R.S. et al. v. Saskatchewan, 2014 SKQB 260

• Judge: Keene, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: August 19, 2014
• Jurisdiction: Saskatchewan
• Citations: 2014 SKQB 260;(2014), 453 Sask.R. 295 (QB)

R.S. v. Sask. (2014), 453 Sask.R. 295 (QB)

MLB headnote and full text

Temp. Cite: [2014] Sask.R. TBEd. SE.027

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

(2010 Q.B.G. No. 1694; 2014 SKQB 260)

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

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Keene, J.

August 19, 2014.

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 adjourned the application so that various deficiencies and concerns identified by the court could be rectified by the plaintiffs.

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.

Government Programs - Topic 1962

Medicare - Administration - Subrogation rights - From 1955 to the present, the Government of Saskatchewan (Saskatchewan) operated two residential facilities for individuals with intellectual disabilities - The two plaintiffs 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 court considered some concerns raised by Saskatchewan, including one relating to a claim on behalf of the Ministry of Health under s. 19 of the Department of Health Act - Saskatchewan argued that this claim was essentially redundant, the theory being that the Province did not need to concern itself with the payment of the Department of Health account - The Saskatchewan Court of Queen's Bench agreed that this made sense - However, this was not argued by the plaintiff's law firm and the court assumed that it was not necessary to consider this claim unless the firm wished to advance such an argument - See paragraph 45.

Limitation of Actions - Topic 208

Practice - Time for determination of compliance with limitation period - The Saskatchewan Court of Queen's Bench held that a potential limitation defence should not be considered during a class action certification application - See paragraphs 49 to 53.

Person of Unsound Mind - Topic 1287

Legal proceedings - Representation of incompetents - Guardian ad litem - [See both Practice - Topic 209.4 ].

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - [See Limitation of Actions - Topic 208 ].

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Considerations (incl. when class action appropriate) - From 1955 to the present, the Government of Saskatchewan (Saskatchewan) operated the Saskatchewan Training School (STS) later renamed the Valley View Centre (VVC) and also the North Park Centre (NPC) 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 had attended or resided at the two facilities and were living at the date the claim was issued (September 16, 2010) - Saskatchewan argued that the transition from STS to VVC was not only a name but also in substantive programming and this created evidentiary and procedural issues - The Saskatchewan Court of Queen's Bench disagreed - The issue was not what the name was or what changes in programming may have been instituted; it was what was going on at the front line level at STS and then VVC - This was not an impediment to certification - See paragraph 48.

Practice - Topic 209.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Appointment or replacement of representative plaintiff - In a proposed class action, the defendant questioned the suitability of the plaintiff K.'s litigation guardian, T.D. - The Saskatchewan Court of Queen's Bench referred to a decision by Gerein, J., which pointed out that the representative plaintiff need not be perfect - Accordingly, the court would not disqualify T.D. from this role and found her suitable as a litigation guardian to assist K. as a representative plaintiff - See paragraphs 55 and 56.

Practice - Topic 209.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Appointment or replacement of representative plaintiff - In a proposed class action, the defendant questioned S.'s suitability as a representative plaintiff - The Saskatchewan Court of Queen's Bench was not prepared to accept S. as an appropriate representative plaintiff unassisted - The defendant had satisfied the court that S. lacked the intellectual ability to carry out these duties - However, a litigation guardian could be utilized to assist him - Therefore, if an appropriate litigation guardian could be found to assist S., and with the necessary amendments to the claim, the action could proceed on that basis - If not, then the claim would have to be amended to delete him as a representative plaintiff - See paragraph 57.

Practice - Topic 209.7

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Evidence and proof - From 1955 to the present, the Government of Saskatchewan (Saskatchewan) operated the Saskatchewan Training School (STS) later renamed the Valley View Centre (VVC) and also the North Park Centre (NPC) 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 had attended or resided at the two facilities and were living at the date the claim was issued (September 16, 2010) - The Saskatchewan Court of Queen's Bench considered some concerns raised by Saskatchewan, including the lack of evidence regarding NPC - The court rejected the plaintiffs' argument that the court should assume that the alleged abuse and systematic wrong-doings of Saskatchewan at STS or VVC should be visited upon NPC by implication without the need to provide evidence specific to that institution - There was a difference between some basis in fact and no basis in fact - The court allowed the plaintiffs, under s. 71 of the Class Actions Act, to file evidence that remedied this problem if they so chose in accordance with its adjournment instructions - Failure to do so would be fatal to any action against NPC - See paragraph 46.

Practice - Topic 209.7

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Certification - Evidence and proof - From 1955 to the present, the Government of Saskatchewan (Saskatchewan) operated the Saskatchewan Training School (STS) later renamed the Valley View Centre (VVC) and also the North Park Centre (NPC) 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 had attended or resided at the two facilities and were living at the date the claim was issued (September 16, 2010) - Saskatchewan had not delivered a statement of defence but had filed three affidavits and its brief(s) in response to the motion - Before considering each certification requirement, the court considered some concerns raised by the defendant, including Saskatchewan's argument that the time period for 1955 to the present was too broad because there was no evidence relating to a number of those years - The Saskatchewan Court of Queen's Bench rejected the argument - Evidence was not required for every year - See paragraph 47.

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. particulars, production, pleadings, etc.) - 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 - 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 identified various deficiencies and concerns - The case was not ready for certification - However, the court should not simply dismiss this application but should engage the intent of the Class Actions Act and allow for a reasonable opportunity to improve it - See paragraphs 1 to 64.

Practice - Topic 3073.1

Applications and motions - Applications - Adjournments - [See Practice - Topic 210.5 ].

Cases Noticed:

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. 46].

M.D. et al. v. Ontario, [2010] O.T.C. Uned. 1726; 2010 ONSC 1726, refd to. [para. 46].

R.S. v. Ontario, [2012] O.T.C. Uned. 2681; 2012 ONSC 2681, refd to. [para. 47].

Daniels et al. v. Canada (Attorney General), [2003] 6 W.W.R. 72; 230 Sask.R. 120; 2003 SKQB 58, not folld. [para. 49].

Ross et al. v. Saskatchewan et al. (2013), 431 Sask.R. 88; 2013 SKQB 373, disagreed with [para. 49].

Cloud et al. v. Canada (Attorney General) et al., [2001] O.T.C. 767 (Sup. Ct.), affd. (Ont. Div. Ct.), revd. (2004), 192 O.A.C. 239 (C.A.), refd to. [para. 50].

MacQueen et al. v. Nova Scotia et al. (2011), 311 N.S.R.(2d) 354; 985 A.P.R. 354; 2011 NSSC 484, refd to. [para. 52].

F.P. v. Saskatchewan (2004), 249 Sask.R. 42; 325 W.A.C. 42; 2004 SKCA 59, refd to. [para. 54].

Frey et al. v. BCE Inc. et al. (2007), 312 Sask.R. 4; 2007 SKQB 328, appld. [para. 55].

Alves et al. v. MyTravel Canada Holidays Inc. et al., [2012] 2 W.W.R. 259; 377 Sask.R. 27; 528 W.A.C. 27; 342 D.L.R.(4th) 427; 2011 SKCA 118, refd to. [para. 63].

Counsel:

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

Darryl J. Brown (as he then was) and Audrey Olson, 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 August 19, 2014.