J. 2003 SKQB 46 Q.B.G. A.D. 2000 No. 336 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: ALBERT KAISWATUM RESPONDENT (PLAINTIFF) and ATTORNEY GENERAL OF CANADA APPLICANT (DEFENDANT) and LES OBLATS DE MARIE IMMACULEE DU MANITOBA THIRD PARTY E. F. Anthony Merchant, Q.C. for the respondent (plaintiff) Norma J. Gunningham-Kapphahn for the applicant (defendant) JUDGMENT BALL J. January 29, 2003 [1] The plaintiff claims that he was physically assaulted and that he lost his traditional aboriginal language and culture approximately 50 years ago, when he was student at Residential School. [2] The Attorney General of Canada (the “Attorney General”) applies to strike out the plaintiff’s claims on the grounds that they are barred by certain statutes, or alternatively that the Court has no jurisdiction over any cause of action relating to an alleged intentional tort committed by a Crown servant or employee prior to May 14, 1953. [3] The plaintiff claims that he was physically assaulted and that he suffered the loss of his traditional language and culture from 1944 until 1952, when he was attending the Qu’Appelle Residential School near Lebret, Saskatchewan (the “Residential School”). The Attorney General acknowledges that the plaintiff attended the Residential School from February of 1946 until June of 1949. [4] The plaintiff claims that the physical assaults were perpetrated by employees and staff at the Residential School. The alleged assaults included being beaten with leather strap and having his ears pulled “by Sister Elle”. The Attorney General acknowledges that Sister Ann Elle was employed at the Residential School from 1943 to 1946. The parties agree that Sister Ann Elle died on May 4, 1993. [5] Although the statement of claim makes no mention of Sister Greyeyes, the parties agree that she was one of the employees alleged to have abused the plaintiff at the Residential School. The Attorney General acknowledges that Helen Greyeyes was employed at the Residential School from 1927 to 1969. The parties agree that Helen Greyeyes died on May 19, 1988. [6] The plaintiff claims that his damages were caused by the negligence, breach of trust and breach of fiduciary duty of the Attorney General. The relevant paragraph of the statement of claim reads as follows: 19. The physical assaults and resulting injuries and lifestyle changes to the Plaintiff were caused by the negligence, breach of trust, and breach of fiduciary duty to the Defendant, the servants, agents, and employees of the Defendant, the particulars of which include but are not limited to the following: (a) the hiring of unqualified servants, agents, and teachers to administer and operate the Residential School; (b) failure to have policy or guidelines in place with respect to hiring adequate persons to serve as administrators of the Residential School; (c) failure to protect the Plaintiff from physical abuse by the agents, servants, and employees of the Defendant when they should have been alerted by the conduct and foreseeable risks within the Residential School; (d) failure in general to take proper and reasonable steps to prevent injury to the Plaintiff’s physical health and mental well-being and moral safety while the Plaintiff was student at the Residential School; and (e) having occupied position analogous to that of parent, failing to establish and maintain systems to protect the Plaintiff as good parent should. [7] On October 3, 2002, Wimmer J. granted leave to the Attorney General to amend its statement of defence and third party claim, pursuant to which the Attorney General pleads and relies upon the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, as am., s. 31(d), (h) and (j) of The Limitation of Actions Act, R.S.S. 1978, c. L-15, as am. (“LAA”), The Public Officers’ Protection Act, R.S.S. 1978, c. P-40, as am. or its predecessor legislation (“POPA”), s. 59 of The Trustee Act, R.S.S. 1978, c. T-23, as am., or its predecessor legislation, s. 10 of The Survival of Actions Act, S.S. 1990-91, c. S-66.1, as am., s. 3(1)(a) of the Crown Liability Act, S.C. 1952-53, c. 30 and s. 19 of the Exchequer Court Act, R.S.C. 1927, c. 34, as am. S.C. 1938, c. 28. [8] The Attorney General served notice of third party claim against Les Oblats de Marie Immaculee du Manitoba (the “Oblats”) alleging that the Oblats controlled and operated the Residential School at all material times. The third party claim is not relevant to this application by the Attorney General to strike out the plaintiff’s statement of claim. [9] The Attorney General seeks an order striking out the plaintiff’s claims on five alternative grounds which will be dealt with in the following sequence: (a) The plaintiff’s claims against the Attorney General [including the claim framed in trespass] are statute-barred pursuant to s. of The Limitation of Actions Act, R.S.S. 1973, c. 76, 1965, c. 84, 1978, c. L-15; (b) All of the plaintiff’s claims against the Attorney General, except the claim framed in trespass, are statute barred because they are not exempted by subsection 3(3.1) of The Limitation of Actions Act; (c) The plaintiff’s claims against the Attorney General are statute-barred pursuant to s, of The Public Officer’s Protection Act, R.S.S. 1953, c. 17, 1965, c. 21, 1978, c. P-40; (d) The plaintiff’s claim against the Attorney General based on vicarious liability for assault must be struck because the Court has no jurisdiction to adjudicate upon any cause of action relating to any alleged intentional tort committed by any Crown servant or employee that is said to have occurred prior to May 14, 1953; (e) All of the plaintiff’s claims against the Attorney General arising from the conduct of two deceased employees of the Residential School, namely, Sister Elle and Sister Greyeyes are barred by The Trustee Act, R.S.S. 1978, c. T-23 and The Survival of Actions Act, S.S. 1990-91, c. S-66.1, as amended. [10] For the reasons which follow, reject the Attorney General’s submissions on grounds (a), (b), (c) and (e) and accept its submission on ground (d). (a) Action Based on Trespass [11] The provisions of the LAA relevant to grounds (a) and (b) above are: 3(1) The following actions shall be commenced within and not after the times respectively hereinafter mentioned: ... (d) actions for: (i) subject to subsection (3.1), trespass to the person, assault, battery, wounding or other injury to the person, whether arising from an unlawful act or from negligence ... within two years after the cause of action arose. ... (h) actions grounded on accident, mistake or other equitable ground of relief not hereinbefore specifically dealt with, within six years from the discovery of the cause of action. 3(2) Nothing in this section extends to an action where the time for bringing the action is by statute specially limited. 3(3.1) person is not governed by limitation period and may at any time bring an action for trespass to the person, assault or battery where: (a) the cause of action is based on misconduct of sexual nature; or (b) at the time of the injury: (i) one of the parties who caused the injury was living with the person in an intimate and personal relationship; or (ii) the person was in relationship of financial, emotional, physical or other dependency with one of the parties who caused the injury. (3.2) Subsection (3.1) applies whether or not the person’s right to bring the action was at any time governed by limitation period pursuant to this Act or any other Act. [12] The plaintiff claims that he was physically assaulted while he was in relationship of dependency with the perpetrators of the assaults. That claim is exempted from limitation period by s. 3(3.1)(b)(ii) of the LAA. The Attorney General argues however, that s. 3(3.1)(b)(ii) only exempts claims against person who actually perpetrates an alleged trespass, assault or battery, and that it does not exempt claims against persons who may be vicariously liable for that conduct. In companion judgment to this one rejected the Attorney General’s submission on that point (see [P.G.] v. Attorney General of Canada and William Brittain and Douglas Ross, 2003 SKQB 41 (CanLII) at paras. to 11). Even though the plaintiff’s claim in trespass is based on acts that are alleged to have occurred over 50 years ago, it clearly falls within the class of claims contemplated by s. 3(3.1)(b)(ii) of the LAA. As such it is exempted from any limitation period—not only insofar as the alleged perpetrators are concerned, but also as against others liable for their conduct. (b) Actions Based on Grounds other than Trespass: Statutory Limitation Periods and the Discoverability Principle [13] The Attorney General submits that all of the plaintiff’s claims not exempted from limitation period by s. 3(3.1) of the LAA, including those in negligence, breach of trust and breach of fiduciary duty are barred by ss. 3(1)(d)(i) and 3(1)(h) of the LAA. [14] A claim of negligence is subject to the two year time limitation period in s. 3(1)(d)(i) of the LAA. Even though the claim is based on events said to have occurred over 50 years ago, the two year limitation period must be calculated having regard to the principles of discoverability. It may well be impossible from practical standpoint for the plaintiff to establish, by balance of probabilities, that he did not discover, or should not with reasonable diligence have discovered, the wrongful nature of the Federal Crown’s acts and the nexus between those acts and his injuries. Nevertheless, unless there is agreement on the relevant facts (as required by Rule 188 of The Queen’s Bench Rules) or the plaintiff’s own pleadings can be relied upon to establish that the claim is barred (a proposition that was not advanced by the Attorney General), facts relevant to discoverability are best determined at trial. (See [P.G.] v. Attorney General of Canada et al., supra, at paras. 12 to 31). [15] The plaintiff’s claims of breach of trust or breach of fiduciary duty are equitable claims subject to the six year time limitation period prescribed by s. 3(1)(h) of the LAA. That limitation period explicitly begins to run “... from the discovery of the cause of action”. Again, there is no agreement on the facts and the Attorney General does not argue that the claims should be struck on the basis of the plaintiff’s own pleadings. It should therefore be left to the trial judge to determine whether the plaintiff can satisfy the requirements of discoverability. (See [P.G.] v. Attorney General of Canada et al., supra, at paras. (c) The Public Officers’ Protection Act (“POPA”) [16] The Attorney General submits that even if the LAA does not bar some or all of the plaintiff’s claims, all of them are barred by s. 2(1) of the POPA which provides: 2.—(1) No action, prosecution or other proceedings shall lie or be instituted against any person for an act done in pursuance or execution or intended execution of statute, or of public duty or authority, or in respect of an alleged neglect or default in the execution of statute, public duty or authority, unless it is commenced: (a) within twelve months next after the act, neglect or default complained of or, in case of continuance of injury or damage, within twelve months after it ceases; or (b) within such further time as the court or judge may allow. [17] Counsel for the Attorney General argues that the twelve month limitation period in s. 2(1)(a) of the POPA should be applied in priority to the more general provisions of the LAA. The same argument was rejected in [R.J.G.] v. Attorney General of Canada and Missionary Oblates-Grandin Province, 2002 SKQB 405 (CanLII), [2002] S.J. No. 602 (QL) (Q.B.), leave to appeal granted on December 3, 2002 in 2002 SKCA 132 (CanLII), on the basis that the POPA does not apply to persons carrying out duties and responsibilities on behalf of the Government of Canada. Although the court did not explain why it came to that conclusion in [R.J.G.], supra, it could have done so for two reasons. [18] First, the decision in [R.J.G.] is consistent with various decisions dealing with Ontario legislation very similar to the POPA (namely s. of the Ontario Public Authorities Protection Act, R.S.O. 1990, c. P.38 which contains six month limitation period). In Berardinelli v. Ontario Housing Corp., 1978 CanLII 42 (SCC), [1979] S.C.R. 275, Estey J. stated at para. 21 that the Ontario legislation should be read restrictively, and that it does not apply to activities of an internal or operational nature having predominately private aspect. In Des Champs v. Conseil des Écoles Séparées Catholiques de Langue Française de Prescott-Russell, 1999 CanLII 660 (SCC), [1999] S.C.R. 281 and the companion case of Abouchar v. Ottawa-Carleton French-Language School Board-Public Sector, 1999 CanLII 661 (SCC), [1999] S.C.R. 343, the Supreme Court of Canada confirmed that approach. In Des Champs, the majority of the Supreme Court held that the legislation could not be invoked to protect actions of public authority “of an internal or operational character” or that are “distinct, separate, subordinate and incidental” to the execution of the public mandate (per Binnie J. at paras. 56 and 58). In Abouchar, Binnie J. held at paras. and that the time limitation period did not apply because the plaintiff’s claim related to duties of the respondent school board that were “... incidental or subordinate to the direct performance by the respondent Board of its public mandate and are predominately of private character”. In Jadwani v. Canada (Attorney General) (2000), 2000 CanLII 22333 (ON SC), 47 O.R. (3d) 276 at para. 26 (S.C.J.), Lalonde J. came to the same conclusion. [19] Applying the reasoning in all of the above decisions to the circumstances in both [R.J.G.] and this case, it can appropriately be said that the claims relate to internal management of the Residential Schools and acts that were “distinct and separate” from any public mandate. As such, the 12 month time limitation period under s. of the POPA does not apply. [20] second reason supporting the court’s conclusion in [R.J.G.] is that the limitation period in the POPA is set aside by s. 3(3.2) of the LAA for actions which fall within the scope of s. 3(3.1) of the LAA. This is evident from the clear language of s. 3(3.2) of the LAA. For ease of reference, s. 3(3.2) reads: 3(3.2) Subsection (3.1) applies whether or not the person’s right to bring the action was at any time governed by limitation period pursuant to this Act or any other Act. [Emphasis added] [21] Even if the time limitation period in the POPA applies to claims other than those described in s. 3(3.1) of the LAA (i.e., even if the [R.J.G.] decision was wrong), time begins to run under s. 2(1)(a) of the POPA only when the alleged injury or damage ceases. The plaintiff alleges continuing injury and damage. There is no agreement as to when that alleged injury or damage ceased. That is factual matter to be dealt with at trial. [22] For the above reasons adopt the [R.J.G.] decision and in any event conclude that the POPA does not bar the plaintiff’s claim from proceeding to trial. (d) Intentional Torts Occurring Before May 14, 1953: Proclamation of the Crown Liability Act [23] The Attorney General submits that this Court has no jurisdiction to hear or adjudicate upon any cause of action relating to an alleged intentional tort occurring before the proclamation of the Crown Liability Act on May 14, 1953. The reasoning is straightforward: Before the enactment of the Crown Liability Act on May 14, 1953, no action could be taken against the Crown for the intentional torts of its officers or servants; After May 14, 1953, claims against the Crown based upon the torts of its officers and servants, both negligent and intentional, were permitted by the Crown Liability Act and its successor legislation; The Crown Liability Act did not operate retrospectively to permit claims against the Crown for intentional torts committed prior to May 14, 1953; Section 3(3.1) of the LAA does not create causes of action, but simply removes statutory time limitation periods barring otherwise existing actions; Therefore, the Crown remains immune from claims for trespass, assault and battery committed by its servants and officers before May 14, 1953. That immunity applies to the claim in this case, which is based on alleged assaults at the Residential School between approximately 1944 and 1952. [24] agree with the Crown’s submission as it relates to the intentional torts of trespass, assault and battery. [25] Before May 14, 1953, the Crown was subject to claims for negligence pursuant to s. 19(c) of the Exchequer Court Act, which provided: 19. The Exchequer Court shall also have exclusive original jurisdiction to hear and determine the following matters:— (c) Every claim against the Crown arising out of any death or injury to the person or to property resulting from the negligence of any officer or servant of the Crown while acting within the scope of his duties or employment. [26] This liability for the negligence of the Crown’s officers or servants was expanded to include intentional torts by s. 3(1) of the Crown Liability Act which provided: 3.(1) The Crown is liable in tort for the damages for which, if it were private person of full age and capacity, it would be liable (a) in respect of tort committed by servant of the Crown, or (b) in respect of breach of duty attaching to the ownership, occupation, possession or control of property. [27] The Crown’s liability for intentional torts was confined to acts occurring after the proclamation of the Crown Liability Act on May 14, 1953 by virtue of s. 24(1), which states: 24.(1) 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. [28] Peter W. Hogg and Patrick J. Monahan in Liability of the Crown, 3d ed. (Toronto: Carswell, 2000) review the history of Crown liability for intentional torts at c. 6.1, pp. 108-110: (a) Crown Immunity The history of proceedings against the Crown was briefly traced in chapter 1. In the nineteenth century, the petition of right, which had become the principal means of suing the Crown, was held not to be remedy in tort. The reasoning in those early tort cases—that “The King can do no wrong”—we can now see to be misconceived, but the cases became firmly established as the law. Since no remedy other than the petition of right was available to sue the Crown in tort, the Crown became immune. (b) Early statutory reform ... Until the 1950s, Quebec was the only Canadian jurisdiction in which the Crown was generally liable in tort. However, the Federal Exchequer Court Act did impose an important measure of liability on the Crown in right of Canada. In 1887, provision was included which conferred jurisdiction on the Exchequer Court over claims against the Crown for the negligence of Crown servants, but only if the negligence occurred “on public work”. This provision, although in terms only conferring jurisdiction on the Exchequer Court, was interpreted as imposing liability on the Crown for the negligence of Crown servants on public work. Inevitably, however, the meaning of the “public work” limitation provoked litigation, and in 1938 the limitation was removed. From then until the broader reform of 1951, the Crown in right of Canada was liable for “the negligence of any officer or servant of the Crown while acting within the scope of his duties or employment”. This imposed an extensive area of liability; but it excluded torts other than negligence, and even in the case of negligence its scope was incomplete. [29] The “broader reform of 1951” to which the authors refer led to the enactment of the Crown Liability Act which was proclaimed on May 14, 1953. That legislation imposed liability on the Crown in respect of all torts committed by its servants. The Act has been renamed the Crown Liability and Proceedings Act [S.C. 1990, c. 8, s. 20] and substantially amended, but s. 3, the provision imposing tortious liability, remains the same. [30] In 1952, even as the Crown Liability Act was being considered by Parliament, the Exchequer Court held that the Crown was immune from tortious claims not expressly permitted by s. 19(c) of the Exchequer Court Act. In Magda v. R., [1953] Ex. C.R. 22, President Thorson stated at pp. 29-30: The only matter that is before the Court is the bare question of law, namely, whether the suppliant has any legal claim against the Crown even if he should be able to prove that the allegations in his petition of right are true and establish that he was unlawfully imprisoned and interned and that the acts of which he complains were wrongful. The answer to this question must, in the present state of the law, be in the negative. Consequently, must hold that even if the allegations in the petition of right are true and even if the suppliant was unlawfully imprisoned and unlawfully interned and even if the acts of which he complains were wrongful he is not entitled to any relief as against the Crown and his claim for damages must be wholly denied. The reason for this is that in the present state of the law no petition of right lies against the Crown in right of Canada for any tort, or “faute”, to use the language of Article 1053 of the Civil Code of Quebec, committed by an officer or servant of the Crown while acting within the scope of his duty or employment except for such tort or segment of “faute” as will give rise to claim expressly permitted by statute, as under section 19(c) of the Exchequer Court Act, R.S.C. 1927, chap. 34, and that the allegations in this petition are not allegations of acts of negligence within the meaning of that section. And further on at p. 30: ... measure of reform that will remove this defect in the law is before the present session of Parliament but it cannot affect the present case. [31] In 1993, s. 24(1) of the Crown Liability Act was interpreted as continuing Crown immunity for intentional torts committed by an officer or servant of the Crown before 1953. (See Mayrhofer v. Canada (T.D.), 1993 CanLII 2919 (FC), [1993] F.C. 157 (F.C.T.D.), per Teitelbaum J. at pp. 170-171. [32] More recently, the Ontario Superior Court of Justice reviewed the history of that court’s jurisdiction over claims against the Federal Crown for matters predating May 14, 1953. In M.C.C. v. Canada (Attorney General), [2001] O.J. No. 4163 (QL), Haines J. stated at paras. 14-16: Conduct Prior to 1953 ¶14 The 1953 Crown Liability Act gave provincial courts jurisdiction to deal with claims under s. 3(1) but it also included 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 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 cause of action that this court has jurisdiction to entertain with respect to anything that occurred before May 14, 1953. 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 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. [33] The law is clear that the plaintiff cannot pursue claim against the Federal Crown for the intentional tort of trespass, assault and battery of its officers and servants occurring prior to May 14, 1953. Although Haines J. in M.C.C. v. Canada (Attorney General), supra, decided that a provincial court has no jurisdiction to entertain any claim against the Federal Crown arising from acts or omissions that predate May 14, 1953, my decision is based on the narrower ground that this Court has no jurisdiction to entertain claims arising from the intentional torts of officers and servants of the Crown occurring before the proclamation of the Crown Liability Act on May 14, 1953. [34] limit my conclusion for two reasons. First and foremost, the Attorney General makes no application to strike the plaintiff’s claim in negligence (or any other claim) on the ground that it must be brought in another court. Second, the plaintiff’s claims based on breach of trust and breach of fiduciary duty are claims for equitable relief. The ability to obtain equitable relief against the Crown by means of an ordinary action against the Attorney General was upheld in Dyson v. Attorney-General, [1911] K.B. 410 (C.A.) in which the English Court of Appeal decided that the Court of Exchequer’s power to give equitable relief could be exercised by all divisions of the High Court. Obtaining declaration against the Crown in an action in which the Attorney General is named as the defendant became known as the Dyson procedure—a procedure that was and is available in Canada in every jurisdiction except New Brunswick and Nova Scotia. (See Hogg and Monahan, Liability of the Crown, c. 1.3(b), p. and c. 2.3(d), pp. 27-28 and authorities cited therein. See also Canex Placer Ltd. v. Attorney General of British Columbia (1975), 1975 CanLII 944 (BC CA), 58 D.L.R. (3d) 241 (B.C.C.A.) and Borowski v. Canada (Minister of Justice), 1980 CanLII 2238 (SK QB), [1980] W.W.R. 283 (Sask. Q.B.) per Hughes J. ). (e) Claims Against Deceased Perpetrators: The Trustee Act and The Survival of Actions Act [35] The Attorney General submits that the plaintiff’s claims against the Federal Crown are barred by virtue of the combined effect of ss. 10 and 24 of the Crown Liability and Proceedings Act and s. 59 of The Trustee Act (as the claims relate to Sister Greyeyes) or s. 10 of The Survival of Actions Act (as the claims relate to Sister Elle). [36] understand the Attorney General’s argument to be that s. 10 of the Crown Liability and Proceedings Act prevents any action from being taken against the Crown in respect of an act or omission of servant of the Crown unless an action could also be brought against that servant or the servant’s personal representative. Next, counsel argues, no action could be brought against Sister Greyeyes or her estate because when she died on May 19, 1988, s. 59 of The Trustee Act was in force and required actions to be commenced within one year of her death. When Sister Elle died on May 4, 1993, s. 59 of The Trustee Act had effectively been replaced by the one year time limitation period now found in s. 10 of The Survival of Actions Act-a limitation which bars any action against Sister Elle or her estate. Finally, the Crown argues, s. 24 of the Crown Liability and Proceedings Act entitles the Federal Crown to take the benefit of any defence that would be available to Sister Greyeyes if the plaintiff’s claim had been made against her. [37] Dealing firstly with the Attorney General’s submission with respect to Sister Greyeyes, s. 10 of the Crown Liability and Proceedings Act and s. 59 of The Trustee Act provide as follows: The Crown Liability and Proceedings Act 10 No proceedings lie against the Crown by virtue of subparagraph 3(a)(i) or (b)(i) in respect of any act or omission of servant of the Crown unless the act or omission would, apart from the provisions of this Act, have given rise to cause of action for liability against that servant or the servant’s personal representative or succession. The Trustee Act 59. If deceased person committed wrong to another in respect of his person or of his real or personal property, except in cases of libel and slander, the person so wronged may maintain an action against the executors or administrators of the person who committed the wrong, but such action shall be brought within one year after the decease. [38] Section 10 of the Crown Liability and Proceedings Act has generally been regarded as applicable to actions against the Crown based upon vicarious, not direct, liability. In order for liability to fall on the Crown, plaintiff must show that Crown servant or servants, acting within the scope of employment, breached duty that was owed to the plaintiff. The plaintiff must additionally establish that the breach caused the plaintiff’s injury of sort that would attract personal liability against private person. (See Air Canada v. Canada (Minister of Transport), 1999 CanLII 7953 (FC), [1999] 165 F.T.R. 60 at para. 38 (F.C.T.D.); Olympia Janitorial Supplies v. Canada (Minister of Public Works), [1(997] F.C. 131 at para. 22 (F.C.T.D.), per Wetston J. (See also P. Lordon, Crown Law (Toronto: Butterworths, 1991) at pp. 327, 335 and 340). Once the plaintiff has satisfied the requirements of s. 10, the Crown’s vicarious liability follows. [39] have already decided that this Court has no jurisdiction to entertain claim against the Federal Crown based on its vicarious liability for assaults said to have occurred before May 14, 1953. It is therefore unnecessary for me to decide whether the same claim, to the extent that it may be based on the intentional tort of the now deceased Sister Greyeyes, is also barred by the combination of legislation relied upon by the Attorney General. Nevertheless, it seems apparent that s. 59 of The Trustee Act does not bar any aspect of the plaintiff’s claim described in s. 3(3.1) of the LAA for the same reason s. 2(1) of the POPA does not do so: the time limitation periods are abrogated by s. 3(3.2) of the LAA (see para. 22 above). Since there is no limitation period barring the cause of action against Sister Greyeyes or her estate, there can be no provincial limitation period available to the Federal Crown under s. 24 of the Crown Liability and Proceedings Act. [40] Whether or not the plaintiff’s claims against the Federal Crown based on negligence, breach of trust and/or breach of fiduciary duty are barred by the combination of legislation relied on by the Attorney General turns on whether those claims are based on vicarious liability or direct liability. The difference between the two is neatly summarized in Hogg and Monahan, Liability of the Crown (3d) ed., as follows at c. 6.2(b), p. 115: ... Direct liability involves the breach of duty owed to the injured plaintiff by the master, whereas vicarious liability involves the breach of duty owed to the plaintiff by the servant. In the case of direct liability, it is immaterial whether servant owed duty to the plaintiff, and in the case of vicarious liability it is immaterial whether the master owed duty to the plaintiff. [41] The plaintiff’s claims of negligence, breach of trust and breach of fiduciary duty are claims of direct liability alleging the breach of a duty owed to the plaintiff by the Federal Crown independently from any duty owed to the plaintiff by Sister Greyeyes. Claims based on the direct liability of the Crown are not affected by time limitation periods applicable to Sister Greyeyes or her estate. [42] Finally, counsel for the Attorney General submits that the plaintiff’s claim against Sister Elle, who died on May 4, 1993, is barred by virtue of s. 10 of The Survival of Actions Act. Section 5 and s. 10(1), (3) and (4) of The Survival of Actions Act, provide: If cause of action for damages suffered by reason of an act or omission would have existed against person had that person not died at or before the time the damage was suffered, the cause of action is deemed to have existed against the person before that person’s death. 10(1) Notwithstanding The Limitation of Actions Act or any other Act limiting the time within which an action may be brought, cause of action that survives pursuant to this Act is not barred until the expiry of the period provided by this section. (3) Proceedings on cause of action that is deemed to continue pursuant to section may be brought: (a) within the time otherwise limited for the bringing of the action, which is to be calculated from the date the damage was suffered; or (b) within one year from the date the damage was suffered; whichever is the longer period. (4) Subject to subsection (5), this Act does not operate to revive any cause of action in or against person that was barred at the date of that person’s death. [43] In my view, the above legislation does not bar the plaintiff’s claims. With respect to the trespass claim within s. 3(3.1) of the LAA, s. 3(3.2) of the LAA abrogates the time limitation period in s. 10(3)(b) of The Survival of Actions Act. The other claims are made directly against the Federal Crown and are not affected by time limitation periods applicable to Sister Elle or her estate. SUMMARY [44] The plaintiff’s claim based on the intentional tort of assault committed by a servant of the Crown before May 14, 1953, is struck. The plaintiff’s claim based on negligence is subject to the two year time limitation period prescribed by s. 3(1)(d) of the LAA and his claims alleging breach of trust and breach of fiduciary duty are subject to the six year time limitation period in s. 3(1)(h) of the LAA. Both time limitation periods are to be calculated having regard to principles of discoverability with relevant factual issues to be dealt with at trial. [45] will receive written submissions from both parties with respect to costs, to be filed within 30 days.
The Attorney General applied to strike out the plaintiff's claims on the grounds they are statute-barred by virtue of the LAA s.3 and that all the claims except for trespass to person are not exempted by s.3(3.1); by POPA s.2; alternatively, the Court has no jurisdiction over any cause of action relating to intentional torts committed by a Crown servant or employee prior to May 14, 1953; all claims arising from the conduct of two deceased Sisters who died in 1988 and 1993 are barred by the TA and SAA. The plaintiff claimed he was physically assaulted by employees and staff and suffered the loss of his traditional language and culture between 1944 and 1952 while attending the Qu'Appelle Residential School. The AG acknowledged the plaintiff attended the school from 1946 until 1949. The AG in a previous application was granted leave to amend its statement of defence and third party claim to plead and rely upon the Crown Liability and Proceedings Act; Limitations of Actions Act ss.31(d),(h) and (j); Public Officers' Protection Act; Trustee Act s.59, or its predecessor legislation Survival of Actions Act s.10; Crown Liability Act s.3(1)(a) and the Exchequer Court Act s.19. A third party claim against the Oblats alleging they controlled and operated the residential school at all material times, was not relevant on this application. HELD: 1)The claim based on physical assault by the Sisters was struck. The Court has no jurisdiction over any cause of action relating to intentional torts committed by a Crown servant or employee prior to May 14, 1953. The Crown remains immune from claims for trespass, assault and battery committed by servants and officers before the enactment of the Crown Liability Act in 1953 (renamed the Crown Liability and Proceedings Act in 1990), which did not operate retroactively. The LAA s.3(3.1) does not create a cause of action but simply removes statutory time limitation periods barring otherwise existing actions. Before May 14, 1953 the Crown was subject to claims for negligence pursuant to the Exchequer Court Act s.19(c). The Dyson procedure is available in Canada in every jurisdiction except New Brunswick and Nova Scotia. 2)The claim based on negligence is subject to the two year time limitation prescribed by LAA s.3(1)(d) which must calculated having regard to the principles of discoverability. 3)The claims of breach of trust and breach of fiduciary duty are equitable claims subject to the six year time limitation in LAA ss.3(1)(h) which explicitly begins to run from the discovery of the cause of action (PG v. AG Canada). Relevant factual issues are to be dealt with at trial. 4)Even though the claim in trespass is based on acts alleged to have occurred over 50 years ago, it clearly falls within the class of actions contemplated by LAA s.3(3.1)(b)(ii). As such it is also exempted from any limitation period against others liable for the conduct. 5)The argument that the 12 month limitation period in POPA s.2(1)(a) should be applied in priority to the more general provisions of the LAAA was rejected in RJG v. AG Canada. 6)Claims based on direct liability of the Crown for negligence, breach of trust and fiduciary duty are not affected by time limitation periods applicable to the deceased Sister Greyeyes and her estate. The time limitation periods are abrogated by LAA s.3(3.2). Since there is no limitation period barring an action against the Sister or her estate, there can be no provincial limitation period available to the Federal Crown under CLPA s.24. 7)The other claims made directly against the Federal Crown are not affected by limitation periods applicable to Sister Elle or her estate. SAA ss.5 and 10(1),(3) and (4) do not bar the claims against her.  LAA s.3(3.2) abrogates the time limitation in SAA s.10(3)(b).