Date:
20130524
Docket:
T-1542-12
Citation:
2013 FC 546
Ottawa, Ontario,
May 24, 2013
PRESENT: The
Honourable Mr. Justice Harrington
PROPOSED CLASS PROCEEDING
BETWEEN:
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CHIEF SHANE
GOTTFRIEDSON, ON HIS OWN BEHALF AND ON BEHALF OF ALL THE MEMBERS OF THE
TK’EMLÚPS TE SECWÉPEMC INDIAN BAND AND THE TK’EMLÚPS TE SECWÉPEMC INDIAN
BAND,
CHIEF GARRY FESCHUK,
ON HIS OWN BEHALF AND ON BEHALF OF ALL MEMBERS OF THE SECHELT INDIAN BAND AND
THE SECHELT INDIAN BAND,
VIOLET CATHERINE
GOTTFRIEDSON, DOREEN LOUISE SEYMOUR,
CHARLOTTE ANNE
VICTORINE GILBERT, VICTOR FRASER, DIENA MARIE JULES, AMANDA DEANNE BIG SORREL
HORSE, DARLENE MATILDA BULPIT,
FREDERICK JOHNSON,
ABIGAIL MARGARET
AUGUST,
SHELLY NADINE
HOEHNE, DAPHNE PAUL, AARON JOE AND RITA POULSON
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Plaintiffs
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and
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HER MAJESTY THE
QUEEN IN RIGHT
OF CANADA AS
REPRESENTED BY
THE ATTORNEY GENERAL
OF CANADA
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Defendant
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REASONS FOR
ORDER AND ORDER
[1]
The
plaintiffs have filed suit in this Court against Her Majesty in Right of Canada
for damages allegedly suffered as a result of children being forced to attend
the Kamloops and Sechelt Indian Residential Schools as day pupils. Her Majesty
has moved to have the action stayed as she intends to claim indemnity from the
religious orders involved in their operation. Section 50.1 of the Federal
Courts Act requires this Court to stay a principal action “where the Crown
desires to institute a counter-claim or third party proceedings in respect of
which the Federal Court lacks jurisdiction.”
THE DECISION
[2]
I
have come to the conclusion that this Court has jurisdiction over the Crown’s
proposed third party proceedings and therefore shall dismiss the motion.
THE ACTION
[3]
The
plaintiffs, personally and on behalf of others, propose a class action
comprising three classes: the “survivor class”, the “descendant class” and the
“Band class”.
[4]
In
broad terms, the action is based on alleged breach of aboriginal rights, breach
of the constitutional rights of Aboriginal peoples, and breach of the fiduciary
duties owed to them by Her Majesty arising from the requirement that survivor
class members attend Indian Residential Schools. This is said to have
intentionally inflicted mental distress and to have caused cultural, linguistic
and social damage and irreparable harm.
[5]
The
basis of the third party claim against the religious orders is that they had
some day-to-day responsibility in the operation of the Indian Residential
Schools, including the selection, hiring, supervision, discipline and dismissal
of staff, religious and moral teaching, guidance and discipline. Her Majesty
seeks contribution or indemnity from them and specifically invokes the Negligence
Act of British Columbia with respect to their vicarious liability for the
acts and omissions of their retainees.
[6]
Under
the Federal Courts Rules, a proposed class action is immediately put
under case management. I was appointed case manager, along with Prothonotary
Lafrenière. At the first case management conference, the Attorney General, on
behalf of Her Majesty, who has yet to file a Statement of Defence, informed the
Court of his intention to seek indemnity against the religious orders involved
in the administration of the two schools, but in his opinion he could not do so
in this Court on the grounds that it lacks jurisdiction. Hence, the invocation
of s. 50.1 of the Federal Courts Act. The Federal Court and the
provincial superior courts now have concurrent jurisdiction over actions
against Her Majesty. The choice of forum normally rests with the plaintiff.
However, the effect of s. 50.1 is, for all intents and purposes, to deprive the
plaintiffs of their choice and to require them to pursue Her Majesty in the
forum she selects, which in this case would be the Supreme Court of British
Columbia.
[7]
A
timetable was worked out leading to a hearing in Vancouver. The proposed third
parties were put on notice. With respect to the Kamloops IRS, they are:
a.
the
Order of the Oblates of Mary Immaculate in the Province of British Columbia;
b.
the
Archbishop of the Roman Catholic Archdiocese of Vancouver;
c.
the
Bishop of the Roman Catholic Diocese of Kamloops; and
d.
the
Sisters of Saint Ann.
With respect to the Schlelt IRS,
they are:
a.
the
said Oblates;
b.
the
said Archbishop; and
c.
the
Sisters of the Instruction of the Child Jesus.
They all filed written submissions
and fully participated in the proceedings.
[8]
The
plaintiffs responded to the stay motion by submitting that this Court indeed
has jurisdiction over the proposed third parties. Therefore, no stay should be
granted. Furthermore, and in any event, they intend to amend the statement of
claim to limit their recovery from the Crown to the extent that it is severally
liable, that is to say to the extent it is found to be liable and not entitled
to indemnity from the proposed third parties. A draft was submitted which they
are prepared to issue without change.
[9]
The
religious orders, for their part, took no position on this Court’s
jurisdiction. They say the third party proceedings are doomed to failure in virtue
of the proposed amendments to the statement of claim. Furthermore, the Crown is
precluded from suing them in light of the Indian Residential Schools
Settlement Agreement which was approved by various provincial courts and which
came into effect in 2007. That settlement did not extend to day pupils, but
they say the hold harmless provisions are all encompassing. The Bishop of
Kamloops adds that neither he nor his predecessors were ever involved in the
Kamloops Indian Residential School. They all conclude that the motion to stay
should be dismissed and that Her Majesty be denied the right to institute
proceedings against them in any court.
JURISDICTION OF
THE FEDERAL COURT WITH RESPECT TO THE CROWN
[10]
The
first matter to decide is whether this Court has jurisdiction over the Crown’s
indemnity claim against the religious orders. If it does, theoretically the
Crown could still pursue them in the provincial courts but would not be
entitled to a stay under s. 50.1.
[11]
My
conclusion that this Court has jurisdiction over an action by the Crown against
the religious orders for contribution or indemnity derives from this Court’s
overall jurisdiction, including its jurisdiction over the Crown as a litigant.
Although the administration of justice, including the establishment of courts,
is a matter for the provinces in accordance with subsection 92(14) of the British
North America Act (now known as Constitution Act, 1867), section 101
goes on to provide that Parliament may establish a general court of appeal,
which it has in the form of the Supreme Court of Canada, and “additional Courts
for the better Administration of the Laws of Canada”. The Federal Court of
Appeal, the Federal Court, the Court Martial Appeal Court and the Tax Court of
Canada are the four such courts currently in place.
[12]
Until
the 1970s, it had been widely assumed that Parliament could assign jurisdiction
to the Federal Court, or to its predecessor the Exchequer Court, with respect
to any matter over which it had legislative authority. It was not necessary
that there be actual federal law to administer. The general law of a province
would suffice.
[13]
As
regards the Crown as a litigant, since the preamble of the BNA Act provides for
union “with a Constitution similar in Principle to that of the United Kingdom”,
and since in that country Her Majesty could select the forum in which she sued,
and in which she consented to be sued, Parliament could confer jurisdiction
upon the Federal Court over any action in which the Crown was a plaintiff, or a
defendant, irrespective of the law to be administered.
[14]
Thus
in Quebec
North Shore Paper Company v Canadian Pacific Limited, [1977]
2 SCR 1054, a contractual dispute arose with respect to a terminal to be used
to facilitate the movement of newsprint from Baie Comeau to the United States.
Section 91(2) of the BNA Act gives authority to Parliament to make laws with
respect to “the regulation of trade and commerce.” Section 23 of the Federal
Court Act, as it then was, gave the Federal Court concurrent jurisdiction
in all cases in which a claim for relief was made or a remedy was sought in
relation to “works and undertakings connecting a province with any other
province or extending beyond the limits of a province.”
[15]
Chief
Justice Laskin, speaking for the Court, held that although Parliament had
jurisdiction to legislate with respect to extra-provincial works and
undertakings in accordance with s. 91 of the BNA Act, at page 1058, he
disagreed with:
The contention on the part of the respondents, which
was in effect upheld in the Federal Courts, … that judicial jurisdiction under
s. 101 is co-extensive with legislative jurisdiction under s. 91 and,
therefore, s. 23 must be construed as giving the Federal Court jurisdiction in
respect of the matters specified in the latter part of the section, even in the
absence of existing legislation, if Parliament has authority to legislate in
relation to them.
[16]
He
held that provincial law, in that case Quebec law, which the parties had
selected to govern their relationship, was not referentially adopted and thus
was not federal law. He said at pages 1065-66:
It is also well to note that s. 101 does not speak
of the establishment of Courts in respect of matters within federal
legislative competence but of Courts "for the better administration of the
laws of Canada". The word "administration" is as telling as the
plural words "laws", and they carry, in my opinion, the requirement
that there be applicable and existing federal law, whether under statute or
regulation or common law, as in the case of the Crown, upon which the jurisdiction
of the Federal Court can be exercised.
[17]
As
there was no such law, the Federal Court was held to be without jurisdiction.
[18]
To
expand upon his comment with respect to the Crown, Chief Justice Laskin added
at page 1063 that:
It
should be recalled that the law respecting the Crown came into Canada as part
of the public or constitutional law of Great Britain, and there can be no
pretence that that law is provincial law. In so far as there is a common law
associated with the Crown's position as a litigant it is federal law in
relation to the Crown in right of Canada, just as it is provincial law in
relation to the Crown in right of a Province, and is subject to modification in
each case by the competent Parliament or Legislature. Crown law does not enter
into the present case.
[19]
However,
the situation was held to be quite different in situations in which the Crown
is a plaintiff. While
Her Majesty has the right to select the forum in which she consents to be sued,
her situation in our federal state is constrained by the BNA Act such that she
cannot take action in the Federal Court unless there is an existing body of federal
law essential to the disposition of the case.
[20]
In
McNamara Construction
(Western) Ltd. v The Queen,
[1977] 2 S.C.R. 654, the Crown had entered into a contract with
McNamara for the construction of an institution for young offenders in Alberta.
Speaking for the Court, Chief Justice Laskin reiterated the holding in Quebec
North Shore, that the judicial jurisdiction contemplated by s. 101 was not
co-extensive with federal legislative jurisdiction. Therefore, as he stated at
pages 658-9:
It follows that the mere fact that Parliament has
exclusive legislative authority in relation to "the public debt and
property" under s. 91(1A) of the British North America Act and in relation
to "the establishment, maintenance and management of penitentiaries"
under s. 91(28), and that the subject matter of the construction contract may
fall within either or both of these grants of power, is not enough to support a
grant of jurisdiction to the Federal Court to entertain the claim for damages
made in these cases.
[21]
The
situation in McNamara was further complicated by the fact that there
were other parties involved who intended to claim-over against the Crown. The
parties were left in the unfortunate situation that since the Crown was suing
on the general law of contract, which was provincial, it could not sue in the
Federal Court, but on the other hand any claim against it for contribution or
indemnity had to be pursued in the Federal Court, which at that time was the
only court in which Her Majesty consented to be sued.
[22]
The
effect of Quebec North Shore and McNamara was aptly summarized by
Chief Justice Jackett of the Federal Court of Appeal in Associated Metals
& Minerals Corp v The Ship “Evie W”, [1978] 2 FC 710, [1977] FCJ No 264
(QL), where he said that in both cases the plaintiff was invoking the general
law of contract applicable to all persons, i.e. provincial law, the
general law of property and civil rights which, as such, could not be altered
by Parliament. Therefore, the plaintiffs were unable to base their claims on
existing federal law. Although arguably Parliament could have enacted a special
law in relation to a federal subject matter, which would have prevailed over
the provincial law and made it inoperative, it had not done so. That decision
was affirmed by the Supreme Court, [1980] 2 S.C.R. 322, without need to discuss
jurisdiction because of its recent decision in Tropwood AG v Sivaco Wire
& Nail Co, [1979] 2 S.C.R. 157. However, the Evie W was later favourably
referred to in ITO-International Terminal Operators v Miida Electronics Inc,
[1986] 1 S.C.R. 752, [1986] SCJ No 38 (QL) (the Buenos Aires Maru).
[23]
In
the Buenos Aires Maru, Mr. Justice McIntyre, after referring to both Quebec
North Shore and McNamara, summarized the case law setting out the
essential requirements to support a finding of Federal Court
jurisdiction as follows at page 766:
1. There must be a statutory grant of jurisdiction
by the federal Parliament.
2. There must be an existing
body of federal law which is essential to the disposition of the case and which
nourishes the statutory grant of jurisdiction.
3.
The
law on which the case is based must be "a law of Canada" as the
phrase is used in s. 101 of the Constitution Act, 1867.
[24]
Unlike
in Quebec North Shore, it was held that the Federal Court had
jurisdiction. The difference is that while there was no federal law pertaining
to interprovincial works and undertakings as such, the federal legislative
class of “navigation and shipping” includes “Canadian maritime law” which, in
turn, is co-extensive with Parliament’s legislative jurisdiction.
[25]
The
Buenos Aires Maru is also important because it held that Canadian
maritime law includes the common law principles of contract, tort and bailment,
and set the stage for the Supreme Court incrementally changing the common law
in such areas as stipulations for the benefit of a third party, claims in tort
for pure economic loss and, more to the point, contributory negligence.
[26]
This
Court has jurisdiction over the action against the Crown. The statutory grant
is found in s. 17(1) of the Federal Courts Act which now gives this
Court “concurrent original jurisdiction in all cases in which relief is claimed
against the Crown.” Two sources of federal law, within the meaning of s. 101 of
the Constitution Act, 1867, are essential to the disposition of the
case, namely the Indian Act and the sui generis relationship
between the Crown and Aboriginal peoples, which puts into play the Crown’s
honour. The constitutional basis for the Indian Act is s. 91(24) of the
BNA Act which provides that Parliament has exclusive legislative authority with
respect to “Indians and Lands reserved for the Indians.”
[27]
Sections
114 and following of the Indian Act, and its predecessors, have dealt
with Indian Residential Schools for more than a century. In addition, such
obligations as may fall upon the Crown with respect to Aboriginal peoples form
part of federal law. To repeat what Chief Justice Laskin said in Quebec
North Shore, at page 1063: “In
so far as there is a common law associated with the Crown's position as a
litigant it is federal law in relation to the Crown in right of Canada…”
[28]
Quite
apart from s. 35.(1) of the Constitution Act, 1982, the Canadian
Charter of Rights and Freedoms, by which: “The existing aboriginal and
treaty rights of the aboriginal peoples of Canada are hereby recognized and
affirmed”, matters involving the honour of the federal Crown in relation to
Aboriginal peoples form part of federal law. In R v Badger, [1996] 1 SCR
771 at paragraph 41, [1996] SCJ No 39 (QL), the Supreme Court stated that “the honour of the
Crown is always at stake in its dealing with Indian people.” This honour
principle derives from the Crown’s fiduciary obligation towards Aboriginal
peoples (R v Van der Peet, [1996] 2 S.C.R. 507, [1996] SCJ No 77 (QL); see
also Mitchell v Canada (Minister of National Revenue-MNR), 2001 SCC 33,
[2001] 1 S.C.R. 911, [2001] SCJ No 33 at para 9).
JURISDICTION
OVER THE PROPOSED THIRD PARTIES
[29]
Although
the Indian Act confers jurisdiction over parts thereof to the Federal
Court, it cannot be said that there has been a comprehensive granting of
jurisdiction which would cover the present case. The statutory grant of jurisdiction
in cases in which the Crown is a plaintiff is found in s. 17(5)(a)
of the Federal Courts Act which provides that: “The Federal Court has
concurrent original jurisdiction (a) in proceedings of a civil nature in
which the Crown or the Attorney General claims relief…”. Although the numbering
is different, this is the same grant of jurisdiction which was in place in McNamara.
[30]
Therefore,
the issue is whether there is existing federal law, be it statute, regulation
or common law, which nourishes this Court’s jurisdiction and is essential to
the disposition of the case.
[31]
On
the negative side, the Crown submits that in its pith and substance its claim
for contribution or indemnity is based upon the Negligence Act of
British Columbia. It has been well established in cases such as the Buenos
Aires Maru,
and even earlier in Kellogg Company v Kellogg, [1941] S.C.R. 242, that s.
101 courts can only apply such provincial law as may be incidentally relevant.
Issues of comparative fault in this case go to the heart of the proposed third
party proceedings. They are not incidental.
[32]
However,
one pleads the facts, not the law. The Crown cannot oust the Federal Court’s
jurisdiction by invoking provincial law. Even a contractual choice of law
clause would not oust this Court’s jurisdiction. See the Tropwood,
above.
[33]
Absent
a statute, the question is whether there is a federal common law dealing with
contributory negligence. In my opinion, there is. In Bow Valley
Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd, [1997] 3 S.C.R. 1210,
[1997] SCJ No 111 (QL), the Court was faced with the common law rule that
contributory negligence on the part of a plaintiff deprived it of any recovery.
The Court held that maritime law applied, which is uniform throughout the
country, rather than provincial law, in that case the Newfoundland Contributory
Negligence Act. The Court held that the common law principles embodied in
Canadian maritime law, i.e. the Buenos Aires Maru, above, were
applicable even in the absence of federal legislation. The Court judicially
reformed the Canadian maritime law pertaining to contributory negligence by
allowing for comparative fault.
[34]
Given
the inter-relationship between Canadian maritime law and Canadian federal
common law, the latter has thus likewise been reformed by allowing for
comparative fault. Indeed, Canadian maritime law and the common law with
respect to contract, tort and bailment, have developed in tandem. In addition
to the Buenos Aires Maru, and Bow Valley Husky, one need only
consider Q.N.S.
Paper Co v Chartwell Shipping Ltd., [1989] 2 S.C.R. 683, [1989] SCJ No 96
(QL), Canadian National Railway Co. v Norsk Pacific Steamship Co.,
[1992] 1 S.C.R. 1021, [1992] SCJ No 40 (QL), London Drug Ltd v Kuehne &
Nagel International Ltd, [1992] 3 S.C.R. 299, [1992] SCJ No 84 (QL) and Fraser
River Pile & Dredge Ltd. v Can-Dive Services Ltd. [1999] 3 S.C.R. 108,
[1999] SCJ No 48 (QL). Indeed, in Fraser River the Court was not
concerned with the fact that the insurance policy in question was a hull and
machinery policy, and thus governed by federal law in accordance with
s. 22(2)(r) of the Federal Courts Act being a “claim arising
out of or in connection with a contract of marine insurance;” a dispute over
which the Federal Court has concurrent jurisdiction (Zavarovalna Skupnost Triglav (Insurance Community Triglav
Ltd) v Terrasses Jewellers Inc, [1983] 1
SCR 283).
[35]
Apart
from the federal common law of contributory negligence, which is a law of
Canada within the meaning of s. 101 of the Constitution Act, 1867 and
which is essential to and at the pith and substance of the third party
proceedings, the religious orders had been retained on behalf of Her Majesty,
pursuant to section 114 of the Indian Act, to educate the day pupils.
This is not a case such as McNamara which related to the construction of
a building, but rather is a case relating to the administration of the Indian
Act.
[36]
In
McNamara, above, the dispute related to the construction of a
penitentiary, not to the administration of a penitentiary. Thus, the general
law of contract, i.e. provincial law, applied. This case however is akin
to Rhine v The Queen and Prytula v The
Queen,
[1980] 2 S.C.R. 442. Those two cases, which were joined for hearing, dealt with
the Federal Court’s jurisdiction over claims by the Crown for monies owed under
the Prairie Grain Advance Payments Act and under the Canada Student
Loans Act. The Federal Court Act, then as now, provided that the
Court had concurrent jurisdiction “in proceedings of a civil nature in which
the Crown or the Attorney General of Canada claims relief”. Chief Justice
Laskin distinguished McNamara, above, and held that the Federal Court
had jurisdiction. In Rhine, he said at page 447:
What we have here is a detailed statutory framework
under which advances for prospective grain deliveries are authorized as part of
an overall scheme for the marketing of grain produced in Canada. An examination
of the Prairie Grain Advance Payments Act itself lends emphasis to its
place in the overall scheme. True, there is an undertaking or a contractual
consequence of the application of the Act but that does not mean that the Act
is left behind once the undertaking or contract is made. At every turn, the
Act has its impact on the undertaking so as to make it proper to say that there
is here existing and valid federal law to govern the transaction which became
the subject of litigation in the Federal Court. It should hardly be necessary
to add that “contract” or other legal institutions, such as “tort” cannot be
invariably attributed to sole provincial legislative regulation or be deemed to
be, as common law, solely matters of provincial law.
[37]
The
same principles held true with respect to Prytula, above, as well as in
this case.
[38]
Consequently,
the tri-partite test summarized in the Buenos Aires Maru is satisfied.
The Indian Act is an existing body of federal law, which are laws of
Canada, essential to the disposition of the case, and subsection 17(5)(a)
of the Federal Courts Act is a statutory grant of jurisdiction.
[39]
Furthermore,
the third party claim is based on common law tort arising from federal, not
provincial, law, the dividing line between which is difficult to draw. I am of
the view that this case aligns with Kigowa v Canada, [1990] 1 FC 804,
[1990] FCJ No 60 (QL) and Peter G. White Management Ltd v Canada (Minister
of Canadian Heritage), 2006 FCA 190, [2007] 2 FCR 475, [2006] FCJ No 808
(QL), rather than with Stoney Band v Canada (Minister of Indian Affairs and
Northern Development), 2005 FCA 220, [2006] 1 FCR 570, [2005] FCJ No 1181
(QL). The religious orders were acting on behalf of Her Majesty and so were
required to act honourably. Section 35 of the Charter applied. Non-government
organizations may exercise delegated government powers or be responsible for
the implementation of government policy. Such entities in carrying out those
powers are part of “government” (Eldridge v British Columbia (Attorney
General), [1997] 3 S.C.R. 624, [1997] SCJ No 86 (QL) and Onuschak v
Canadian Society of Immigration, 2009 FC 1135, 357 FTR 22, [2009] FCJ No
1596 (QL)).
MAY THE
STATEMENT OF CLAIM BE AMENDED?
[40]
Had
it not been for the fact that this matter was under case management, the
plaintiffs would have unilaterally amended their Statement of Claim. Rule 200
of the Federal Courts Rules permits a party, without leave, to amend its
pleadings at any time before another party has pleaded thereto. The Crown has
not yet pleaded to the Statement of Claim. To the extent that leave may be
required, which I doubt, leave shall be given.
SHOULD
HER MAJESTY BE PROHIBITED FROM ISSUING THIRD PARTY PROCEEDINGS?
[41]
The
position of the plaintiffs and the proposed third parties is that as a result
of the proposed amendments, Her Majesty has no cause of action. In effect, they
wish to enjoin her from filing a third party statement of claim.
[42]
In
British Columbia Ferry Corp v T&N plc, [1996] 4 WWR 161, [1995] BCJ
No 2116 (QL), the trial judge struck a third party claim as the plaintiff was
limiting recovery to the sole conduct of the defendants which would therefore
preclude claims by them against others. The Court of Appeal, however, modified
that decision to permit the third party proceedings to continue even if the
defendants only sought a declaration of liability.
[43]
In
Taylor v Canada (Minister of Health), 2009 ONCA 487, [2009] OJ No 2490
(QL), after proceedings had been underway for some time, the plaintiff, in a
class action, amended her statement of claim to those damages allegedly caused
by Health Canada attributable to its proportionate degree of fault. She sued no
other parties. The Attorney General of Canada brought a third party claim
against others on the grounds that they might be liable for some or all of the
plaintiff’s injury. The third party claim was dismissed in first instance and
in appeal on the grounds that the exposure of the Crown was limited to damages
for which it would have no right to contribution from any person who might have
caused or contributed to the damages suffered by the plaintiff. It was held
that the Court was not prevented from apportioning fault without insisting that
others be made parties. This would mean a shorter trial and reduced costs.
[44]
As
mentioned in Taylor, there is the issue of production of documents and
discovery of non-parties. The Federal Courts Rules allow for such
discovery and the proposed parties have undertaken that they will not oppose
any reasonable request.
[45]
Mindful
as I am of Canada (Attorney General) v TeleZone Inc, 2010 SCC 62, [2010]
3 SCR 585, [2010] SCJ No 62 (QL), that unnecessary costs and complexities
should be avoided, I consider it would be premature to strike a third party
statement of claim before it is even filed. Were Her Majesty not concerned with
this Court’s jurisdiction, in accordance with rule 193 of the Federal Courts
Rules, she was entitled to commence third party proceedings as of right.
Unless incompatible, the general rules of the Federal Courts Rules are
applicable to class proceedings (rule 334.1(1)).
[46]
It
remains to be seen whether Her Majesty decides to file third party proceedings
in light of the Amended Statement of Claim. Should she so file, the religious
orders may move to strike pursuant to rule 220 of the Federal Courts Rules
on the basis that the third party proceedings disclose no reasonable cause of
action. It should be noted, however, that no evidence is to be heard on such a
motion. Consequently, the Court would not take into account the affidavits
already on record with respect to the role of the Bishop of Kamloops and as to
the scope of the Indian Residential Schools Settlement Agreement.
[47]
A
case strongly relied upon by the religious orders, Dobbie v Canada (Attorney
General), 2006 FC 552, 291 FTR 271, [2006] FCJ No 694 (QL), a decision of
Mr. Justice Kelen, must be taken in context. In determining whether the Crown
was “desirous” of instituting third party proceedings, he held that one must
consider whether those proceedings were frivolous, vexatious, or without any
merit. He found both that the Crown had an arguable case and that the Federal
Court did not have jurisdiction over the proposed third party claim. There, he
granted the stay. Presumably, had he been of the view that there had been no
basis for a third party claim, he would not have granted the stay. In the case
at bar, the situation is quite different. As the Court has jurisdiction over
the proposed third party claim, the Crown has the right to institute third
party proceedings. Thereafter, on a proper record, the Court may be called upon
to strike them.
[48]
All
that is at issue at the present time is whether the principal action should be
stayed. It should not. The Court cannot and should not prevent the Crown, at
this stage, from claiming against the religious orders in this Court or in the
Supreme Court of British Columbia.
ORDER
FOR
REASONS GIVEN;
THIS
COURT ORDERS that:
1.
The
motion on behalf of the defendant for a stay of the principal action is
dismissed.
2.
The
plaintiffs are at leave to serve and file the Amended Statement of Claim, as it
appears in their motion material, within fifteen (15) days hereof.
3.
Thereafter,
the defendants may file third party proceedings in this Court, within the
normal delays.
4.
Costs
in the cause.
“Sean Harrington”
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