R.S. et al. v. Saskatchewan, (2015) 466 Sask.R. 98 (QB)

• Judge: Keene, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: June 23, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 466 Sask.R. 98 (QB);2015 SKQB 183

R.S. v. Sask. (2015), 466 Sask.R. 98 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. JL.058

R.S. and M.K. by her litigation guardian T.D. (plaintiffs) v. The Government of Saskatchewan (defendant)

(2010 Q.B.G. No. 1694; 2015 SKQB 183)

Indexed As: R.S. et al. v. Saskatchewan

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Keene, J.

June 23, 2015.

Summary:

From 1955 to the present, the Government of Saskatchewan (Saskatchewan) operated two residential facilities for individuals with intellectual disabilities. The plaintiffs, S. and K., the latter through her litigation guardian, moved for certification of the proceeding under s. 6(1) of the Class Actions Act on behalf of a class comprised of all individuals who had attended or resided at the two facilities and were living at the date the claim was issued (September 16, 2010). The claim sought damages against the Crown for negligence and breach of fiduciary duty in connection with the alleged mistreatment of the class members throughout the period. Saskatchewan had not delivered a statement of defence but had filed three affidavits and its brief(s) in response to the motion.

The Saskatchewan Court of Queen's Bench, in a decision reported at (2014), 453 Sask.R. 295, adjourned the application so that various deficiencies and concerns identified by the court could be rectified by the plaintiffs.

The Saskatchewan Court of Queen's Bench dismissed the application for certification.

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.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - From 1955 to the present, the Government of Saskatchewan operated the Saskatchewan Training School later renamed the Valley View Centre and also the North Park Centre from 1961 to 1988 - The plaintiffs, S. and K., moved for certification of the proceeding under s. 6(1) of the Class Actions Act on behalf of a class comprised of "All individuals who resided at the Saskatchewan Training School or Valley View Centre and who were living on September 16, 2010." - S. and North Park Centre were now removed from the litigation - The Saskatchewan Court of Queen's Bench held that, were it to grant certification, more detail regarding the class would be reasonable - In that way there could at least be an attempt to avoid confusion for those residents who had no complaint and those who alleged wrongdoing - Accordingly, the court was prepared to accept the following class identification: "All individuals who resided at the Saskatchewan Training School or Valley View Centre and who were living on September 16, 2010, and who while so residing suffered physical, sexual, emotional and/or psychological abuse and have suffered injury, loss or damage as a result thereof." - See paragraphs 8 to 10.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - From 1955 to the present, the Government of Saskatchewan operated the Saskatchewan Training School later renamed the Valley View Centre and also the North Park Centre from 1961 to 1988 - The plaintiffs, S. and K., moved for certification of the proceeding under s. 6(1) of the Class Actions Act - S. and North Park Centre were now removed from the litigation - The Saskatchewan Court of Queen's Bench refused to include a claim for punitive damages where Whiten v. Pilot Insurance Co. (2002 S.C.C.) militated against punitive damages in these proceedings - Further, Queen's Bench Rule 3-93(2)(b) required the plaintiff to provide sworn evidence as to the reason the representative plaintiff believed the common issues existed for the rest of the class members - There was no such evidence here that the defendant operated the institution "in such a way as to fraudulently conceal any breach of duty by it to the class members" - Therefore that common issue could not be approved - See paragraphs 14 and 15.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - From 1955 to the present, the Government of Saskatchewan operated the Saskatchewan Training School later renamed the Valley View Centre and also the North Park Centre from 1961 to 1988 - The plaintiffs, S. and K., moved for certification of the proceeding under s. 6(1) of the Class Actions Act - S. and North Park Centre were now removed from the litigation - The Saskatchewan Court of Queen's Bench refused to certify the proceeding where it could not find that it was the preferable procedure - The court was attracted to the defendant's argument that the complexity of institutional systemic abuse cases defied class action litigation - Fortifying this was the court's concern that the evidence did not reveal a notable number of abuse victims - It would be more fair, efficient and manageable to have individual claimants come forward to prosecute their individual case - The issues of causation, limitation periods, damages, etc. seemed better suited for individual cases - However, the court stated that it was not presenting an immutable principle that all institutional cases should not be certified - Further, the issue of behavioural modification was moot since the institution itself was being closed - See paragraphs 17 to 31.

Practice - Topic 209.7

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Evidence and proof - [See first Practice - Topic 209.3 ].

Cases Noticed:

Hoffman et al. v. Monsanto Canada Inc. et al. (2007), 293 Sask.R. 89; 397 W.A.C. 89; 2007 SKCA 47, refd to. [para. 3].

Pederson et al. v. Saskatchewan (Minister of Social Services) et al. (2014), 456 Sask.R. 54; 2014 SKQB 416, folld. [para. 14].

Whiten v. Pilot Insurance Co. et al., [2002] 1 S.C.R. 595; 283 N.R. 1; 156 O.A.C. 201; 2002 SCC 18, refd to. [para. 14].

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. 17].

Rumley et al. v. British Columbia, [2003] B.C.T.C. 234; 12 B.C.L.R.(4th) 121; 2003 BCSC 234, agreed with [para. 17].

L.R. v. British Columbia - see Rumley et al. v. British Columbia.

T.L. v. Director of Child Welfare (Alta.) (2006), 395 A.R. 327; 23 C.P.C.(6th) 276; 2006 ABQB 104, refd to. [para. 22].

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, refd to. [para. 24].

Markson v. MBNA Canada Bank (2007), 224 O.A.C. 71; 282 DLR (4th) 385; 2007 ONCA 334, leave to appeal refused (2007), 383 N.R. 381; 248 O.A.C. 396 (S.C.C.), refd to. [para. 25].

Counsel:

E.F. Anthony Merchant, Q.C. and Aroosha Sadaghianloo, for the plaintiffs;

Michael J. Morris and Laura Mazenc, for the defendant.

This application was heard by Keene, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following decision on June 23, 2015.