Indexed as:
M.C.C. v. Canada (Attorney General)

Between
M.C.C., G.R., R.D. [Hereafter referred to as R.D.(1)], L.N.,
G.H., W.D., R.H., J.F.H., S.D., W.S., R.D. [Hereafter referred
to as R.D.(2)], and S.Y.W., plaintiffs, and
The Attorney General of Canada, The General Synod of the
Anglican Church of Canada, The Incorporated Synod of the
Diocese of Huron and The New England Company, defendants

[2001] O.J. No. 4163
Court File No. 29762

Ontario Superior Court of Justice
Haines J.

Heard: June 4-8, and 11-13, 2001.
Judgment: October 9, 2001.
(88 paras.)

       Practice Class action Certification Conditions precedent.

       Motion by the victims for certification pursuant to the Class Proceedings Act.  The victims were former students and the families of former students of the Mohawk Residential School. The School was operated by the New England Company until 1922, when it entered into a lease agreement with the Department of Indian Affairs.  In 1965, New England sold its interest in the School to Canada.  The victims instituted their action in October 1998.  They alleged that all of the students at the School were subjected to a sustained, systemic program of physical, emotional, spiritual and cultural abuse. They sought damages for mistreatment and inadequate care while in attendance at the School.  The claims encompassed the period from 1922 to the closure of the School in 1969.  The former students' claims that they sought to certify ranged from non-sexual assault to breach of a fiduciary duty, negligence and breaches of aboriginal and treaty rights.  The family members sought damages for loss of care, guidance and companionship and compensation for breach of a fiduciary duty.

       HELD:  Motion dismissed.  The claims based on acts or omissions that occurred prior to 1953 were statute barred under the Crown Liability and Proceedings Act.  Although the statement of claim and particulars lacked in specificity, the facts were sufficient to disclose a cause of action against the Crown and its agents with respect to the torts alleged. It could not be said on the basis of the facts pleaded that the claims were certain to fail.  Further, it was not plain and obvious that the victims did not have a cause of action for breach of fiduciary duty on the facts pleaded.  The claim for breach of aboriginal rights was pleaded with sufficient particularity and it was not plain and obvious that the pleadings did not disclose a cause of action with respect to a breach of aboriginal rights.  However, the statement of claim did not disclose a cause of action with respect to a breach of treaty rights.  It did not identify the particular treaties in issue or the provisions of the treaties relied upon to assert the claims being made.  There were no facts pleaded to establish the existence of any fiduciary duty with respect to the claims of the family members.  It was plain and obvious on the face of the pleadings that the claims being pursued by the family members could not succeed.  The definition proposed for the student class was over inclusive.  There was no cause of action that was common to all of the students who attended the School between 1922 and 1969.  There was an assumption that the Attorney General owed identical duties to each student, and to the extent that these duties were breached against one, they were breached against all.  However, the circumstances and experiences of the students were too diverse to support such assumption.  The victims also failed to demonstrate that their claims raised common issues.  Certification of the action as a class proceeding was not the preferable procedure because there was a wide variety of important individual issues that required independent inquiry.  The underlying policy objectives of access to justice, judicial economy and behaviour modification would not be served by certifying the action.

Statutes, Regulations and Rules Cited:

Class Proceedings Act, S.O. 1992, c. 6, ss. 1, 5(1), 5(1)(a), 5(1)(b), 5(1)(c), 5(1)(d), 5(1)(e).

Constitution Act, 1982, s. 35(1).

Crown Liability Act, S.C. 1952-53, c. 30, ss. 3(1), 21, 23, 24.

Crown Liability and Proceedings Act, R.S.C. 1990, c. 8.

Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, ss. 3(a), 10, 24(a).

Exchequer Court Act, R.S.C. 1952, c. 54, s. 18(c).

Family Law Act, R.S.O. 1990, c. F-3, s. 61.

Family Law Reform Act, R.S.O. 1980, c. 152, s. 60(1).

Federal Court Act, R.S.C. 1985, c. F-7.

Indian Act, S.C. 1894, c. 32.

Limitations Act, R.S.O. 1990, c. L-15, s. 145(1).

Ontario Rules of Civil Procedure, Rules 21, 21.01(1)(a), 21.02(2), 25.05.

Public Authorities Protection Act, R.S.O. 1990, c. P-38.

Trustee Act, R.S.O. 1990, c. T-23, ss. 38(2), 38(3).

       [Quicklaw note:  Supplementary reasons for judgment were released January 30, 2002.  See [2002] O.J. No. 687.]

Counsel:

Russell M. Raikes, Paul Vogel and John Peters, for the plaintiffs.
James Leising and Tom Andreopoulos, for the defendant, The Attorney General of Canada.
Robert Bell and Darilynn Allison, for the defendant, The New England Company.
Brian Daley and Lisa Gunn, for the defendant, The Incorporated Synod of the Diocese of Huron.

       HAINES J.:

INTRODUCTION

 1      This is a motion for certification pursuant to the provisions of the Class Proceedings Act, 1992, S.O. 1992, c. 6.  Sexual assault is alleged but the plaintiffs are not asking that those claims be certified.  The claims which the plaintiffs do seek to certify range from non-sexual assault to breaches of aboriginal and treaty rights.

 2      The action was commenced by statement of claim issued on October 5, 1998.  The plaintiffs are former students and the families of former students of the Mohawk Institute Residential School located in Brantford, Ontario near the Six Nations of the Grand Reserve.  The New England Company was added as a defendant to this action by order dated October 2, 2000.  The New England Company has delivered a statement of defence and has moved for a determination of certain issues pursuant to r. 21.01(1)(a).  The other defendants are awaiting the outcome of the certification motion before delivering their statements of defence.  The claim, as against The General Synod of the Anglican Church of Canada, has been withdrawn.

 3      The Mohawk Institute was one of several residential schools for First Nation's children in Canada.  It was founded by The New England Company in 1828.  The New England Company, a registered charity in England and Wales, was granted its charter in 1662.  Its mission was "to promote and propagate the Christian religion in New England and parts adjacent in America" and "to educate the native population in religion, morality, knowledge of the English language and other liberal arts and sciences in order to place them in some trade, mystery or lawful calling."  The New England Company operated the Mohawk Institute until 1922 when it entered into a lease agreement with The Department of Indian Affairs ("Canada").  Under the terms of that lease, Canada agreed to continue and maintain the Mohawk Institute as an educational institution, keep the premises in good repair and to draw its pupils, as far as possible, from the Six Nations.  It was also agreed that the pupils would be trained in the teachings and doctrines of the Church of England.  The New England Company agreed to pay the sum of 1,000 annually toward the stipend of the principal and the maintenance of the Institute.  Under the terms of the lease, The New England Company was entitled to enter the premises in order to view the state of repair and to assure itself that the Institute was being conducted in accordance with the provisions of the lease.  That lease expired in 1943.  In 1947 The New England Company and Canada entered into a second lease in terms similar to those of the first lease but without any provision for a contribution by The New England Company towards the operation of the Institute.  In December 1965, The New England Company sold its interest in the Mohawk Institute to Canada for $100,000.

 4      The former students of the Mohawk Institute are seeking damages for mistreatment and inadequate care while in attendance at the Mohawk Institute.  Their families claim pursuant to s. 61 of the Family Law Act, R.S.O. 1990, c. F.3. The claims by the former students encompass the period from 1922 to the closure of the Mohawk Institute in 1969.  The proposed representative plaintiffs are from various First Nations located in Southwestern Ontario.  One or more of these plaintiffs attended the Mohawk Institute during the period 1943 to 1967.

 5      The students who attended the Mohawk Institute were native children, i.e. Indians within the meaning of the Indian Act S.C. 1894, c. 32 as amended.  They were generally between the ages of six and sixteen.  There were approximately 150 to 180 students attending the school in any given year and the division by gender was roughly equal.  Residential schools like the Mohawk Institute have been referred to as "total institutions".  The following is a description of such schools which the Law Commission of Canada refers to at p. 57 of its report entitled Restoring Dignity:  Responding to Child Abuse in Canadian Institutions:

Regardless of shifts in naming - industrial, boarding or residential - all residential schools were "total institutions".  The residential school was a place where a large number of people lived and worked together, cut off from both the wider First Nation and mainstream societies.  In contrast to "day schools" where children came and went on a daily basis, residential schools separated children from their families and communities for extended periods of time, in some instances, for years.

Further evidence of residential schools as total institutions is attested to by the fact they were places within which all activities of the children - eating, sleeping, playing, working, speaking - were subject to set time tables and to regulations determined by staff comprised of supervisors and teachers who, for the most part, belonged to a variety of Christian denominations.

 6      The plaintiffs allege that an atmosphere of fear, intimidation and brutality permeated the Mohawk Institute.  It is alleged the children were regularly and frequently beaten, sometimes by strapping, and at other times by punches, slaps or kicks by the staff.  In addition to the physical abuse, the plaintiffs also allege that the students at the Mohawk Institute were:

(a)

given little or no emotional support;

(b)

forced to work without pay on the farm operation at the school;

(c)

forced to attend church and participate in other religious activities;

(d)

forbidden to speak their native languages;

(e)

given food of very poor quality in insufficient amounts that left them "constantly hungry";

(f)

provided with insufficient and inadequate clothing; and

(g)

provided with insufficient and inadequate recreational equipment and activities.

 7      In short, it is alleged by the plaintiffs that all of the students at the Mohawk Institute were subjected to a sustained, systematic programme of physical, emotional, spiritual and cultural abuse.

CLASS PROCEEDINGS

 8      A class action is defined in the report of the Attorney General's Advisory Committee on Class Action Reform (1990) at p. 15:

A class action is an action brought on behalf of, or for the benefit of numerous persons having a common interest.

It is a procedural mechanism that is intended to provide an efficient means to achieve redress for widespread harm or injury by allowing one or more persons to bring the action on behalf of the many.

 9      The Class Proceedings Act, 1992 provides for the certification of an action as a class proceeding where certain criteria are satisfied.  S. 5(1) of the Act reads as follows:

5(1)

The court shall certify a class proceeding on a motion under section 2, 3 or 4 if,


(a)

the pleadings or the notice of application discloses a cause of action;

(b)

there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;

(c)

the claims or defences of the class members raise common issues;

(d)

a class proceeding would be the preferable procedure for the resolution of the common issues; and

(e)

there is a representative plaintiff or defendant who,


(i)

would fairly and adequately represent the interests of the class,

(ii)

has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

(iii)

does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

5(1)(a) - DO THE PLEADINGS DISCLOSE A CAUSE OF ACTION?

The Test

 10      The test for establishing a cause of action for the purpose of s. 5(1)(a) is the same as that applied under r. 21.01(1)(b) on a motion to strike out a pleading on the ground that it discloses no reasonable cause of action or defence. In Hunt v. Carey Canada Inc. [1990] 2 S.C.R. 959 (S.C.C.) Wilson J. set out the test in the following terms at p. 980:

... Assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action?  As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat".  Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case.

In making this determination all allegations of fact pleaded must be accepted as proved unless they are patently ridiculous or incapable of proof and the statement of claim must be read as generously as possible with a view to accommodating any inadequacies in form.  Also, at this early stage in the proceedings, the court should not dispose of matters of law that are not settled.  See Abdool v. Anaheim Management Ltd. (1995), 21 O.R. (3d) 453 (Div. Ct.) at p. 469 and Nash v. Ontario (1995), 27 O.R. (3d) 1 (Ont. C.A.) at p. 6.

 11      The claims of the plaintiff students are framed as an action for breach of fiduciary duty, negligence, assault, battery, and breach of aboriginal and treaty rights. The plaintiffs allege that the defendants were collectively responsible for the operation of the Mohawk Institute and by either passively permitting or actively directing and encouraging the mistreatment of students, breached the fiduciary duty and duty of care they owed to the students. The plaintiffs also assert that the efforts of the defendants to repress and extinguish their native languages and cultures and to indoctrinate them into an Anglo-Christian culture constituted a breach of their aboriginal and treaty rights.

 12      The defendants maintain the pleadings disclose no cause of action and make their submissions on the basis that the Incorporated Synod of the Diocese of Huron and The New England Company were agents of the Crown with respect to the operation of the Mohawk Institute as alleged by the plaintiffs.

Conduct Prior to 1953

 13      The defendants contend that all claims based on acts or omissions occurring prior to 1953 are statute barred by virtue of s. 24 of the Crown Liability Act S.C. 1952-53, c. 30.  At common law, the Crown, or its agents, cannot be sued in tort and any right of action against the Crown is derived from statute:  McArthur v. Canada [1943], Ex. C.R. 77 at p. 84.  Prior to 1953, s. 18(c) of the Exchequer Court Act R.S.C. 1952, c. 54 provided for a limited statutory exception to the common law immunity of the Crown by granting the Exchequer Court exclusive jurisdiction to deal with claims "resulting from the negligence of any officer or servant of the Crown while acting within the scope of his duties or employment." This exception to the Crown's common law immunity was then expanded with the enactment of the 1953 Crown Liability Act. Section 3(1) of that Act provides:

The Crown is liable in tort for the damages for which, if it were a private person of full age and capacity, it would be liable,


(a)

in respect of a tort committed by a servant of the Crown or,

(b)

in respect of a breach of duty attaching to the ownership, occupation, possession or control of property.

This provision was continued in the Crown Liability and Proceedings Act R.S.C. 1985, c. C-50 and R.S.C. 1990 c. 8.

 14      The 1953 Crown Liability Act gave provincial courts jurisdiction to deal with claims under s. 3(1) but it also included a provision that limited the Crown's liability to acts that occurred after the proclamation of the Act. Subsection 24(1) reads:

No proceedings shall be taken against the Crown under this Act in respect of any act, omission, transaction, matter or thing occurring or existing before the day on which this Act was assented to.

 15      The defendants submit that this provision bars the taking of proceedings against the Crown or her agents for anything that occurred or existed before May 14, 1953, the date the Act came into force.  They also contend that the Crown Liability and Proceedings Act is the only vehicle available for bringing proceedings against the Attorney General of Canada in a provincial court:  ss. 21 and 23.  The defendants, therefore argue that insofar as the plaintiffs purport to bring this action against the Crown pursuant to the Crown Liability and Proceedings Act and against the other defendants as Crown agents, they have failed to plead a cause of action that this court has jurisdiction to entertain with respect to anything that occurred before May 14, 1953.  I agree with this submission.

 16      It seems to me that the language of s. 24(1) is clear and its meaning unambiguous.  It may be that the plaintiffs have a cause of action they can pursue under the Exchequer Court Act or its successor, the Federal Court Act, R.S.C., 1985 c. F-7, as amended, but, in my view, it is plain and obvious that any claims arising from acts or omissions that predate May 14, 1953 cannot succeed in this court under the Crown Liability and Proceedings Act.

The Limitations Act and Laches

 17      The Mohawk Institute closed in 1969.  The statement of claim was issued in 1998.  The defendants submit that all of the acts and omissions complained of are well beyond the times permitted for the commencement of such actions under the Limitations Act R.S.O. 1990, c. L.15 and the Public Authorities Protection Act R.S.O. 1990, c. P.38.  They concede that the principle of discoverability may extend the limitation period for the claims of sexual assault, but the plaintiffs are not seeking to certify those claims.  The defendants maintain that the discoverability rule does not apply to the other claims advanced by the plaintiffs but, in the alternative, submit that, to the extent the principle of discoverability might extend the operation of the limitation period or bar application of the equitable defence of laches, facts must be pleaded to support their availability.

 18      The principle of reasonable discoverability was articulated as a general rule by LeDain J. in Central Trust Co. v. Rafuse [1986] 2 S.C.R. 147 (S.C.C.) at p. 224:

... a cause of action arises for purposes of a limitation period when the material facts on which it is based have been discovered or ought to have been discovered by the plaintiff by the exercise of reasonable diligence ...

 19      In applying the discoverability rule to sexual assault in M.(K.) v. M.(H), [1992] 3 S.C.R. 6, (S.C.C.) LaForest J. stated at p. 35:

In my view the only sensible application of the discoverability rule in a case such as this is one that establishes a prerequisite that the plaintiff have a substantial awareness of the harm and its likely cause before the limitations period begins to toll.  It is at the moment when the incest victim discovers the connection between the harm she has suffered and her childhood history that her cause of action crystallizes.

 20      The equitable defence of laches arises when it is demonstrated that a plaintiff in delaying the institution of an action has either acquiesced in the defendant's conduct or prejudiced the defendant's position.  The importance of acquiescence as an element of laches is stated in Halsbury's Laws of England Vol. 16, (4th ed.) (London:  Butterworths, 1992) para. 927:

The chief element in laches is acquiescence, and sometimes this has been described as the sole ground for creating a bar in equity by the lapse of time. Acquiescence implies that the person acquiescing is aware of his rights and is in a position to complain of an infringement of them.

The operation of a limitation period or the application of the equitable defence of laches may also be affected by fraudulent concealment.  That doctrine is also succinctly articulated in Halsbury's at para. 927:

Where a plaintiff is kept in ignorance of his cause of action through the defendant's fraud, time begins to run only from the time when the plaintiff discovers the truth or ought reasonably to have done so.

 21      The defendants contend that the plaintiffs cannot rely on any of these principles or doctrines because they have failed to plead any facts to support their application.  The plaintiffs maintain they are not required to plead to anticipated defences in the statement of claim but say they intend to do so in reply.  The defendants submit that the plaintiffs are precluded from pleading to these matters in reply since they have failed , within the time required, to deliver their reply to the statement of defence of The New England Company in which these defences are raised.

 22      The plaintiffs refer to r. 25.05 in support of their contention that they are not yet required to deliver any reply at this time.  Rule 25.05 states:

Pleadings in an action are closed when,


(a)

The plaintiff has delivered a reply to every defence in the action or the time for delivery of the reply has expired; and

(b)

Every defendant who is in default in delivering a defence in the action has been noted in default.

 23      Whether or not the time prescribed by the Rules for the delivery of the plaintiffs' reply to the statement of defence of The New England Company has passed, it is my view that it would be unfair to accede to the defendants' submission when two of them have elected to withhold delivery of their statements of defence pending resolution of this motion.  In any event, as indicated by Adams J. in The Chippewas of Sarnia Band v. A.G. Canada et al (1996), 29 O.R. (3d) 549 (Gen. Div.) at 565 it is premature to deal with these issues on this motion:

All the defendant land owners have raised defences based on delay and acquiescence.  The possible availability of these defences, however, cannot alter the conclusion, at this stage of the proceedings, that the pleadings disclose a cause of action.  Statutes of limitations merely bar a plaintiff's remedy and not the cause of action.  Moreover, because a limitations defence when pleaded might be subject to exceptions, a defendant is not entitled to strike out a claim as disclosing no reasonable cause of action merely because a good limitations defence may exist.

In my opinion the disposition of these issues requires a factual determination that could, perhaps, be addressed on a motion for judgment or the trial of a preliminary issue but cannot be resolved on this motion.

The Trustee Act

 24      Subsections 38(2) and (3) of the Trustee Act, R.S.O. 1990, c. T.23 provide:

38(2)

Except in cases of libel and slander, if a deceased person committed or is by law liable for a wrong to another in respect of his or her person or to another person's property, the person wronged may maintain an action against the executor or administrator of the person who committed or is by law liable for the wrong.

(3)

An action under this section shall not be brought after the expiration of two years from the death of the deceased.

 25      The defendants suggest that all the persons who are alleged to have committed the torts complained of are likely deceased and that many have probably been deceased for some years.  It is known that Cannon Zimmerman, the last principal at the Mohawk Institute, died on June 12, 1982. Since the school closed in 1969 it seems likely the defendants are correct and most, if not all, of the principals and staff are deceased.  Subsection 38(3) precludes any action being commenced against the estates of deceased persons after the expiration of two years from their deaths and the defendants contend that where the action is statute barred against the individual's estate, it is also statute barred against the Crown by operation of ss. 3(a), 10 and 24(a) of the Crown Liability and Proceedings Act.  Those sections of the Act read as follows:

3.

The Crown is liable in tort for the damages for which, if it were a private person of full age and capacity, it would be liable


(a)

in respect of a tort committed by a servant of the Crown;


....

10.

No proceedings lie against the Crown by virtue of para. 3(a) in respect of any act or omission of a servant of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or the servant's personal representative.


....

24.

In any proceedings against the Crown, the Crown may raise


(a)

any defence that would be available if the proceedings were a suit or an action in a competent court between subject and subject;

The interaction of these provisions is explained by Rosenberg J.A. in Al's Steakhouse and Tavern Inc. v. Deloitte and Touche (1997), 102 O.A.C. 144 at p. 155:

Section 3(a) renders the Crown liable in tort to the same extent as "if it were a private person of full age and capacity".  S. 10 bars proceedings against the Crown by virtue of s. 3(a) unless the act or omission by the Crown's servant would, apart from the Act, "have given rise to a cause of action in tort against that servant or the servant's personal representative".  Similarly, if the defence (s. 24(a)) or the limitation period (s. 32) would be available to an alleged tortfeasor when sued as an individual, the Crown, in proceedings under the Crown Liability and Proceedings Act, should be able to rely upon the same defence or limitation period.

 26      It has also been determined that discoverability does not apply to s. 38(3) of the Trustee Act.  In Waschkowski v. Hopkinson Estate (2000), 47 O.R. (3d) 370, (Ont. C.A.) at p. 372-373 Abella J.A. follows the reasoning of Major J. in Peixeiro v. Haberman, [1997] 3 S.C.R. 549 (S.C.C.) and concludes:

The primary interpretive conclusion of Major J.'s analysis is that the application of the discoverability rule depends on the wording of the limitation provision. The ancillary conclusion is that the discoverability rule does not apply when, based on that wording, the limiting time runs from a fixed event unrelated to the injured party's knowledge or the basis of the cause of action: (see Grenier v. Canadian General Insurance Co. (1999), 43 O.R. (3d) 715, 32 C.P.C. (4th) 267 (C.A.), per Morden A.C.J.O.)

In s. 38(3) of the Trustee Act, the limitation period runs from a death.  Unlike cases where the wording of the limitation period permits the time to run, for example, from "when the damage was sustained" (Peixeiro) or when the cause of action arose (Kamloops), there is no temporal elasticity possible when the pivotal event is the date of a death.  Regardless of when the injuries occurred or matured into an actionable wrong, s. 38(3) of the Trustee Act prevents their transformation into a legal claim unless that claim is brought within two years of the death of the wrongdoer or the person wronged.

The underlying policy considerations of this clear time limit are not difficult to understand.  The draconian legal impact of the common law was that death terminated any possible redress for negligent conduct.  On the other hand, there was a benefit to disposing of estate matters with finality.  The legislative compromise in s. 38 of the Trustee Act was to open a two year window, making access to a remedy available for a limited time without creating indefinite fiscal vulnerability for an estate.

 27      The plaintiffs concede that s. 38(3) of the Trustee Act operates to preclude lawsuits against the estates of deceased persons after two years has passed but submit that they are not pursuing the estates of the deceased staff.

 28      The defendants' response is found in the Crown Liability and Proceeding Act and the analysis of Rosenberg J.A. in Al's Steakhouse and Tavern, supra.  They maintain the Crown's liability is entirely vicarious by virtue of s. 3(a) of the Act and therefore, if its servants cannot be held responsible for torts they committed, neither can the Crown and its agents.  This is a compelling argument but it is dependent on a finding of fact that all of the offending staff were deceased at least two years prior to the action being commenced.  This is not admitted and cannot be established on this motion.

 29      The defendants also submit that to the extent the Crown's liability is entirely vicarious, it must be based on acts or omissions of its servants.  The defendants submit that the claims in tort as pleaded do not identify acts or omissions of Crown servants with sufficient particularity to disclose a sustainable cause of action against the Crown or its alleged servants.  The defendants argue that in order to disclose a cause of action, the pleadings must contain sufficient facts to support the conclusion that:

(1)

the conduct of the servant or agent was authorized by the Crown; or

(2)

the conduct of the servant or agent consisted of unauthorized acts so connected with authorized acts that they may be regarded as modes, albeit improper modes of doing an authorized act.

See Bazley v. Currie, [1999] 2 S.C.R. 534 (S.C.C.) at p. 543 and Jacobi v. Griffiths, [1999] 2 S.C.R. 570 (S.C.C.) at 596.

 30      The statement of claim and the particulars provided are, in some respects, lacking in specificity but accepting the facts as pleaded, I am satisfied that those facts are sufficient to disclose a cause of action against the Crown and its agents with respect to the torts alleged.  In my view, it cannot be said on the basis of the facts pleaded that those claims are certain to fail.

Fiduciary Duty

 31      In order to sustain a cause of action for breach of fiduciary duty, the plaintiffs must establish (a) a fiduciary relationship between the parties, (b) a fiduciary obligation or duty that arises out of that relationship and (c) a breach of that duty by the defendants.  A fiduciary relationship arises where the following are demonstrated:

(1)

the fiduciary has scope for the exercise of some discretion or power;

(2)

the fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary's legal or practical interests; and

(3)

the beneficiary is particularly vulnerable to or, at the mercy of, the fiduciary holding the discretion or power.

See Frame v. Smith (1987), 42 D.L.R. (4th) 81 (S.C.C.) at pp. 88-89 and LAC Minerals Ltd. v. International Cronna Resources Ltd. (1989), 61 D.L.R. (4th) 14 (S.C.C.) at pp. 62-63.

 32      A further requirement for establishing a cause of action based on breach of fiduciary duty was identified in A.(C). v. Critchley (1998), 166 D.L.R. (4th) 475 (B.C.C.A.) where McEachern C.J.B.C. reviewed a number of cases relating to fiduciary duties that the Supreme Court of Canada had considered in the years preceding Critchley and at p. 500 concluded:

... it would be a principled approach to confine recovery based upon fiduciary duties to cases of the kind where, in addition to other usual requirements such as vulnerability and the exercise of discretion, the defendant personally takes advantage of a relationship of trust or confidence for his or her direct or indirect personal advantage.

 33      The defendants submit that the plaintiffs' pleadings are deficient in that they contain no material facts to establish the requirements of the alleged fiduciary relationship.  Alternatively, if the pleadings do disclose a fiduciary duty on the Crown, it is the contention of the defendants that any such duty arises from statute or public law and would not give rise to any private remedy against the Crown or its agents where they are discharging a statutory or public duty.

 34      This principle is acknowledged but also qualified in Guerin v. The Queen, [1984] 2 S.C.R. 335 where the Musqueam Indian Band sued the Crown for breach of fiduciary duty in relation to its conduct in the surrender and leasing of certain reserve lands.  In considering whether the Crown had a fiduciary obligation in the circumstances, Dickson J. (as he then was) states the following at pp. 384 and 385 of Guerin:

It is sometimes said that the nature of fiduciary relationships is both established and exhausted by the standard categories of agent, trustee, partner, director, and the like.  I do not agree.  It is the nature of the relationship, not the specific category of actor involved that gives rise to the fiduciary duty.  The categories of fiduciary, like those of negligence, should not be considered closed.  See, e.g. Laskin v. Bache & Co. Inc. (1971), 23 D.L.R. (3d) 385 (Ont. C.A.), at p. 392: Goldex Mines Ltd. v. Revill (1974), 7 O.R. (2d) 216 (Ont. C.A.) at p. 224.

It should be noted that fiduciary duties generally arise only with regard to obligations originating in a private law context.  Public law duties, the performance of which requires the exercise of discretion, do not typically give rise to a fiduciary relationship.  As the "political trust" cases indicate, the Crown is not normally viewed as a fiduciary in the exercise of its legislative or administrative function.  The mere fact, however, that it is the Crown which is obligated to act on the Indians' behalf, does not, of itself, remove the Crown's obligation from the scope of the fiduciary principle.  As was pointed out earlier, the Indians' interest in the land is an independent legal interest.  It is not a creation of either the legislative or executive branches of government.  The Crown's obligation to the Indians with respect to that interest is therefore not a public law duty.  While it is not a private law duty in the strict sense either, it is nonetheless in the nature of a private law duty.  Therefore, in this sui generis relationship, it is not improper to regard the Crown as a fiduciary.

 35      In my opinion, it is not plain and obvious that the plaintiffs have no cause of action for breach of fiduciary duty on the facts pleaded.

Aboriginal and Treaty Rights

 36      There are two issues to be addressed in relation to these claims:

(1)

Do the plaintiffs have status to bring the claims?

(2)

Is a claim for breach of aboriginal and/or treaty rights made out on the pleadings?

 37      After listing some 30 allegations to support their claim for breach of fiduciary duty, the plaintiffs address their claim for breach of aboriginal and/or treaty rights in paragraphs 47, 48, 49 and 50 of the statement of claim which read as follows:

47.

Further, or in the alternative, the plaintiffs plead that the aforesaid conduct of the defendants constitutes negligence, assault, battery and/or a breach of aboriginal and/or treaty rights of the Indian students who attended the Mohawk Institute Residential School.

48.

The plaintiffs state that their language and traditional spiritual beliefs are an integral part of their aboriginal cultures.  The plaintiffs state that the defendants' efforts to repress and extinguish their languages, and spiritual beliefs, and to indoctrinate them into an Anglo-Christian culture was a breach of their aboriginal rights.

49.

Further, the plaintiffs state that their First Nations are primarily based on Reserves located in what is now the Province of Ontario.  These Reserves were created through land surrender Treaties negotiated between the Crown and various First Nations.

50.

The plaintiffs state that the Reserves established through negotiation were intended by the First Nations to provide a place where members of the First Nations could continue to live together and retain their distinctive cultures.  The plaintiffs state that the conduct of the defendants aforesaid, in the effort to promote assimilation through the Mohawk Institute Residential School was a breach of the Treaty rights of the plaintiffs to continue to live as Indians on Reserve and to continue their distinct cultures.

The plaintiffs allege that the defendants, The Incorporated Synod of the Diocese of Huron and The New England Company, were agents of the Department of Indian Affairs with respect to the operation and administration of the Mohawk Institute and as such are liable for these breaches.

 38      In order to understand the claims it is necessary to understand the nature of the rights which the plaintiffs allege were violated.

 39      Section 35(1) of the Constitution Act, 1982 provides:

The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

 40      In his analysis of s. 35(1) in R. v. Van Der Peet (1996), 137 D.L.R. (4th) 289 at pp. 302-303 Lamer C.J.C. comments on the status of aboriginal rights before the Constitution Act, 1982 became law:

When the court identifies a constitutional provision's purposes, or the interests the provision is intended to protect, what it is doing in essence is explaining the rationale of the provision; it is articulating the reasons underlying the protection that the provision gives.  With regard to s. 35(1), then, what the court must do is explain the rationale and the foundation of the recognition and affirmation of the special rights of aboriginal peoples; it must identify the special status that aboriginal peoples have within Canadian Society as a whole.

In identifying the basis for the recognition and affirmation of aboriginal rights it must be remembered that s. 35(1) did not create the legal doctrine of aboriginal rights; aboriginal rights existed and were recognized under the common law:  Calder v. Attorney General of British Columbia, [1973] S.C.R. 313, 34 D.L.R. (3d) 145 p (S.C.C.).  At common law aboriginal rights did not, of course, have constitutional status, with the result that Parliament could, at any time, extinguish or regulate those rights: Kruger v. The Queen, [1978] 1 S.C.R. 104 at p. 112, 34 C.C.C. (2d) 377, 75 D.L.R. (3d) 434; R. v. Derriksan (1976), 71 D.L.R. (3d) 159, 31 C.C.C. (2d) 575 (S.C.C.); It is this which distinguishes the aboriginal rights recognized and affirmed in s. 35(1) from the aboriginal rights protected by the common law. Subsequent to s. 35(1) aboriginal rights cannot be extinguished and can only be regulated or infringed consistent with the justificatory test laid out by this court in Sparrow, [1990] 1 S.C.R. 1075, supra.

The fact that aboriginal rights predate the enactment of s. 35(1) could lead to the suggestion that the purposive analysis of s. 35(1) should be limited to an analysis of why a pre-existing legal doctrine was elevated to constitutional status.  This suggestion must be resisted.

The pre-existence of aboriginal rights is relevant to the analysis of s. 35(1) because it indicates that aboriginal rights have a stature and existence prior to the constitutionalization of those rights and sheds light on the reasons for protecting those rights; however, the interests protected by s. 35(1) must be identified through an explanation of the basis for the legal doctrine of aboriginal rights, not through an explanation of why that legal doctrine now has constitutional status.

In my view, the doctrine of aboriginal rights exists, and is recognized and affirmed by s. 35(1), because of one simple fact:  when Europeans arrived in North America, aboriginal peoples were already here living in communities on the land, and participating in distinctive cultures, as they had done for centuries.  It is this fact, and this fact above all others, which separates aboriginal peoples from all other minority groups in Canadian society and which mandates their special legal, and now constitutional, status.

 41      The effect then of s. 35(1) is to extend constitutional protection to practices, traditions and customs that are integral to the distinctive cultures of aboriginal groups.  The defendants submit, however, that aboriginal rights are communal rights which belong to the band as a whole and not to individual members of the band:  See R. v. Marshall, [1999] 3 S.C.R. 533 at p. 547; R. v. Sundown, [1999] 1 S.C.R. 393 at p. 407 and Blueberry River Indian Band v. Canada, [2001] F.C.J. No. 725 (F.C.A.) at para. 16.

 42      The defendants also argue that prior to 1982 aboriginal rights did not enjoy constitutional protection and could be extinguished or displaced by federal legislation. They submit, therefore, that even assuming the acts and omissions complained of were breaches of aboriginal rights, such breaches all occurred prior to 1982, were not then proscribed by law and consequently did not give rise to a private law duty that would attract any liability or remedy. I am not satisfied that this proposition is settled in law.

 43      It is settled that aboriginal rights were recognized at common law prior to the Constitution Act, 1982 and were enforceable.  Since 1982 aboriginal and treaty rights have been asserted on many occasions to successfully shield aboriginals from prosecution:  See e.g., R. v. Adams [1996] 3 S.C.R. 101; R. v. Marshall, supra and R. v. Sundown, supra. However, I am not aware of the adjudication of any claim for damages for breach of aboriginal rights or any judicial determination of the capacity or entitlement of an individual to maintain such a claim.

 44      The weight of authority that has characterized and defined aboriginal rights to date seems to present an imposing impediment to this claim but, in my view, it would be premature to conclude there is no cause of action given the test that must be applied and the admonition against disposing of matters of law, at this stage, that are novel or unsettled.

I am satisfied that the claim for breach of aboriginal rights is pleaded with sufficient particularity and it is not in my view, plain and obvious that the pleadings disclose no cause of action with respect to a breach of aboriginal rights.

 45      I do, however, take a somewhat different view with respect to the claim for breach of treaty rights. Neither the statement of claim nor the response to particulars identify the particular treaties in issue or the provisions of those treaties relied upon to assert the claims being made. This could perhaps be remedied by amendment but, as it now stands, I find the statement of claim discloses no cause of action with respect to a breach of treaty rights.  Also, I should not leave this issue without noting that neither The Incorporated Synod of the Diocese of Huron nor The New England Company are parties to the alleged treaties and there are no facts pleaded that implicate them in any breach.

The Claims of the Proposed Family and Siblings Classes

 46      The plaintiffs have proposed that:

(1)

The Siblings Class be defined as "the parents and siblings of all former students who attended the Mohawk Institute Residential School"; and

(2)

The Family Class be defined as "the spouses (legal and common law) and children of all former students who attended the Mohawk Institute Residential School".

 47      The plaintiffs representing these proposed classes claim damages for breach of fiduciary duty and loss of care, guidance and companionship.  The plaintiffs rely on s. 61 of the Family Law Act, R.S.O. 1990 c. F.3 and state the nature of their claim in para. 54 of the statement of claim which reads:

54.

Further, members of the Siblings Class and members of the Families Class have suffered and continue to suffer, loss of care, guidance and companionship which arises directly from the physical, mental, emotional and spiritual trauma sustained directly, or indirectly, by the students who attended the Mohawk Institute Residential School.  The plaintiffs state that the harm suffered by the Siblings Class and members of the Families Class was reasonably foreseeable, and was caused by the conduct of the defendants, their servants, agents, or employees for whom they are in law responsible.

 48      At common law there is no cause of action available to relatives for loss of care, guidance and companionship resulting from death or injury suffered by a family member.  It was only with the passage of the Family Law Reform Act, R.S.O. 1980, c. 152 in 1978 that a statutory cause of action for such losses was created.  The provision of the Family Law Reform Act that created the cause of action was s. 60(1) which provides as follows:

60(1)

Where a person is injured by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part II, children, grandchildren, parents, grandparents, brothers and sisters of  the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.

(2)

The damages recoverable in a claim under subsection (1) may include,


(d)

an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the injured person if the injury had not occurred.

Section 60 is virtually identical to the current s. 61 of the Family Law Act.  The plaintiffs submit that s. 61 creates a statutory cause of action for all persons who are within the defined classes of family members.

 49      In Yuill  v. McMullen (1979), 100 D.L.R. (3d) 370 at 373 affirmed 110 D.L.R. (3d) 256 (Ont. C.A.) it was held that s. 60 of the Family Law Reform Act was not retrospective so as to confer a right of action for acts or omissions that occurred before the Act came into force.  The defendants argue that since the events that give rise to the claims of the proposed siblings and family classes all occurred well before the passage of s. 60 of the Family Law Reform Act, those claims are not sustainable at law and do not disclose a cause of action.  I agree.

 50      The defendants also submit that the statute affords a right of action only to those who stood in the necessary familial relationship at the time the impugned conduct occurred.  Again, I agree.  See Pole v. Hendry (1987), 61 O.R. (2d) 486 (Ont. C.A.) at p. 489.  A claimant cannot marry or be born into a claim under the statute.

 51      In addition to their claim for loss of care, guidance and companionship, the siblings and family members have also claimed "compensation and/or damages for breach of a fiduciary duty".  This appears in the pleadings as no more than a bald statement of entitlement in the prayer for relief.

There are no facts pleaded to establish the existence of any such duty or the basis for the claim.  This aspect of the claim cannot be sustained as pleaded.

 52      I, therefore, conclude that it is plain and obvious on the face of the pleadings that the claims being pursued by the family members cannot succeed.

5(1)(b) - AN IDENTIFIABLE CLASS OF TWO OR MORE PERSONS

 53      The defendants submit that the plaintiffs have failed to demonstrate that there is an identifiable class of two or more persons that would be represented by the representative plaintiffs.

 54      The underlying purpose of the Class Proceedings Act, 1992 is to provide a mechanism for the redress of mass wrongs which are linked together by an element of commonality.

At first blush, there appears to be a compelling element of commonality in this case.  The claim as alleged relates to children of common origin (aboriginal) being sent to the same educational institution and there subjected to sustained systemic abuse.  This is the factual core that gives rise to the proposed class definitions.

 55      The plaintiffs estimate that approximately 1,400 students attended the Mohawk Institute during the period identified.  The number of persons in the siblings class is estimated at 4,200 and the number in the family class at 7,000.

 56      In Bywater v. Toronto Transit Commission (1998), 27 C.P.C. (4th) 172 (Gen. Div.) Winkler J. explains the three-fold purpose of the class definition at p. 175:

... a) it identifies those persons who have a potential claim for relief against the defendant; b) it defines the parameters of the law suit so as to identify those persons who are bound by its result; and lastly, c) it describes who was entitled to notice pursuant to the Act.

Thus, for the mutual benefit of the plaintiff and the defendant, the class definition ought not to be unduly narrow nor unduly broad.

 57      In order to satisfy the certification requirement that there is an identifiable class, it is not sufficient to simply demonstrate that the group can be ascertained.  The price of admission to the class is a shared cause of action that engages common issues between the proposed class members and the representative plaintiffs.  This concept of commonality is a controlling feature that prevents the class from becoming over-inclusive and potentially unmanageable.

 58      Although it is well established that the pleadings must be taken at face value in determining whether a cause of action is disclosed under s. 5(1)(a) of the Class Proceedings Act, evidence is necessary for the proper consideration of the s. 5(1)(b), (c) and (d) criteria: Hollick v. Toronto (City) (1999), 46 O.R. (3d) 257 (Ont. C.A.) at pp. 263-264.

 59      In Lau v. Bayview Landmarks Inc., [1999] O.J. No. 4060 (S.C.J.), at paras. 28 and 29 Winkler J. notes the need for a proper evidentiary basis in the determination of an appropriate class definition and the different requirements depending on whether the type of action can be characterized as objective or subjective:

For example, a product's liability case, an action arising from a mass disaster or other similar situations represent what may be characterized as "objective" or objectively determinable claims.  The harm alleged is not dependent on the plaintiff having certain characteristics but rather arises from the existence of a state of affairs outside the norm, the facts of which are sufficient to establish on the "plain and obvious" test that a cause of action exists. ...

On the other hand, a subjective claim requires more extensive evidence to establish the existence, and size, of the proposed class.  A subjective claim is characterized by allegations of the plaintiff's injury from a reaction to a situation that is neither inherently harmful nor apparently wrongful.  The subjective class of claims encompass those where a plaintiff's allegations of harm raise a question as to the tolerance level of other individuals, ...  In such cases, defining the class in mere geographical or temporal terms will rarely be sufficient without further evidence.  Although location or time parameters are objective, a subjective cause of action, by its very nature, may not be shared by all, or for that matter, any of the persons so described.  As a result, the class would not be defined with sufficient precision.

The defendants submit that the class definitions proposed in this action are over-inclusive as they are not in any objectively ascertainable way limited by commonality between their potential members.

 60      The theory of the plaintiffs' case is succinctly summarized in para. 77 of the defendants' factum:

The essence of the plaintiffs' claims and for which certification is sought, is that each were forcibly removed from their home and cultural environments to be placed in a culturally hostile setting where they were there subjected to various forms of physical abuse with a resulting loss of their aboriginal culture.  It is posited that by mere attendance at the Mohawk Institute, each and every student has suffered harm that is legally recompensible based on recognized causes of action.

 61      In my view, the evidence which is before the court in the affidavits of the representative plaintiffs and the transcripts of their cross-examinations does not support this theory.  It does not appear that any of the representative plaintiffs were forcibly removed from their homes.  They were all admitted to the Mohawk Institute with the knowledge and consent of their parents or guardians under different circumstances.  In one instance, a plaintiff was sent to the Mohawk Institute when her father moved from one island, where there was a school, to take a job at a hunting lodge where there was no school; in another instance, the plaintiff's mother was confined to hospital with tuberculosis; and in several other instances, the Children's Aid Society had intervened because of problems identified in those plaintiffs' homes before they were admitted to the Mohawk Institute.  Some plaintiffs did state that they believed their parents were coerced with the threat of withdrawal of their welfare benefits if they did not cooperate in the admission of their children to the Mohawk Institute.

 62      A review of the evidence from the representative plaintiffs discloses that the experiences of the students who attended the Mohawk Institute over its long history were very diverse.  The evidence revealed that some and, with respect to certain of the following items, many:

a)

Attended other schools where they were instructed in the English language before attending Mohawk Institute;

b)

Spoke English well before they were enrolled at Mohawk Institute;

c)

Were practicing members of a major Christian religion prior to admission;

d)

Spoke a native tongue and continued to do so after attendance at Mohawk Institute;

e)

Spoke little to no native language before attendance;

f)

Engaged in particular native religious practices before and after attendance at Mohawk Institute;

g)

Did not receive excessive physical discipline;

h)

Did not receive inadequate educational instruction, food, and recreational facilities and opportunities.

 63      In my opinion, the definition proposed for the student class is over-inclusive.  There is no cause of action that I can identify as being common to all the students who attended the Mohawk Institute between 1922 and 1969.  There is an assumption implicit in the student class definition that the defendants owed identical duties to each student, and to the extent these duties were breached against one, they were breached against all.  The circumstances and experiences of the students are far too diverse to support that assumption.

5(1)(c) - COMMON ISSUES

 64      The defendants also submit that the applicants have failed to demonstrate that the claims of the plaintiffs raise common issues.  Section 1 of the Class Proceedings Act, 1992 defines common issues as:

a)

common but not necessarily identical issues of fact, or

b)

common but not necessarily identical issues of law that arise from common but not necessarily identical facts;

 65      The plaintiffs must demonstrate that litigating the proposed common issues in the context of a class proceeding will:

a)

decide and dispose of some aspect of the case that will advance the litigation in a legally material way; and,

b)

obviate the need to make a separate determination of the common issues with respect to each claim.

See Anderson v. Wilson (1998), 37 O.R. (3d) 235 (Div. Ct.) at p. 243 and Rosedale Motors Inc. v. Petro Canada Inc. (1998), 42. O.R. (3d) 776 (Gen. Div.) at p. 785.

 66      In this case, the defendants submit that assuming the causes of action pleaded are common to each of the class members, a separate inquiry into the particular circumstances of each person will be required to determine whether the elements of the proposed causes of action are established. This means that every class member would have to participate in a separate trial in order to establish liability.

 67      The defendants contend that not even the determination of a duty of care can be a common issue.  They rely on the reasoning in Carom v. Bre-Ex Minerals Limited (1999), 44 O.R. (3d) 173 (S.C.J.) at pp. 211-218; varied on other grounds (2000), 51 O.R. (3d) 236 (Ont. C.A.).  I am not convinced that the analysis in Carom is necessarily applicable in this case.  But, in any event, I do not see that it is necessary to pursue that issue in order to demonstrate an absence of commonality with respect to the claims founded in negligence.  I will assume for the purpose of this analysis that the defendants, as operators of the school, owed a duty of care to each of the students.  This is only the first step toward establishing liability for negligence.  There must, of course, be a breach of that duty of care and that determination requires an examination of the applicable standard of care.  The claims as pleaded span the years 1922 to 1969.  The most recent claims arise from incidents that occurred 32 years ago, while the oldest of the claims date back 79 years.  Attitudes have changed.  Standards of education, discipline, nutrition and health have all changed. Many of the alleged common elements in these claims are moving targets.

 68      The absence of commonality is also manifested in the consideration of causation.  There is no negligence "in the air".  There must be actual damage caused by breach of the duty of care before there can be a finding of liability.  This also applies to the claims for breach of fiduciary duty and the intentional torts of assault and battery.

 69      Commonality is also suspect in the claims for breach of aboriginal rights.  As already noted, those rights relate to practices and customs that are integral to the distinctive culture of an aboriginal group.  Those practices may vary from one aboriginal group to another and it is apparent from the pleadings and particulars provided that the members of the proposed student class came from disparate aboriginal origins.

 70      The evidence demonstrates that the students came from different family backgrounds, stayed at the school for varying periods of time, had diverse experiences while there and went on to different circumstances when they left.  In paragraph 52 of the statement of claim, the plaintiffs list 23 types of damages suffered as a result of the treatment they received at the Mohawk Institute.  The list includes claims for loss of self-esteem, reduced earning capacity, an impaired ability to express emotions in a normal and healthy manner, psychological disorders including depression and anxiety leading to attempted suicide, post-traumatic stress disorder, physical pain and suffering and loss of enjoyment of life.  It is a comprehensive lexicon of alleged losses.

 71      Given the evidence of the many and varied challenges encountered by the students both before and after they attended the Mohawk Institute it would not be possible to determine which losses, if any, are attributable to the conduct of the defendants without conducting a separate inquiry for each student.  Such an inquiry would also be required to establish the amount of damages for each claimant.

 72      Counsel for the plaintiffs submit that there was a common level of abuse or mistreatment suffered by every student who attended the Mohawk Institute and suggest that the determination of that threshold constitutes a common issue. They argue that each student should be entitled to recover an equal amount of compensation for having suffered a common level of abuse and thereafter should be entitled to pursue separate claims to establish their entitlement to damages in excess of that amount.  In my view, that equates recovery with attendance and ignores the inherently individual nature of the claims and the necessity of proving the nexus between the breach of duty and the loss.  Damages are awarded for losses sustained as a result of injury suffered and the amount awarded depends on the circumstances of the individual claimant.  There is, in my view, no basis in law for a common assessment as proposed by the plaintiffs.

 73      The difficulties facing the plaintiffs in this case are in many respects similar to those encountered in Hollick, supra.  In that case the proposed representative plaintiff sought to certify an action for nuisance arising out of the operation of a landfill site by the defendant.  It was alleged that some 30,000 persons living in the environs of the landfill site were adversely affected by its operation.  After reviewing the definition of legal nuisance as set out in St. Helen's Smelting Company v. Tipping (1865), 11 H.L. Cas. 641 at p. 650; 11 E.R. (1483), Carthy J.A. states the following at pp. 266 and 267 of Hollick:

It follows that liability for nuisance in the present case in favour of an individual property owner or resident, can only be established by evidence that the particular individual personally suffered sensible discomfort or evidence that emissions from the defendant's premises have interfered with the reasonable enjoyment of their properties.

We are not dealing with a plume that enveloped a neighbourhood for a defined period where, upon proof of the event, it can be assumed that everyone was similarly affected by a legal nuisance.  The events complained of occurred sporadically over a number of years and with varying intensity of odour.  The members of the proposed class live at various distances and directions from the landfill site and, of course, wind directions and velocity are constantly changing.  The evidence also suggests, as an added complication, that there are alternative potential sources of odours in the community.

This group of 30,000 people is not comparable to patients with implants, the occupants of a wrecked train or those who have been drinking polluted water.  They are individuals whose lives have been affected, or not affected, in a different manner and degree and each may or may not be able to hold the respondent liable for a nuisance.  A trial judge dealing with liability as a common issue would immediately discover that there was no economy in the proceedings and that the trial would be unmanageable.  Every incident complained of would have to be separately examined together with its impact upon every household and a conclusion reached as to whether each owner or occupier had been impacted sufficiently that a finding of nuisance is justified.  To add to the already impossible task, complaints of odours are by their nature subjective and thus would have to be individually assessed in order to ascertain whether emissions from the respondent site had materially affected each class member's enjoyment of property or caused a personal discomfort justifying compensation.

No common issue other than liability was suggested and I cannot devise one that would advance the litigation.  An issue such as "did the defendant emit pollutants into the atmosphere over a six year period, and if so, when, and to what extent?" would result in a virtual Royal Commission into the operation of this landfill site without any measurable advance in the litigation.

An issue such as "did the defendants mistreat the students at the Mohawk Institute from 1922 to 1969, and if so, when and to what extent?" would, in my view, produce the same result.

 74      The limitations and laches defences also make these claims difficult, if not impossible to deal with in common.  This action was commenced long past the proscription dates that would apply to the claims arising from the allegations of negligence, assault and battery.  To the extent any such claims may be saved by the discoverability rule, there will have to be an independent inquiry conducted of each member of the class to determine if they took action within a reasonable time once they were aware of the harm and its likely cause.  Similarly, with respect to the claims for breach of fiduciary duty and aboriginal rights for which no limitation periods exist, the doctrines of laches and fraudulent concealment will have to be addressed and an inquiry of each claimant would be required to determine if they acquiesced or took action within a reasonable time after discovering the cause of action that was fraudulently concealed.

 75      In Hollick, Carthy J.A. found that his analysis and conclusion were similar to those of Winkler J. in Mouhteros v. DeVry Canada Inc. (1998), 41 O.R. (3d) 63 (Gen. Div.), where Winkler J. was addressing a claim that the defendant had misrepresented the quality of the programs and facilities offered at the educational institution it was operating.  I am also attracted to that analysis and conclusion which is found at p. 73:

A presence of individual issues will not be fatal to certification.  Indeed, virtually every class action contains individual issues to some extent.  In the instant case, however, what common issues there may be are completely subsumed by the plethora of individual issues, which would necessitate individual trials for virtually each class member.  Each student's experience is idiosyncratic, and liability would be subject to numerous variables for each class member.  Such a class action would be completely unmanageable.

See also Control Tech Engineering Inc. v. Ontario Hydro (1998), 72 O.T.C. 351 (Gen. Div.) at para. 16.

5(1)(d) - PREFERABLE PROCEDURE

 76      It will be apparent from my comments above that I have determined that certification of this action as a class proceeding is not the preferable procedure because there is such a wide variety of important individual issues that will require independent inquiry.  I cannot see that the underlying policy objectives of access to justice, judicial economy and behaviour modification would be served by certifying this action.

5(1)(e) - THE REPRESENTATIVE PLAINTIFFS

 77      Section 5(1)(e) requires that the court be satisfied that there is a representative plaintiff who,

(i)

would fairly and adequately represent the interests of the class,

(ii)

has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding,

(iii)

does not have, on the common issues for the class, an interest in conflict with the interest of other class members.

 78      I am satisfied that the representative plaintiffs would fairly and adequately represent the interests of the other class members and it does not appear to me that the representative plaintiffs have any interest in conflict with the interests of the other class members.  I do, however, have concern with respect to the proposed plan.

 79      This is a complex action and it is understood that the plan is a proposal that is subject to amendment and adjustment.  Nonetheless, central to this proposed plan is the conduct of a common trial to establish a common award of damages to which each student of the Mohawk Institute from 1922 to 1969 would be entitled by virtue of their attendance at that institution.  In my view, this proposal is, for the reasons I have already stated, unworkable.

CONCLUSION

 80      I have concluded that the statement of claim does disclose a cause of action with respect to certain claims of the student plaintiffs.  I have found, however, that the plaintiffs have failed to establish there is an identifiable class and have failed to demonstrate their claims raise common issues.  In the result, the motion for certification is dismissed.

RULE 21 MOTION

 81      Rule 21.01(1) reads

A party may move before a judge,


a)

for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial savings of costs; or,

b)

to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,


and the judge may make an order or grant judgment accordingly.

 82      In its motion brought pursuant to Rule 21.01(1)(a), The New England Company seeks a determination before trial of what it characterizes as the following questions of law:

(1)

Is there a cause of action against The New England Company based on allegations of cultural assimilation as alleged in paragraphs 19, 20, 46, 50, 51 and 52 of the statement of claim?

(2)

As a charitable donor, does The New England Company in law owe a fiduciary obligation to the plaintiffs?

(3)

Can The New England Company be vicariously liable for the alleged conduct of the perpetrator of sexual and physical abuse as a simple lessor of the Mohawk Institute land and as a charitable donor?

(4)

Are one or all of the causes of action as pleaded in the plaintiffs' statement of claim barred by reason of the provisions of the Limitations Act, R.S.O. 1990, c. L.15, s. 145(1) or pursuant to the doctrine of laches or the Trustee Act, R.S.O. 1990, c. T.23.

(5)

Does this Honourable Court have jurisdiction to award damages for alleged historical wrongs dating back generations with the individuals involved long since deceased?

(6)

Are the secondary claims in this action asserted under the provisions of s. 61 of the Family Law Act, R.S.O. 1990, c. F.3 as amended, sustainable against The New England Company?

 83      The New England Company also seeks leave to introduce affidavit evidence pursuant to Rule 21.02(2) which provides:

No evidence is admissible on a motion,


(a)

under clause 1(a), except with leave of a judge or on consent of the parties;

(b)

under clause l(b).

The plaintiffs object to the introduction of any evidence on the motion.

 84      Although the motion is brought pursuant to Rule 21.01(1)(a), the questions posed are ones of mixed fact and law and the relief being sought is a finding that the Statement of Claim discloses no cause of action against The New England Company.

 85      I have considered the several issues raised on this motion in my analysis of the s. 5(1)(a) criteria on the motion for certification.  It will be apparent from my reasons that in spite of the acknowledged strength of the defences raised I am satisfied, accepting as I must, the facts as pleaded, that the Statement of Claim does disclose a cause of action.

 86      The evidence offered on this motion is an affidavit with some 40 exhibits explaining the historical relationship of The New England Company with the Mohawk Institute.  I do not consider it appropriate to admit this evidence on a Rule 21 motion.  In my view, the issues raised by The New England Company would be more properly engaged on a motion for summary judgment under Rule 20 where it could be determined on evidence whether there is any genuine issue for trial between The New England Company and the plaintiffs.

 87      The Rule 21 motion is therefore dismissed.

COSTS

 88      I will hear submissions with respect to costs on a convenient date to be arranged by counsel through the office of the trial coordinator.

HAINES J.

QL Update:  20011102
cp/qi/d/qlsar/qldah/qlmjb