Boniface (defendants/appellants) and The Roman Catholic Church of Canada, The Attorney General of Canada, Archidiocese of St. Boniface, Father Beaulieu, Father Ruest, Father John Doe and Sister Jane Doe (defendants)

D.R.C. (plaintiff/respondent) v. Les Oblats de Marie Immaculée du Manitoba and Oblate Sisters de Saint Boniface (defendants/appellants) and The Roman Catholic Church of Canada, The Attorney General of Canada, Archdiocese of St. Boniface, Father Plumondeau, Father John Doe and Sister Jane Doe (defendants)

(AI 00-30-04783; AI 00-30-04790; 2001 MBCA 148)

Indexed As: M.M. v. Roman Catholic Church of Canada et al.

Manitoba Court of Appeal

Philp, Helper, Kroft, Monnin and Steel, JJ.A.

September 26, 2001 and January 15, 2002.

Summary:

In 1998, the plaintiff sued the defendants for damages for breach of fiduciary duty. The plaintiff alleged that the breach occurred when she attended an Indian residential school between 1930 and 1942, when she was between the ages of three and 15. Two defendants, Les Oblats de Marie Immaculée du Manitoba and Oblate Sisters de Saint Boniface, applied to strike out the plaintiff's claim on the ground that the limitation period had expired.

The Manitoba Court of Queen's Bench, in a decision reported at 141 Man.R.(2d) 209, dismissed the application. The two defendants appealed.

The Manitoba Court of Appeal allowed the appeal.

Civil Rights - Topic 8584

Canadian Charter of Rights and Freedoms - Practice - Time for raising Charter issues - Two defendants applied to strike out the plaintiffs' claims on the ground that the limitation period had expired - A motions judge dismissed the application - The defendants appealed - On appeal, the plaintiffs submitted that the Limitation of Actions Act violated s. 15 of the Charter - The Manitoba Court of Appeal refused to consider the Charter issue - Absent exceptional circumstances, the court would not entertain constitutional arguments raised for the first time on appeal, especially without a factual context - The issue was not argued before or adjudicated by the motions judge - The factual underpinnings of a constitutional issue had not been established - The only materials on the record were the statements of claim and one supporting affidavit - See paragraphs 9 to 11.

Civil Rights - Topic 8590

Canadian Charter of Rights and Freedoms - Practice - Evidence - [See Civil Rights - Topic 8584 ].

Limitation of Actions - Topic 14

General principles - Amendment of limitation period - Effect of - [See Statutes - Topic 2263 ].

Limitation of Actions - Topic 15

General principles - Discoverability rule - Application of - Section 40A(1) of the 1931 Limitation of Actions Act extended the limitation period for persons under disability to "six years next after the person to whom the right first accrued first ceased to be under disability ..." - Section 40A(2) stated that "Notwithstanding anything in this section, no proceedings shall be taken by a person under disability at the time the right to do so first accrued to him, or by any person claiming through him, but within thirty years next after that time" - The Manitoba Court of Appeal held that the discoverability rule did not apply to the "longstop provision" (ultimate limitation period) contained in ss. 40A(1) and 40A(2) - See paragraphs 17 to 58.

Limitation of Actions - Topic 1904

Actions - General - Ultimate limitation period - [See Limitation of Actions - Topic 15 ].

Limitation of Actions - Topic 9051

Persons under disability and exemptions and exclusions - Infants - Application of limitation periods - Section 7(5) of the Manitoba Limitation of Actions Act provided that where the subject matter of a cause of action occurred when the plaintiff was under a disability, no action could be brought after the expiration of 30 years after the occurrence of the act or omission that gave rise to the cause of action - A motions judge held that s. 7(5) had no application to a plaintiff whose disability at the time the claim arose was that he or she was a minor - The Manitoba Court of Appeal disagreed - The court held that: s. 7 applied to any proceedings in which the cause of action arose when the person was or had been under a disability; it defined the outer limitation period for bringing an action in those circumstances; and there was no distinction to be drawn between incapacity caused by mental illness and incapacity deemed by virtue of infancy - See paragraphs 75 to 93.

Limitation of Actions - Topic 9305

Postponement or suspension of statute - General - Discoverability rule - [See Limitation of Actions - Topic 15 ].

Statutes - Topic 2263

Interpretation - Presumptions and rules in aid - Against interference with vested rights - Section 58 of the current Manitoba Limitation of Actions Act provided that "This Act applies to all causes of action whether they arose before or after the coming into force of this Act" - The Manitoba Court of Appeal held that s. 58 had to be read together with s. 46(1) of the Manitoba Interpretation Act which prescribed that the legislature did not intend new statute law to interfere with vested rights - The court held that the current Act governed in all cases by virtue of s. 58, unless a limitation defence had already vested under a repealed statute - See paragraphs 14 to 16 and 66 to 74.

Words and Phrases

Cause of action - The Manitoba Court of Appeal discussed the meaning of this phrase as found in s. 7(5) of the Limitation of Actions Act, R.S.M. 1987, c. L-150; C.C.S.M. c. L-150 - See paragraphs 26 to 31.

Words and Phrases

Occurrence of the act or omission that gave rise to the cause of action - The Manitoba Court of Appeal discussed the meaning of this phrase as found in s. 7(5) of the Limitation of Actions Act, R.S.M. 1987, c. L-150; C.C.S.M. c. L-150, - See paragraphs 26 to 31.

Words and Phrases

Right to do so first accrued to him - The Manitoba Court of Appeal discussed the meaning of this phrase as found in s. 40A(2) of the Limitation of Actions Act, 1931, S.M. 1931 - See paragraphs 26 to 58.

Cases Noticed:

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, appld. [para. 11].

R. v. C.J. (1997), 115 Man.R.(2d) 72; 139 W.A.C. 72 (C.A.), refd to. [para. 11].

Perrie v. Martin, [1986] 1 S.C.R. 41; 64 N.R. 195; 12 O.A.C. 269, appld. [para. 13].

Cooke v. Gill (1873), L.R. 8 C.P. 107, refd to. [para. 27].

Letang v. Cooper, [1964] 2 All E.R. 929 (C.A.), refd to. [para. 28].

Crown Zellerbach Canada Ltd. v. R. (1979), 11 C.P.C. 187 (B.C.C.A.), refd to. [para. 29].

Domco Industries Ltd. v. Mannington Mills Inc. and Congoleum Corp. (1990), 107 N.R. 198; 29 C.P.R.(3d) 481 (F.C.A.), refd to. [para. 30].

Photinopoulos v. Photinopoulos et al. (1988), 92 A.R. 122; 31 C.P.C.(2d) 267 (C.A.), refd to. [para. 30].

Grover v. Grover (1980), 17 C.P.C. 298 (B.C.C.A.), refd to. [para. 30].

Foley v. Greene (1990), 85 Nfld. & P.E.I.R. 156; 266 A.P.R. 156; 4 C.C.L.T.(2d) 309 (Nfld. T.D.), refd to. [para. 30].

July v. Neal and Home Insurance Co. (1986), 17 O.A.C. 390; 19 C.C.L.I. 230 (C.A.), refd to. [para. 30].

Consumers' Glass Co. v. Foundation Co. of Canada Ltd. (1985), 9 O.A.C. 193; 1 C.P.C.(2d) 208 (C.A.), refd to. [para. 30].

Pirelli General Cable Works Ltd. v. Oscar Faber & Partners (a firm), [1983] 1 All E.R. 65 (H.L.), refd to. [para. 34].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, dist. [para. 35].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, dist. [para. 35].

K.M. v. H.M., [1992] 3 S.C.R. 6; 142 N.R. 321; 57 O.A.C. 321, dist. [para. 36].

Raymond v. Eli Lilly & Co. (1977), 371 A.2d 170 (N.H. Sup. Ct.), refd to. [para. 36].

Fehr v. Jacob and Bethel Hospital (1993), 85 Man.R.(2d) 63; 41 W.A.C. 63 (C.A.), refd to. [para. 38].

Peixeiro v. Haberman, [1997] 3 S.C.R. 549; 217 N.R. 371; 103 O.A.C. 161, refd to. [para. 39].

Rarie v. Maxwell (1998), 131 Man.R.(2d) 184; 187 W.A.C. 184 (C.A.), refd to. [para. 39].

Bera v. Marr (1986), 1 B.C.L.R.(2d) 1 (C.A.), appld. [para. 45].

Tolofson v. Jensen and Tolofson, [1994] 3 S.C.R. 1022; 175 N.R. 161; 77 O.A.C. 81; 51 B.C.A.C. 241; 84 W.A.C. 241, refd to. [para. 71].

602533 Ontario Inc. v. Shell Canada Ltd. (1998), 106 O.A.C. 183; 37 O.R.(3d) 504 (C.A.), refd to. [para. 71].

D.D.S. v. R.H. (1993), 141 A.R. 44; 46 W.A.C. 44; 104 D.L.R.(4th) 73 (C.A.), refd to. [para. 72, footnote 1].

D.S. et al. v. S.J.T. (1996), 70 B.C.A.C. 274; 115 W.A.C. 274; 16 B.C.L.R.(3d) 1 (C.A.), refd to. [para. 72, footnote 1].

Woolett v. Matheis (1998), 125 Man.R.(2d) 228 (Q.B.), disagreed with [para. 76].

Fleming v. Manitoba et al. (2001), 155 Man.R.(2d) 4 (Q.B.), disagreed with [para. 76].

Manitoba Hydro Electric v. Inglis (John) Co. et al. (1999), 142 Man.R.(2d) 1; 212 W.A.C. 1 (C.A.), refd to. [para. 91].

R. v. Gladue (J.T.), [1999] 1 S.C.R. 688; 238 N.R. 1; 121 B.C.A.C. 161; 198 W.A.C. 161, refd to. [para. 91].

R. v. McCraw, [1991] 3 S.C.R. 72; 128 N.R. 299; 49 O.A.C. 47, refd to. [para. 92].

Beaudoin et al. v. Conley (2000), 150 Man.R.(2d) 34; 230 W.A.C. 34 (C.A.), refd to. [para. 94].

Statutes Noticed:

Limitation of Actions Act, S.M. 1931, c. 30, sect. 3(1), sect. 6 [para. 17]; sect. 40A(1), sect. 40A(2) [para. 18].

Limitation of Actions Act, R.S.M. 1987, c. L-150; C.C.S.M., c. L-150, sect. 7(1), sect. 7(5) [para. 23]; sect. 58 [para. 14].

Authors and Works Noticed:

British Columbia, Law Reform Commission, Report on the Ultimate Limitation Period: Limitation Act, Section 8 (LRC 112, March 1990), pp. 6, 7 [para. 44]; 21 [para. 33].

Mew, Graeme, The Law of Limitations (1991), pp. 7, 8 [para. 43].

Counsel:

D.K. Paterson and P. Halamandaris, for the appellants;

V.S. Savino and P.M. Jerch, for the respondents;

A. Frechette, for the Attorney General of Canada;

D.R. Davis, for the Attorney General of Manitoba;

R. Pollack, Q.C., for the Archdiocese of St. Boniface.

This appeal was heard by Philp, Helper, Kroft, Monnin and Steel, JJ.A., of the Manitoba Court of Appeal. The court delivered the following decision and addendum on September 26, 2001 and January 15, 2002, respectively.