Richard et al. v. British Columbia, (2009) 270 B.C.A.C. 61 (CA)

• Judge: Saunders, Low and Neilson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 30, 2009
• Jurisdiction: British Columbia
• Citations: (2009), 270 B.C.A.C. 61 (CA);2009 BCCA 185

Richard v. B.C. (2009), 270 B.C.A.C. 61 (CA);

    454 W.A.C. 61

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. MY.024

William Joseph Richard and W.H.M. (appellants/plaintiffs) v. Her Majesty the Queen in Right of the Province of British Columbia (respondent/defendant)

(CA035869; 2009 BCCA 185)

Indexed As: Richard et al. v. British Columbia

British Columbia Court of Appeal

Saunders, Low and Neilson, JJ.A.

April 30, 2009.

Summary:

In this class proceeding, the plaintiffs claimed that children who were patients at the province's Woodlands School suffered physical, sexual, emotional and psychological abuse. In 2005, the plaintiffs' then counsel, Poyner Baxter, took the view that claims arising before August 1, 1974, when the Crown Proceedings Act came into effect, were precluded on the basis of Crown immunity. A tentative settlement was reached for claims arising after that date. The plaintiffs applied for an order removing Poyner Baxter as their counsel due to conflict of interest. Poyner Baxter opposed the motion and sought an order, inter alia, amending the class to include only claims arising after August 1, 1974.

The British Columbia Supreme Court, in a decision reported at [2007] B.C.T.C. Uned. E18, ordered Poyner Baxter removed as counsel for the plaintiffs and declined to make the other orders requested. After new counsel was appointed for the plaintiffs, the province applied for an order amending the class to exclude all claims arising before August 1, 1974.

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. 120, allowed the application. The plaintiffs appealed.

The British Columbia Court of Appeal dismissed the appeal.

Crown - Topic 4440

Actions by and against Crown in right of a province - Proceedings against the Crown Acts - Retrospectivity - In this class proceeding, the plaintiffs claimed that children who were patients at the province's Woodlands School suffered physical, sexual, emotional and psychological abuse - In 2005, the plaintiffs' then counsel, Poyner Baxter, took the view that claims arising before August 1, 1974, when the Crown Proceedings Act (allowing the Crown to be sued) came into effect, were precluded on the basis of Crown immunity - A tentative settlement was reached for claims arising after that date - The plaintiffs applied for an order removing Poyner Baxter as their counsel due to conflict of interest - Poyner Baxter opposed the motion and sought an order, inter alia, amending the class to include only claims arising after August 1, 1974 - Butler, J., ordered Poyner Baxter removed as counsel for the plaintiffs and declined to make the other orders requested - After new counsel was appointed for the plaintiffs, the province applied for an order amending the class to exclude all claims arising before August 1, 1974 - Satanove, J., allowed the application, following the decision in Arishenkoff et al. v. British Columbia (2005 BCCA) - The plaintiffs appealed, asserting, inter alia, that claims in breach of fiduciary duty were not barred by Arishenkoff - The British Columbia Court of Appeal dismissed the appeal - In Arishenkoff, the plaintiff's action was dismissed on the basis that Crown immunity precluded the action in respect of events that occurred prior to August 1, 1974 - This claim was indistinguishable from the claim in Arishenkoff and the court was bound by that decision - The court rejected the argument that Arishenkoff addressed only claims in tort against the Crown - While the issue in Arishenkoff was framed as a discussion in tort, there was no reason to construe it so narrowly - A claim for damages for breach of fiduciary duty was blocked by Crown immunity in the same way as an action for damages in tort - It was plain and obvious that the claim could not succeed - See paragraphs 26 to 64.

Crown - Topic 4542.1

Actions by and against Crown in right of a province - Capacity of Crown to be sued - Statutory immunity - [See Crown - Topic 4440 ].

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings (incl. validity of statutes) - In this class proceeding, the plaintiffs claimed that children who were patients at the province's Woodlands School suffered physical, sexual, emotional and psychological abuse - In 2005, the plaintiffs' then counsel, Poyner Baxter, took the view that claims arising before August 1, 1974, when the Crown Proceedings Act came into effect, were precluded on the basis of Crown immunity - A tentative settlement was reached for claims arising after that date - The plaintiffs applied for an order removing Poyner Baxter as their counsel due to conflict of interest - Poyner Baxter opposed the motion and sought an order, inter alia, amending the class to include only claims arising after August 1, 1974 - Butler, J., ordered Poyner Baxter removed as counsel for the plaintiffs and declined to make the other orders requested - After new counsel was appointed for the plaintiffs, the province applied for an order amending the class to exclude all claims arising before August 1, 1974 - Satanove, J., allowed the application - The plaintiffs appealed, asserting, inter alia, that the application was res judicata because a similar application brought by Poyner Baxter was dismissed by Butler, J. - The British Columbia Court of Appeal dismissed the appeal - The province's application was not caught by issue estoppel because the issue was not decided on its merits by Butler, J., who side-stepped the issue, properly, due to his conclusions regarding the removal of Poyner Baxter - This allowed new counsel to form an opinion on the issue and provide advice - On these unusual circumstances, nothing could be made of the fact that Poyner Baxter's application was dismissed, rather than adjourned - See paragraphs 13 to 25.

Estoppel - Topic 387

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters or claims available in prior proceedings - [See Estoppel - Topic 386 ].

Cases Noticed:

Arishenkoff et al. v. British Columbia (2005), 218 B.C.A.C. 76; 359 W.A.C. 76; 47 B.C.L.R.(4th) 1; 2005 BCCA 481, leave to appeal refused (2006), 355 N.R. 395; 235 B.C.A.C. 321; 388 W.A.C. 321 (S.C.C.), folld. [para. 2].

Richard v. British Columbia, [2005] B.C.T.C. 372; 2005 BCSC 372, refd to. [para. 7].

Richard et al. v. British Columbia, [2006] B.C.T.C. Uned. 765; 2006 BCSC 1462, refd to. [para. 7].

Richard et al. v. British Columbia, [2007] B.C.T.C. Uned. E18; 2007 BCSC 1107, refd to. [para. 8].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397; 47 D.L.R.(3d) 544, refd to. [para. 14].

Danyluk v. Ainsworth Technologies Inc. et al., [2001] 2 S.C.R. 460; 272 N.R. 1; 149 O.A.C. 1; 2001 SCC 44, refd to. [para. 14].

Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), [1967] 1 A.C. 853; [1966] 2 All E.R. 536 (H.L.), refd to. [para. 16].

K.L.B. v. British Columbia - see Davies et al. v. British Columbia et al.

Davies et al. v. British Columbia et al. (1999), 121 B.C.A.C. 43; 198 W.A.C. 43; 64 B.C.L.R.(3d) 23; 1999 BCCA 210, leave to appeal refused (2000), 256 N.R. 395; 143 B.C.A.C. 158; 235 W.A.C. 158 (S.C.C.), refd to. [para. 28].

Arishenkoff et al. v. British Columbia, [2002] B.C.T.C. 488; 1 B.C.L.R.(4th) 368; 2002 BCSC 488, refd to. [para. 32].

Arishenkoff et al. v. British Columbia, [2002] B.C.T.C. 951; 4 B.C.L.R.(4th) 58; 2002 BCSC 951, refd to. [para. 33].

Arishenkoff et al. v. British Columbia (2004), 198 B.C.A.C. 164; 324 W.A.C. 164; 30 B.C.L.R.(4th) 1; 2004 BCCA 299, refd to. [para. 35].

Norberg v. Wynrib, [1992] 2 S.C.R. 226; 138 N.R. 81; 9 B.C.A.C. 1; 19 W.A.C. 1; 92 D.L.R.(4th) 449, refd to. [para. 39].

C.A. et al. v. J.W.C. - see C.A. et al. v. Critchley et al.

C.A. et al. v. Critchley et al. (1998), 113 B.C.A.C. 248; 184 W.A.C. 248; 60 B.C.L.R.(3d) 92; 166 D.L.R.(4th) 475 (C.A.), refd to. [para. 39].

K.L.B. et al. v. British Columbia et al., [2003] 2 S.C.R. 403; 309 N.R. 306; 187 B.C.A.C. 42; 307 W.A.C. 42; 2003 SCC 51, refd to. [para. 39].

Esquimalt and Nanaimo Railway Co. v. Wilson, [1920] A.C. 358; 50 D.L.R. 371 (P.C.), refd to. [para. 40].

Pawlett v. Attorney General (1668), Hard. 465; 145 E.R. 550 (Ex. Ct.), refd to. [para. 40].

Dyson v. Attorney General, [1911] 1 K.B. 410 (C.A.), refd to. [para. 40].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161; 13 D.L.R.(4th) 321, refd to. [para. 41].

Nocton v. Ashburton (Lord), [1914] A.C. 932; [1914-15] All E.R. Rep. 45 (H.L.), refd to. [para. 41].

Haymour Holdings Ltd. v. British Columbia (1984), 59 B.C.L.R. 249 (C.A.), refd to. [para. 42].

Cloud et al. v. Canada (Attorney General) et al. (2004), 192 O.A.C. 239; 73 O.R.(3d) 401; 247 D.L.R.(4th) 667 (C.A.), reving. (2003), 65 O.R.(3d) 492; 41 C.P.C.(5th) 226 (Div. Ct.), leave to appeal refused (2005), 344 N.R. 192; 207 O.A.C. 400 (S.C.C.), refd to. [paras. 42, 59].

Tobin v. R. (1864), 16 C.B.N.S. 310; 143 E.R. 1148 (C.P.), refd to. [para. 47].

Feather v. R. (1865), 6 B. & S. 257; 122 E.R. 1191 (Q.B.), refd to. [para. 47].

Hodge v. Attorney General (1839), 3 Y. & C. Ex. 343; 160 E.R. 734 (Ex. Eq.), refd to. [para. 49].

R. v. Central Railway Signal Co., [1933] S.C.R. 555; [1933] 4 D.L.R. 737, refd to. [para. 52].

R. v. Bradley, [1941] S.C.R. 270; [1941] 2 D.L.R. 737, refd to. [para. 53].

Canada (Attorney General) v. Law Society of British Columbia - see Jabour v. Law Society of British Columbia et al.

Jabour v. Law Society of British Columbia et al., [1982] 2 S.C.R. 307; 43 N.R. 451; 137 D.L.R.(3d) 1, refd to. [para. 53].

British Columbia Power Corp. v. British Columbia Electric Co., [1962] S.C.R. 642; 34 D.L.R.(2d) 196, refd to. [para. 55].

Wigg v. Irish Free State (Attorney General), [1927] A.C. 674 (P.C.), refd to. [para. 55].

Watkins v. Olafson et al., [1989] 2 S.C.R. 750; 100 N.R. 161; 61 Man.R.(2d) 81; 61 D.L.R.(4th) 577, refd to. [para. 66].

Counsel:

J.J. Arvay, Q.C., B. Elwood and D.A. Klein, for the appellants;

D.C. Prowse, Q.C., K. Horsman and W.K. Branch, for the respondent;

A. Murray, Q.C., for the Public Guardian and Trustee of British Columbia.

This appeal was heard at Vancouver, British Columbia, on October 2-3, 2008, by Saunders, Low and Neilson, JJ.A., of the British Columbia Court of Appeal. On April 30, 2009, Saunders, J.A., delivered the following reasons for judgment for the court.