J. 2003 SKQB 58 Q.B.G. A.D. 2002 No. 23 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA BETWEEN: VICTOR DANIELS, STELLA MARJORIE SEVEREIGHT and RUSSELL LAMBERT SINCLAIR PLAINTIFFS (APPLICANTS) and ATTORNEY GENERAL OF CANADA DEFENDANT (RESPONDENT) Fran Huck and for the plaintiffs (applicants) Clint G. Docken Mark R. Kindrachuk and for the defendant (respondent) Elaine Lee JUDGMENT McLELLAN J. February 4, 2003 [1] The plaintiffs apply for certification of an action under The Class Actions Act, S.S. 2001, c. C-12.01 (the “CAA”) on behalf of the following classes as set forth in paragraph 5 of the statement of claim: (a) Veterans Resident Class Any Indian person who, as defined by the Indian Act, R.S.C. 1985, c. I-5 at the time of their discharge was not informed, nor was offered some or any of the veterans benefits that they were entitled to by reason of their service in World War I, World War II or the Korean War and/or their dependants who received some or all of the veteran benefits. (b) Veteran Non-Resident Class (c) Dependent Resident Class (d) Dependant Non-Resident Class [2] The plaintiff, Victor Daniels (“Daniels”), an Indian as defined under the Indian Act, enlisted in the Canadian Army on October 3, 1950 and served in the Korean War. He was discharged from the army on November 3, 1953. In paragraphs and 10 of the statement of claim, Daniels makes the following allegations: 9. At the time of his discharge in November, 1953, the Plaintiff, VICTOR DANIELS, was not informed of nor was he offered any benefits that he was entitled to by reason of his service either under the Indian Act or any other relevant Act or Statute in force under the laws of Canada including the Veterans Affairs Act, The War Veterans Allowance Act, The Pension Act and The Canadian Soldier Veterans Settlement Act or other applicable legislation. 10. The Plaintiff, VICTOR DANIELS, alleges that he was entitled to the full benefits available from the Crown payable to discharged veterans and that veterans who were Indians did not receive any or any full benefits for their service either in World War II or in the Korean War as did non-aboriginal veterans. [3] The plaintiff, Russell Lambert Sinclair (“Sinclair”), is resident of Alberta who claims individually and as representative subclass plaintiff who is non-resident of Saskatchewan on behalf of Indian war veterans residing outside the Province of Saskatchewan. [4] Sinclair enlisted in the Canadian Armed Forces in February, 1951 and was discharged in March 1972. He served in the Korean War between 1951 and 1953. In paragraphs 12 and 13 of the statement of claim Sinclair makes the following allegations: 12. At the time of his discharge in March of 1972, the Plaintiff, RUSSELL LAMBERT SINCLAIR, was not informed of nor was he offered any benefits that he was entitled to by reason of his service either under the Indian Act or any other relevant Act or Statute in force under the laws of Canada including the Veterans Affairs Act, The War Veterans Allowance Act, The Pension Act and The Canadian Soldier Veterans Settlement Act or other applicable legislation. 13. The Plaintiff, RUSSELL LAMBERT SINCLAIR, alleges that he was entitled to the full benefits available from the Crown payable to discharged veterans and further that veterans who were Indians and resided outside the Province of Saskatchewan did not receive any or any full benefits for their service either in World War II or in the Korean War as did non-aboriginal veterans. [5] The plaintiff, Stella Marjorie Severeight (“Severeight”) claims she was dependant of an Indian veteran of World War II and she sues both individually and on behalf of all dependants that did not receive benefits to which they were lawfully entitled to from the Crown as dependants of Indian war veterans. NATURE OF CLAIM [6] The plaintiffs claim damages for loss of benefits and base their claims on systemic negligence, breach of trust, breach of fiduciary duty, and unjust enrichment. [7] The plaintiffs claim: (a) That they were treated differently than non-native war veterans by requiring any benefits they were entitled to receive to be administered by officials of the Department of Indian Affairs or through Indian agents assigned to the reserves of returning war veterans; (b) That the officials and Indian agents were negligent in carrying out their duties to inform the plaintiffs of their rights to receive full and complete benefits and that Indian agents in some cases misappropriated benefit funds that were properly payable to the plaintiffs. The benefits which the plaintiffs say were not paid to Indian war veterans and their dependants, include, inter alia; (a) dependant’s allowances; (b) veteran loans and grants; and (c) educational and other benefits; (c) That the Crown is vicariously liable for the wrongful and negligent acts of the agents and employees; (d) That the Crown breached its fiduciary duty and trust obligations that it owed to the plaintiffs and other Indians who served in the Armed Forces of Canada by systematically discriminating against Indian war veterans and their dependants by improperly administering benefits and in failing to properly carry out the obligation placed on the Crown to protect the rights of Indian war veterans and their dependants by reason of the relationship and duties owed to Indians pursuant to the Indian Act; (e) That the Crown has been unjustly enriched by the improper withholding of benefits due to the plaintiffs since the date of their retirement or, alternatively from 1953, the date of passage of the Crown Liability Act, S.C. 1952‑53, c. 30 and further that by reason of the unjust enrichment and resulting constructive trust, the defendant ought to make full restitution. [8] Under the CAA “class” is defined as two or more persons with common issues respecting cause of action or potential cause of action. Common issues are defined 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. [9] Section provides that an action shall be certified as class action if the Court is satisfied that: (a) the pleadings disclose clause of action; (b) there is an identifiable class; (c) the claims of the class member raise common issues, whether or not the common issues predominate over other issues affecting individual members; (d) class action would be the preferable procedure for the resolution of the common issues; and (e) there is person willing to be appointed as representative plaintiff who: (i) would fairly and adequately represents the interests of the class; (ii) has produced plan for the class action that sets out workable method of advancing the action on behalf of the class and of notifying class members of the action; and (iii) does not have, on the common issues, an interest that is in conflict with the interests of the other class members. [10] Certain matters are not bar to certification. Section of the CAA states: The court shall not refuse to certify an action as class action by reason only of one or more of the following: (a) the relief claimed includes claim for damages that would require individual assessment after determination of the common issues; (b) the relief claimed relates to separate contracts involving different class members; (c) different remedies are sought for different class members; (d) the number of class members or the identity of each class member is not ascertained or may not be ascertainable; (e) the class includes subclass whose members have claims that raise common issues not shared by all the class members. POSITION OF THE DEFENDANT [11] The Crown opposes the certification application on the following grounds: (a) The applicants have failed to discharge the onus on them to demonstrate that the pleadings disclose cause of action: (i) All claims brought pursuant to the Crown Liability and Proceedings Act, R.S.C. 1985, c. C‑50, as am. based on acts or omissions occurring prior to 1953 are statute barred by virtue of s. 24 of the Crown Liability and Proceedings Act or by predecessor legislation to the same effect and therefore cannot constitute cause of action; (ii) After 1953, the only liability of the Crown is vicarious, arising from the alleged actions or omissions of Crown servants and agents. There are no pleadings to support the existence of any vicarious liability; (iii) All of the claims are out of time and statute barred by virtue of The Limitation of Actions Act, R.S.S. 1978, c. L-15, as am., the Crown Liability Act, the Crown Liability and Proceedings Act, or by predecessor legislation to the same effect; (iv) Claims potentially originating from the alleged actions or omissions of any person now deceased are additionally barred by The Trustee Act, R.S.S. 1978, c. T‑23, as am., or its predecessors, and/or by The Survival of Actions Act, S.S. 1990‑91, c. S‑66.1, as am.; (v) The claims in negligence do not disclose any cause of action against the Crown or its agents; (vi) The claims of discrimination have no legal foundation either pleaded, or in existence at the time of the causes of action are claimed to have arisen, and do not disclose any cause of action against the Crown or its agents; (vii) The claims of breach of fiduciary duty do not disclose any cause of action against the Crown or its agents; (b) The applicants have failed to adequately describe an identifiable class of two or more persons who are appropriately represented by the proposed plaintiffs; (c) The applicants have failed to demonstrate that the claims of the class members raise common issues, the resolution of which will advance the litigation proposed; (d) The applicants have failed to demonstrate that class proceeding would be the preferable procedure for the resolution of the claimed common issues; (e) The applicants have failed to demonstrate that there are representative plaintiffs who would fairly represent the interests of the proposed class; (f) The applicants have not produced workable litigation plan, or demonstrated they have the resources to represent the class claimed; and (g) The plaintiffs have not demonstrated that the proposed plaintiffs do not have conflicts with the interests of the other class members. CAUSE OF ACTION [12] do not intend to deal with all of the submissions by the Crown that the plaintiffs’ pleadings fail to disclose cause of action. [13] Suffice it for me to say that although the onus is on the plaintiffs, on certification application, to satisfy the Court that the pleadings disclose cause of action, it is not very high onus. [14] The test to be applied in certification applications is similar to those used in applications to strike statement of claim as disclosing no cause of action. Firstly, all allegations of fact pleaded are to be accepted as true and secondly, pleadings will only be struck if it is plain and obvious that the plaintiffs cannot succeed. In my view court should be reluctant to deny plaintiff his or her day in court. [15] In Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] S.C.R. 959, the Supreme Court of Canada pointed out: Thus, the test in Canada governing the application of provisions like Rule 19(24)(a) of the British Columbia Rules of Court is the same as the one that governs an application under R.S.C. O. 18, r. 19; 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 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 strong defence should prevent the plaintiff from proceeding with his or her case. Only if the action is certain to fail because it contains radical defect ranking with the others listed in Rule 19(24) of the British Columbia Rules of Court should the relevant portions of plaintiff’s statement of claim be struck out under Rule 19(24)(a) (per Wilson J. at p. 980) [16] Madam Justice Wilson continued at pp. 990-91: ... [W]here statement of claim reveals difficult and important point of law, it may well be critical that the action be allowed to proceed. Only in this way can we be sure that the common law in general, and the law of torts in particular, will continue to evolve to meet the legal challenges that arise in our modern industrial society. [17] The issue was considered in the context of certification application in Abdool v. Anaheim Management Ltd. (1995), 1995 CanLII 5597 (ON SCDC), 21 O.R. (3d) 453 (Ont. Gen. Div.). In that case Moldaver J. sitting in the Division Court stated: The principles to be applied when considering whether pleadings support legal cause of action are as follows: (a) All allegations of fact, unless patently ridiculous or incapable of proof, must be accepted as proved; (b) The defendant, in order to succeed, must show that it is plain and obvious beyond doubt that the plaintiffs could not succeed; (c) The novelty of the cause of action will not militate against the plaintiffs; and (d) The statement of claim must be read as generously as possible, with view to accommodating any inadequacies in the form of the allegations due to drafting deficiencies. (at p. 469) [18] The generous approach to be adopted on this application is specifically spelled out in s. of the CAA which provides: 7(1) The court may adjourn the application for certification to permit the parties to amend their materials or pleadings or to permit further evidence to be introduced. (2) An order certifying an action as class action is not determination of the merits of the action. [19] In Hollick v. Toronto (City), 2001 SCC 68 (CanLII), (2001), 205 D.L.R. (4th) 19, the Supreme Court pointed out, when considering the Class Proceedings Act in Ontario, that the Act should be construed generously. Chief Justice McLachlin also pointed out at pp. 28-29 that: [15] The Act reflects an increasing recognition of the important advantages that the class action offers as procedural tool. ...[C]lass actions provide three important advantages over multiplicity of individual suits. First, by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding and legal analysis. Second, by distributing fixed litigation costs amongst large number of class members, class actions improve access to justice by making economical the prosecution of claims that any one class member would find too costly to prosecute on his or her own. Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers modify their behaviour to take full account of the harm they are causing, or might cause, to the public.... In my view, it is essential therefore that courts not take an overly restrictive approach to the legislation, but rather interpret the Act in way that gives full effect to the benefits foreseen by the drafters. [16] It is particularly important to keep this principal in mind at the certification stage. In its 1982 report, the Ontario Law Reform Commission proposed that new class action legislation include “preliminary merits test” as part of the certification requirements. The proposed test would have required the putative class representative to show that “there is reasonable possibility that material questions of fact and law common to the class will be resolved at trial in favour of the class”: Report on Class Actions, supra, vol. III, at p. 862. Notwithstanding the recommendation of the Ontario Law Reform Commission, Ontario decided not to adopt preliminary merits test. Instead it adopted test that merely requires that the statement of claim “disclose ... cause of action”: see Class Proceedings Act, 1992, s. 5(1)(a). Thus the certification stage is decidedly not meant to be test of the merits of the action: see Class Proceedings Act, 1992, s. 5(5) (“An order certifying class proceeding is not determination of the merits of the proceeding”); see also Caputo v. Imperial Tobacco Ltd. (1997), 1997 CanLII 12162 (ON SC), 34 O.R. (3d) 314 at p. 320, 148 D.L.R. (4th) 566 (Gen. Div.) (“any inquiry into the merits of the action will not be relevant on motion for certification”). Rather the certification stage focuses on the form of the action. The question at the certification stage is not whether the claim is likely to succeed, but whether the suit is appropriately prosecuted as class action .... [20] In very extensive and well researched brief the Crown, in addition to the arguments relating to the deficiencies in the pleadings, raised number of arguments as to why certification should be denied. [21] Among the submissions are suggestions that the plaintiffs have failed: (a) To adequately describe an identifiable class; (b) To demonstrate that the proposed claims raise common issues which will advance the litigation proposed; (c) To demonstrate there are proposed plaintiffs who would fairly and adequately represent the interests of the class; (d) To produce workable litigation; (e) To demonstrate that the proposed plaintiffs do not have any interest potentially in conflict with other class members. [22] Time does not permit me to deal with all of the submissions. The deadline for Indian War Veterans to apply for an ex gratia payment from the Crown expires on February 15, 2003. The argument on this certification application concluded on January 30. Any members of the proposed class who are eligible to make application ought to be provided with as much time as may reasonably be possible to decide whether they will make an application for the ex gratia payment or continue with litigation. The fact that do not refer to those arguments in this judgment should, in no way, be construed as suggesting that the positions taken by the Crown are without merit. find it necessary to only deal with the limitation issues raised by the Crown which, in my view, provide complete answer to the application. SHOULD LIMITATION ARGUMENTS BE DEALT WITH ON THE CERTIFICATE APPLICATION? [23] The plaintiffs suggest that the limitation arguments advanced by the defendant should not be dealt with at the certification stage but rather as the following common issues: (a) Are the claims by the class members governed by limitation periods found in The Limitation of Actions Act, R.S.S. 1978, c. L-15, as am., and/or the Crown Liability Act, S.S. 1952-53, c. 30, as am.? (b) If so, what are the applicable limitation periods and when do they commence running? [24] The plaintiffs rely on the decision of Allan J. of the British Columbia Supreme Court in Brogaard v. Canada (Attorney General), 2002 BCSC 1149 (CanLII), [2002] B.C.J. No. 1775 (QL) in support of their position. The factual underpinnings in that certification application were outlined by Allan J. as follows at paras. ¶1 ... The proposed class members are “British Columbia residents who are Same-sex Common-law Partners of Contributors who died during the Class Period”. ¶2 “Same-sex Common-law Partner” is person who was in same-sex common-law relationship with Contributor who meets the definition of “common-law partner” within the Canada Pension Plan Act, R.S.C., c. C-8 as amended (the “Act”), and includes the estate of such person who died after their Contributor partner. ¶3 “Contributor” is person who made Canada Pension Plan (“CPP”) contributions pursuant to the Act. ¶4 The proposed Class Period is between April 17, 1985 and January 1, 1998. April 17, 1985 is the date that the Canadian Charter of Rights and Freedoms (the “Charter”) came into effect. January 1, 1998 is the date that Same-sex Common-law Partners obtained the right to claim Survivors’ Pensions pursuant to legislation enacted July 31, 2000. The proposed class members claim entitlement to “Survivors’ Pensions” during the Class Period as common-law partners of Contributors. ¶5 The plaintiffs say that the defendant Crown collects CPP contributions from all working Canadians regardless of their sexual orientation, but, until July 31, 2000, it discriminated against Same-sex Common-law Partners on the basis of their sexual orientation by denying them the right to receive Survivors’ Pensions. The plaintiffs assert that by doing so, the Crown has breached its fiduciary duty to the proposed class members and has been unjustly enriched. The plaintiffs also claim that the Crown has breached s. 15(1) of the Charter .... [25] Crown counsel correctly point out that the issue before Allan J. was essentially Charter challenge to legislation enacted on July 31, 2000, attacking provision which made an amendment retroactive only to January 1, 1998. The plaintiffs were persons whose same sex partner had died before January 1, 1998, and after the enactment of the Charter in 1985. [26] In Brogaard, supra, there were number of limitations issues, including the constitutionality of various limitations periods contained within the challenged statute itself. Allan J. points out at paras. 110 and 111: ¶110 The Crown also alleges that the plaintiffs are statute-barred from receiving the Survivors’ Pensions that they seek. In my view, there are number of limitations issues, some of which are common and others that will be individual to the class members. ¶111 With respect to the Charter issues, the Crown submits that because other limitations in the Act are not challenged (specifically, ss. 60(2) and 70(1) and (2)), the resolution of the proposed common issues relating to the Charter will not advance the plaintiffs’ claims in any meaningful way. The plaintiffs challenge the applicability of those limitations to the relief they seek. Moreover, they may decide to amend their statement of claim to plead that those sections are also unconstitutional. [Emphasis added] [27] In his opinion “only if the class members succeed in this litigation and reach the bureaucratic stage of applying for individual Survivors’ Pensions, will the question of individual issues arise.” [28] In my view the circumstances of this case are different. There is no suggestion that Indian War Veterans were denied the “right” to apply for veteran’s benefits. The issue in this case is their allegation that they were not properly informed of their right to apply. [29] Another case relied on by the plaintiffs is Harrington v. Dow Corning Corp., 2000 BCCA 605 (CanLII), [2000] 11 W.W.R. 201 (B.C.C.A.). In that case the court pointed out that: ... The possibility that some claims may be barred by limitations period or that others may require the consideration of negligence by the plaintiffs or third parties, is not reason to refuse certification of the common issue. It is equally possible that the determination of the common issue will reduce the number of active claimants as well as the size of some claims. (at p. 226, para. 64). [30] It is obvious that in both cases there would certainly be number of proposed plaintiffs whose claims were within the relevant time limits in British Columbia. [31] On the other hand, if the claims of all the plaintiffs in proposed class action are statute barred, that issue ought to be decided at the very outset of certification application. It would make no sense if it were otherwise. [32] The Ontario Court of Appeal came to that conclusion in Stone v. Wellington (County) Board of Education (1999), 1999 CanLII 1886 (ON CA), 29 C.P.C. (4th) 320. In that case the plaintiff commenced an action pursuant to the Class Proceedings Act in that Province alleging that she and other members of the proposed class suffered serious personal injuries from exposure to toxic emissions from hazardous waste allegedly lying below the City of Guelph. McKenzie J. dismissed the action by reason of limitation period in the Public Authorities Protection Act. [33] The plaintiff argued in the Court of Appeal that an action brought pursuant to the Class Proceedings Act could not be dismissed solely on grounds personal to the plaintiff. The court dismissed the appeal holding that: 10 Where representative plaintiff, for reasons personal to that plaintiff, is definitively shown as having no claim because of the expiry of limitation period, he or she cannot be said to be member of the proposed class. The continuation of the action in those circumstances would be inconsistent with the clear legislative requirement that the representative plaintiff be anchored in the proceeding as class member, not simply nominee with no stake in the potential outcome. 11 For both these reasons we conclude that there is no bar to the bringing of these motions, even at the pre-certification stage of the proceedings. [Emphasis added) [Stone v. Wellington (County) Board of Education, supra, paras. 10-11]. [34] In Burke v. American Heyer-Schulte Corp., [1994] O.J. No. 141 (QL) (Ont. Gen. Div.), (1994), 25 C.P.C. (3d) 177, Montgomery J. also dismissed class action which he concluded was statute-barred. The headnote in that case reads as follows: The defendants moved for summary dismissal of the class action based on limitation defence. The plaintiff alleged that she suffered damages arising from silicone breast implants designed, manufactured and marketed by the defendants. She had the implants inserted in 1975. By 1976, she was suffering tenderness, hardening of the breasts, lumps, inflammation, fatigue, numbness, cysts, headaches, swelling in her fingers, and arthritis. The statement of claim, framed in negligence, misrepresentation and breach of warranties, was issued on September 3, 1993. HELD: The action was dismissed as statute-barred. In both tort and contract, the limitation period in Ontario is six years. The lengthy delay between the plaintiff’s awareness of the symptoms in 1976 and her suit in 1993 could not simply be due to lack of medical-legal report. There was nothing before the court to indicate that she had such report today. All the elements necessary for cause of action were manifest in 1976. [[1994] O.J. No. 141 (QL)]. LIMITATION ARGUMENT [35] The Crown argues that if any claim by the plaintiffs existed, it cannot be brought 30-60 years after the claimed entitlement to benefits arose—that all claims are statute-barred and have been so for decades. [36] The relevant sections of the Crown Liability and Proceedings Act (“CLPA”) are as follows: 3. The Crown is liable for damages for which, if it were person, it would be liable ... (b) in any other province [other than Quebec], in respect of (i) tort committed by servant of the Crown, or (ii) breach of duty attaching to the ownership, occupation, possession or control of property. 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 the Act, have given rise to cause of action for liability against that servant or the servant’s personal representative or succession. 24. In any proceedings against the Crown, the Crown may raise (a) any defence that would be available if the proceedings were suit or an action between persons in competent court; and (b) any defence that would be available if the proceedings were by way of statement of claim in the Federal Court. 32. Except as otherwise provided in this Act or in any other Act of Parliament, the laws relating to prescription and the limitation of actions in force in province between subject and subject apply to any proceedings by or against the Crown in respect of any cause of action arising in that province, and proceedings by or against the Crown in respect of cause of action arising otherwise than in province shall be taken within six years after the cause of action arose. corresponding section is found in the Federal Court legislation. [37] Section 32 was first enacted in the Crown Liability Act in slightly different form. The section clearly incorporates, by reference, the Saskatchewan Limitation of Actions Act (the “LAA”) with respect to proceedings by or against the Federal Crown. The relevant sections of the LAA are the following: 3(1) The following actions shall be commenced within and not after the times respectively hereinafter mentioned: ... (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; ... (j) any other action not in this Act or any other Act specifically provided for, within six years after the cause of action arose. (2) Nothing in this section extends to an action where the time for bringing the action is by statute specially limited. [38] In two very recent decisions Mr. Justice Ball dealt with limitation periods as they apply to the Crown. Firstly, in Kaiswatum v. Attorney General of Canada and Les Oblats De Marie Immaculee Du Manitoba, 2003 SKQB 46 (CanLII), the plaintiff claimed he was physically assaulted and that he suffered loss of his traditional language and culture from 1944 until 1952 when attending residential school. He claimed the physical assaults were perpetrated by employees and staff at the residential school. The plaintiff claimed that his damages were caused by the negligence, breach of trust and breach of fiduciary duty of the Crown. [39] Secondly, in [P.G.] v. Attorney General of Canada and William Brittain and Douglas Ross, 2003 SKQB 41 (CanLII), the plaintiff claimed that he was sexually assaulted by two employees of the residential school he attended between 1974 and 1977. The plaintiff claimed the Crown was vicariously liable for the conduct of the two employees. In the alternative the plaintiff claimed damages caused by the negligence, breach of trust, and breach of fiduciary duty of the Crown. [40] In this application the Crown advances the following arguments with respect to limitation periods: 1) All claims brought pursuant to the Crown Liability and Proceedings Act based on acts or omissions occurring prior to 1953 are statute barred by virtue of s. 24 of the Crown Liability and Proceedings Act or by predecessor legislation to the same effect and therefore can not constitute cause of action; 2) After 1953, the only liability of the Crown is vicarious, arising from the alleged actions or omissions of Crown servants and agents. There are no pleadings to support the existence of any vicarious liability; 3) All of the claims are out of time and statute barred by virtue of The Limitation of Actions Act, the Crown Liability Act, the Crown Liability and Proceedings Act, as amended, or by predecessor legislation to the same effect; 4) Claims potentially originating from the alleged actions or omissions of any person now deceased are additionally barred by The Trustee Act, as amended, or its predecessors, and/or by The Survival of Actions Act, as amended. [41] In Kaiswatum, supra, Ball J. rejected the argument that Crown immunity extended to all claims prior to 1953. He reviewed the history of Crown immunity at paras. [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 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. ). [Emphasis added] would add that the plaintiffs’ claim for unjust enrichment is also claim for equitable relief. [42] agree with Ball J. that prior to May 14, 1953, no action may be brought against the Crown for intentional torts such as trespass and assault and battery. The claims by the plaintiff in this case are not claims for intentional torts. In the main they are claims for equitable relief. [43] The Crown argued that the Dyson procedure was not applicable by reason of the fact that the plaintiffs are claiming damages and the only remedy available in Dyson, supra, is declaration. [44] Firstly, can find nothing in the CLPA which precludes plaintiff from obtaining equitable relief against the Crown. declaration is defined by Peter W. Hogg ad Patrick J. Monahan in Liability of the Crown, 3d ed. (Toronto: Carswell, 2000), c. 2.3, p. 26: declaration is judgment that declares the law applicable to the parties but does not include any coercive order. Breach of declaration is not contempt of Court and does not attract any other penalty. This deficiency in the remedy is sometimes cured by accompanying declaration with coercive relief such as damages or an injunction or specific performance, but this is not necessary. The Court has the power to make declaration “whether or not any consequential relief is or could be claimed”. [45] If the trial judge were to decide that the Crown breached fiduciary duty or was guilty of breach of trust, or was unjustly enriched, with respect to the claims of the plaintiffs and that the plaintiffs suffered damages, it is inconceivable that the Crown would ignore the declaratory judgment. [46] That point is made clear in Hogg and Monahan in Liability of the Crown, c. 2.3, p. 27 where the learned authors point out: (b) Crown liability Declaration is remedy that is available against the Crown. The absence of coercive decree avoids the problems of commanding the Crown and enforcement against the Crown, which led the Courts to create Crown immunity from injunction, specific performance, mandamus and discovery. And yet the absence of coercive decree is seldom disadvantage when the Crown is the defendant, because public officials can usually be relied upon to obey the law once it has been declared by Court. [Emphasis added] [47] In its amended statement of defence the Crown alleges that the claim of the plaintiffs is barred by s. 269 of the National Defence Act, R.S.C. 1985, c. N-5. [48] The limitation period referred to in s. 269 would only provide limitation argument to the Crown if the allegations of negligence, breach of trust and breach of fiduciary duty in the statement of claim were confined to alleged acts or omissions of military personnel. The statement of claim contains allegations against the Department of Indian Affairs and Indian agents, the Department of Veterans Affairs and the Director of the Veterans Land Act. At best, it is possible that s. 269 may provide complete answer with respect to few Crown servants or agents who might otherwise be found guilty of negligence in this action. It does not bar claims made directly against the Crown for breach of trust and breach of fiduciary duty. [49] The Crown also argues: (a) That pursuant to s. 59 of The Trustee Act, R.S.S. 1978, c. T-23, as am., and its predecessor legislation in force in Saskatchewan until June 22, 1990, person who claims to have been the victim of tortious conduct by deceased person, has maximum of one year from the date of death to maintain an action against the executor or administrator of the estate; (b) For any benefit due before 1990, no action lies more than one year after the date of death of the employee who is alleged to have breached any duty owed; (c) Liability of an employee or agent is the only foundation for claimed liability of the Crown; (d) If an action cannot be brought against an individual employee or agent, it cannot be brought against the Crown. [50] The above argument is based on the combined effects of ss. 10 and 24 of the CLPA and s. 59 of The Trustee Act. Section 59 of The Trustee Act provides as follows: 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. [51] The argument was effectively dealt with by Ball J. in Kaiswatum, supra, in the following paragraphs found on pp. 18 and 19: [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. [41] The plaintiff’s claims of negligence, breach of trust and breach of fiduciary duty are claims of direct liability alleging the breach of 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. [52] There is another short answer to the argument, namely, there is no evidence to suggest all Crown employees who administered the benefits claimed by the plaintiffs are deceased, and if they are, when they died. [53] In paragraph 22 of the amended statement of claim, the plaintiffs allege: ... [T]hat the Crown cannot limits [sic] its constitutional responsibility to Indians by limiting their right to sue the Crown by involving Provincial Limitation Acts that prevent actions from being sustained against the Crown by Indians as it has exclusive jurisdiction over Indians pursuant to the Constitution Act, 1867 30 and 31, Volume C. (U.K. sec. 91(24), Constitution Act, 1982, and the Canadian Charter of Rights and Freedoms. find no merit in that argument. [54] agree with the Crown that this argument was disposed of conclusively by the Supreme Court of Canada in Wewaykum Indian Band v. Canada, 2002 SCC 79 (CanLII), [2002] S.C.J. No. 79 (QL), at para. ¶116 Parliament is entitled to adopt, in the exercise of its exclusive legislative power, the legislation of another jurisdictional body, as it may from time to time exist: Coughlin v. Ontario Highway Transport Board, 1968 CanLII (SCC), [1968] S.C.R. 569; Ontario (Attorney General) v. Scott, 1955 CanLII 16 (SCC), [1956] S.C.R. 137. This is precisely what Parliament did when it enacted what is now s. 39(1) of the Federal Court Act. [55] also agree with the Crown that Wewaykum, supra, deals with the plaintiff’s argument that alleged misconduct of the kind at issue in this case gave rise to “continuing breach” which escapes statutory limitations. Binnie J. observes in Wewaykum at para. 135: ¶135 Acceptance of such position would, of course, defeat the legislative purpose of limitation periods. For fiduciary, in particular, there would be no repose. In my view such conclusion is not compatible with the intent of the legislation.... [56] To conclude the limitation argument the equitable claims of the proposed plaintiffs under s. 3(1)(h) of the LAA are statute barred after six years from the discovery of the cause of action. All other claims are barred under s. 3(j) within six years after the cause of action arose unless they are saved by the common law doctrine of discoverability. DISCOVERABILITY [57] In [P.G.], supra, Ball J. reviewed the decisions relied on by the plaintiff and the Crown in support of their respective arguments as to whether or not the doctrine of discoverability applies to the claims advanced by the plaintiffs. [58] Ball J. came to the conclusion that all of the limitation periods in The Limitation of Actions Act were subject to discoverability. His reasons are as follows: [20] Discoverability is common law rule of interpretation applied by courts in construing statutory limitation provisions. Briefly, the principle is that where limitation period begins to run from the accrual of cause of action or the occurrence of some component of cause of action, the time will not begin to run until the plaintiff has discovered, or should with reasonable diligence have discovered, the wrongful nature of the defendant’s acts and the nexus between those acts and his injuries. [21] In [R.J.G.], Barclay J. stated at para. 10 that none of the provisions of the LAA appear to codify the common law discoverability doctrine: [10] It is critical to underscore that there appears to be no “ultimate limitation period” or “longstop provision” in the Act. Furthermore, the Act does not appear to codify the common law discoverability doctrine in any of its provisions. This is significant in that they provide salient contrast with other jurisdictions and lend support to the conclusion that the common law doctrine of discoverability applies in this case. [22] And at para. [17] Some provinces, notably, Manitoba and British Columbia, have incorporated discoverability into certain sections of their limitation legislation. The Saskatchewan legislation does not appear to codify the doctrine. Of course, this does not mean that the common law doctrine does not apply to the interpretation of the Act’s provisions. The Supreme Court has held that very strong legislative language would be required to displace the operation of the common law rule of discoverability.... [23] And again at para. [21] It is clear that s. 3.1 [sic] does not codify the rule of discoverability, but rather removes the limitation periods with respect to specific sexual abuse claims. Therefore, in my view, with respect to all the other sections of the Act, discoverability would apply. This conclusion is supported in recent decision by the British Columbia Supreme Court. In B. (K.L.) v. British Columbia, 2001 BCCA 221 (CanLII), [2001] W.W.R. 47 at 66, MacKenzie J.A. of the British Columbia Court of Appeal said that in case where there is claim for physical abuse which cannot fall into the exemption for sexual abuse, discoverability still applies. At para. 11, Barclay J. referred to series of decisions of the Supreme Court of Canada as follows: .. As LeDain J. held on behalf of the Supreme Court of Canada in Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] S.C.R. 147 at 224, discoverability is “general rule” that cause of action arises for the purposes of limitation period when the material facts on which it is based have been discovered or ought reasonably to have been discovered by the plaintiff by the exercise of reasonable diligence. [12] The Supreme Court of Canada has subsequently held that the discoverability rule is an interpretive tool that ought to be applied every time limitation provision is in issue: Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] S.C.R. 549 at para. 38. The court in that case held that very clear legislative language indeed would be required to “displace the general rule of discoverability”. Marceau J. of the Alberta Court of Queen’s Bench stated in Brown (Next Friend of) v. University of Alberta Hospital, 1997 CanLII 14750 (AB QB), [1997] W.W.R. 645 at para. 68, that “[i]n my view, the Supreme Court has plainly said that they will apply the discoverability rule to all statutes of limitation ....” [13] The general rule that time begins to run when the material facts of the cause of action have been (or ought to have been) discovered was extended by the Supreme Court in M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] S.C.R. at 24. As result of the decision in that case, plaintiff now must not only know the material facts but must realize the nexus between the harm and its likely cause. As the court stated, the cause of action does not accrue “until the plaintiff is reasonably capable of discovering the wrongful nature of the defendant’s acts and the nexus between those acts and her injuries.” [14] Further expanding the scope of the discoverability doctrine was the 1999 decision of the Supreme Court of Canada in Novak v. Bond (1999), 1999 CanLII 685 (SCC), 172 D.L.R. (4th) 385 (S.C.C.). In that case, the Court held that in applying the discoverability rule, time does not begin to run until reasonable person would conclude that someone in the plaintiff’s shoes could reasonably bring an action, “[i]n light of his or her particular circumstances ...” (headnote at p. 386). Although the Supreme Court in Novak was particularly concerned with the interpretation of statutory discoverability provision in the British Columbia legislation, the reasoning in Novak has since been extended to the common law rule of discoverability. Indeed, the recent decision of Zarzeczny J. in P.R.A. v. Orange Benevolent Society, 2002 SKQB 211 (CanLII), [2002] S.J. No. 307 suggests that it applies specifically in Saskatchewan. [25] In Plotnikoff, supra, Kyle J. decided that the common law discoverability principle is incorporated into the LAA by s. 3(1)(h), which applies to actions grounded on accident, mistake or other equitable grounds of relief, and that this indicated legislative intention to exclude the principle for other claims, including those in negligence. Beginning at para. 7, Kyle J. stated: [7] The plaintiff in seeking to support its claims for negligence, breach of trust and breach of fiduciary duty, argues that the discoverability rule has broader application than that which is found in paragraph 3.1(h) of the Act which says: (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; [8] This section of the Act recognizes the existence of the discovery rule and limits its application to equitable claims as therein described. The clear intent of the legislation is to place time limits upon all causes of action and to limit the discovery rule to equitable grounds of relief.... [9] It is argued in support of the discoverability rule that precedents based on the limitations of action legislation in British Columbia should be followed. note, however, that the case of Novak v. Bond, 1999 CanLII 685 (SCC), [1999] S.C.R. 808 related to and should be confined to the unique provision of the British Columbia act. It would be unwise to import that precedent into Saskatchewan where the law is in no way similar. [10] note too that several cases which tended to broaden the discovery rule pre-dated the statutory amendments such as ss. 3(3.1) of the Act and had the effect of preserving causes of action for sexual abuse. Legislative action has now made the discovery rule unnecessary in such cases. [11] Accordingly, the reference to negligence in paragraphs 15, 16, 17 and 23 will be struck by reason of negligence actions being statute barred. [26] The above excerpts illustrate why the Court came to very different conclusions in [R.J.G.]. and Plotnikoff. [27] First, in Plotnikoff, the Court decided that s. 3(1)(h) of the LAA is codification which confines discoverability to equitable claims. In [R.J.G.], the Court did not refer to s. 3(1)(h) but decided that all limitation periods are to be interpreted having regard to discoverability. [28] Second, in [R.J.G.] the Court relied upon number of decisions of the Supreme Court of Canada confirming that as general rule the discoverability principle ought to be applied when limitation provision is in issue, so that time begins to run when the plaintiff is reasonably capable of discovering the wrongful nature of the defendant’s acts and the nexus between those acts and the plaintiff’s injuries. Those decisions include Novak v. Bond (1999), 1999 CanLII 685 (SCC), 172 D.L.R. (4th) 385, Peixeiro v. Haberman, 1997 CanLII 325 (SCC), [1997] S.C.R. 549 at para. 38, M.(K.) v. M.(H.), 1992 CanLII 31 (SCC), [1992] S.C.R. at 24 and Central Trust Co. v. Rafuse, 1986 CanLII 29 (SCC), [1986] S.C.R. 147 at 224. In Plotnikoff the Court referred only to Novak v. Bond, supra, which it distinguished on the basis that the case related to and should be confined to unique British Columbia legislation. [29] Third, in Plotnikoff the Court reasoned that the enactment of s. 3(3.1) of the LAA “... had the effect of preserving causes of action for sexual abuse ... [making] the discovery rule unnecessary in such cases.” In [R.J.G.], the Court suggested that while s. 3(3.1) may have made the discovery rule irrelevant in the limited circumstances referred to therein, it did not change the application of the doctrine as it had previously existed for other claims. [30] While the current law is not settled on the point, have decided to follow the decision of this Court in [R.J.G.], supra. Sections 3(1)(d) and 3(1)(h) of the LAA have existed in their current forms since at least 1932 (see S.S. 1932, c. 18, s. 3). They are indistinguishable from much of the counterpart legislation in other jurisdictions considered by the Supreme Court of Canada in the decisions referred to above. All of those judgments were rendered after the enactment of ss. 3(1)(d) and 3(1)(h). Accordingly do not view the reference to discoverability in s. 3(1)(h) as codification which eliminates discoverability as consideration in all other claims. Although the enactment of s. 3(3.1) of the LAA in 1993 made issues of discoverability irrelevant for claims of trespass in limited circumstances, if those issues were previously relevant to other claims then in my view s. 3(3.1) did not serve to make them irrelevant. [31] Although the plaintiff’s claim in negligence may well be barred by the two year limitation period prescribed by s. 3(1)(d)(i) of the LAA, find that discoverability may be relevant to determining when that limitation period began to run. In the absence of agreement on the facts, there will be requirement for factual determination at trial with respect to when or over what period of time the plaintiff achieved substantial awareness of the wrongfulness of the actions sued upon and their consequential effects upon him. [59] agree with Mr. Justice Ball. [60] The causes of action proposed by the plaintiffs can only survive by application of the doctrine of discoverability. That gives rise to the critical question on this application—is class action the preferable procedure to determine issues of discoverability? [61] The decision in Brogaard, supra, is clearly distinguishable. The issue in that case was, in essence, question of law as to whether the plaintiffs would have the right to apply for survivor benefits. It was not dependant on the individual state of knowledge or circumstance of each plaintiff. [62] In McKay v. CDI Career Development Institutes Ltd. (1999), 1999 CanLII 5599 (BC SC), 30 C.P.C. (4th) 101, Blair J. of the British Columbia Supreme Court dismissed an application for certification when he concluded that the causes of action, the damages alleged and the issue proposed by the representative plaintiff as being common were dependant upon the class members individually establishing their claims against the defendant. Blair J. pointed out the difficulties in proceeding by way of class action in circumstances such as exist in this case. He stated at para. 47, p. 115: 47 further find that the individuality of the claims pose substantial difficulties in proceeding with certification as class action and conclude that these difficulties outweigh those likely to be experienced if relief were sought by other alternative means. In Mouhteros v. DeVry Canada Inc., supra [(1998), 1998 CanLII 14686 (ON SC), 41 O.R. (3d) 63 (Gen. Div.)],Winkler J. stated at para. 31: The 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 class action would be completely unmanageable. He later continued at para. 33: In my view, certification in this case will result in multitude of individual trials, which will completely overwhelm any advantage to be derived from trial of the few common issues. 48 In Sutherland v. Canada (Attorney General) (1997), 15 C.P.C. (4th) 329 (B.C.S.C.), Smith J. dealt with class certification application by persons affected by the operation of third runway at Vancouver airport. Mr. Justice Smith held there were no common issues because of the variables impacting on the various members of the proposed class, stating at p. 341: Moreover, they [the issues] are intrinsically individualistic and would inevitably reduce to discrete adjudications for each plaintiff. Little or no benefit would accrue to class members from common trial of any of these issues and, in the circumstances, class proceeding would not be fair and efficient method for resolving them. 49 In Tiemstra v. Insurance Corp. of British Columbia (1996), 1996 CanLII 2819 (BC SC), 22 B.C.L.R. (3d) 49 (B.C.S.C.) Chief Justice Esson (as he then was) denied an application for certification of class proceeding for individuals whose no fault claims were rejected under the defendant’s policy known as “no crash-no cash”. At p. 61, the Chief Justice concluded: On the other hand, class actions have the potential for becoming monsters of complexity and cost. In this case, am persuaded that the gloomy picture painted by I.C.B.C. is much closer to reality than the rosy one painted by the plaintiff. am therefore persuaded that class proceeding would not be the preferable procedure for the fair and efficient resolution of these claims. find that the conclusion of Chief Justice Esson is applicable to Mr. McKay’s application and that, even were there common issues for consideration, the certification of this action would lead to series of individual trials as each member of the class sought to establish their action and damages against CDI. The complexity and costs would be substantial and the organization of such proceeding would be exceedingly difficult. [63] case even more directly on point is M.C.C. v. Canada (Attorney General), [2001] O.J. No. 4163 (QL) decision of Haines J. of the Ontario Superior Court. In that case the plaintiffs were former students and the families of former students of Mohawk Institute Residential School located in Brantford, Ontario. The claims which the plaintiffs sought to have certified as class proceeding ranged from non-sexual assault to breaches of aboriginal and treaty rights. [64] In dealing with the limitation and laches arguments advanced by the Crown, Haines J. made the following comments: ¶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 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 reasonable time after discovering the cause of action that was fraudulently concealed. (p. para. 74) [65] The comments of Winkler J. in Mouhteros v. DeVry Canada Inc. (1998), 1998 CanLII 14686 (ON SC), 41 O.R. (3d) 63 (Gen. Div.) and Haines J. in M.C.C. v. Canada (Attorney General), supra, are equally applicable to this case. It is not possible to determine issues of discoverability in any global fashion. It will be necessary to have an inquiry into the state of mind of each individual plaintiff over a period of 40 years. As Winkler J. pointed out in Mouhteros, such a class action would be completely unmanageable and certification will result in a multitude of individual trials which would completely override any advantage that might be derived from a trial of a few potential common issues. [66] Furthermore, leaving aside the limitation problems, individual determinations will be required of each individual plaintiff in order to ascertain whether that plaintiff has a cause of action. [67] For example, finding that the Crown had fiduciary duty to properly inform every Indian war veteran as to the benefits they were entitled to receive would not amount to finding that each such war veteran had cause of action. A determination would still be required as to whether there had been a breach of the duty to properly inform every proposed plaintiff. An individual inquiry would be required as to what information each Indian veteran received, whether he understood the information and whether he made an informed decision. Similarly, a finding that there was a trust relationship between the veterans and the Crown as to the administration of the benefits would not determine whether there was a breach of any such relationship without an inquiry into the facts and circumstances of each individual veteran. [68] Again, those determinations cannot be made in manner that would apply generally to the members of the class. They are fundamental to the existence of each class member’s right of action and must be made on a case by case basis. The individual findings that would be necessitated in this case go far beyond the matters enumerated in s. of the CAA, supra, p. 6, as not being bars to certification. [69] In Abdool v. Anaheim Management Ltd., supra, O’Brien J. set forth what he considered to be the main objects of class proceedings legislation at p. 461: It seems clear the three main objects of the class proceeding legislation are: (i) judicial economy, or the efficient handling of potentially complex cases of mass wrongs; (ii) improved access to the courts for those whose actions might not otherwise be asserted. This involved claims which might have merit but legal costs of proceeding were disproportionate to the amount of each claim and hence many plaintiffs would be unable to pursue their legal remedies; (iii) modification of behaviour of actual or potential wrongdoers who might otherwise be tempted to ignore public obligations. [70] fail to see how those objectives will be achieved by certifying this action as class proceeding. [71] Counsel for the plaintiffs indicated in argument that in their estimation, the damages sought by individual plaintiffs range from approximately $280,000.00 to $368,000.00. Those are significant claims which can otherwise be asserted. [72] The refusal to certify this action will not, of course, prevent individual plaintiffs from proceeding with their respective claims if so advised. In other words, they are not “driven from the judgment seat”. [73] In conclusion, a class action is not the preferable procedure in the circumstances of this case. The issues of discoverability relating to each individual plaintiff overwhelms any common issues. [74] The application is therefore dismissed. Crown counsel advised that the Crown is not seeking an order for costs.
Canadian veterans of the Korean War or World War II applied for certification of an action under the Class Actions Act. The plaintiffs claimed they and their dependents were treated differently than non-native war veterans by requiring benefits to be administered by the Department of Indian Affairs or through Indian agents and claimed damages for loss of benefits based on systemic negligence, breach of trust, breach of fiduciary duty and unjust enrichment. They alleged officials and Indian agents were negligent in carrying out their duties to inform the plaintiffs of their right to receive full and complete benefits and in some case agents misappropriated benefits. HELD: The application was dismissed. A class action is not the preferable procedure in the circumstances. The issue of discoverability relating to each plaintiff overwhelms any common issues. It is not possible to determine issues of discoverability in any global fashion. It will be necessary to have an inquiry into the state of mind of each individual plaintiff over a period of 40 years. Such a class action would be completely unmanageable and certification would result in a multitude of individual trials, which would completely override any advantage that might be derived from a trial of a few potential common issues. A finding that there was a trust relationship between veterans and the Crown as to the administration of benefits would not determine whether there was a breach of any such relationship without an inquiry into the facts and circumstances of each veteran on a case by case basis. Aside from limitation problems, individual determinations will be required in order to ascertain whether the individual has a cause of action including for breach of a fiduciary duty, if one existed, to properly inform each proposed plaintiff, what information each received, whether he understood the information and made an informed decision. The Crown did not seek costs.