QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2007 SKQB 406 Date: 2007 11 06 Docket: Q.B.G. 2036/2005 Judicial Centre: Regina BETWEEN: ELIZABETH AUBICHON, MELVINA AUBICHON, THERESE AUBICHON, TERRY BEKKATLA, THOMAS BEKKATLA, VICTOR BOUVIER, AMBROSE CAISSE, MARTIN CHARTIER, VITAL VICTOR CORRIGAL, RICHARD DESJARDIN, PAUL DESJARLAIS, MARIE ANTOINETTE DIACHINSKY, ARTHUR DUROCHER, LOUISE DUROCHER, JOSEPH MARIUS FAVEL, FRANCINE GUETRE, RENE GUETRE, RONNE GUETRE, SARAH HANTERMAN, JOSEPH JANVIER, RENE JANVIER, GEORGE LALIBERTE, RONALD LAPRISE, NORMAN JOSEPH LARIVIERE, THERESA MALBOUEF, ELIZABETH MAURICE, JAMES MAURICE, EMERY McCALLUM, MARIE ANGE McCALLUM, MARY ROSE McCALLUM, CHRISTOPHER McKAY, ERIC McKAY, ALAN MERASTY, FELIX MERASTY, BRENDA MONTGRAND, BRENDA MONTGRAND, DONALD MORIN, FLOYD MORIN, JOHN HENRY MORIN, PETER MORIN, RODERICK MORIN, HERB NORTON, MORLEY NORTON, FRANCIS JOSEPH PETITE, NORMAN THOMAS ROY, LORRAINE SUTHERLAND, GARY SYLVESTRE, MATILDA WAGNER, ALICE WOODS, as representatives and claimants on behalf of all Metis individuals and person who are not status Indians who attended Ile la Crosse, including but not limited to all clients of the proposed Class Counsel, and the John and Jane Does named herein, and such further John and Jane Does and other individuals belonging to the proposed class, including JOHN DOE I, JANE DOE I, JOHN DOE II, JANE DOE II, JOHN DOE III, JANE DOE III, JOHN DOE IV, JANE DOE IV, JOHN DOE V, JANE DOE V, JOHN DOE VI, JANE DOE VI, JOHN DOE VII, JANE DOE VII, JOHN DOE VIII, JANE DOE VIII, JOHN DOE IX, JANE DOE IX, JOHN DOE X, JANE DOE X, JOHN DONE XI JANE DOE XI, JOHN DOE XII, JANE DOE XII, JOHN DOE XIII, JANE DOE XIII, being Jane and John Doe who attended Ile La Crosse and resides in each Canadian province and territory, and other John and Jane Does Individuals, Estates, Next-of-Kin and Entities to be added PLAINTIFFS(APPLICANTS) and ATTORNEY GENERAL OF CANADA and THE GOVERNMENT OF SASKATCHEWAN DEFENDANTS (RESPONDENTS) Counsel: E.F. Anthony Merchant, Q.C. for the plaintiffs Dale K. Beck for the Government of Saskatchewan Scott R. Moffat for the Attorney General of Canada FIAT BALL J. November 6, 2007 [1] The plaintiffs are former students of school at Ile La Crosse, Saskatchewan. They commenced this proposed class action against the Attorney General of Canada on December 9, 2005. On January 20, 2007, plaintiffs’ counsel filed an amended statement of claim which added the Government of Saskatchewan (herein “Saskatchewan”) as a second defendant. Saskatchewan then applied for an order disallowing the amendments to the statement of claim. THE PLAINTIFFS’ CLAIM [2] The plaintiffs claim to represent “All Metis persons, status Indians, and persons who are not status Indians who attended Ile la Crosse”. The first 74 paragraphs of the amended statement of claim lists 47 plaintiffs by name plus another 25 “John Does” and “Jane Does”. All 72 of those individuals are alleged to have been residents or students at Ile la Crosse from as early as 1937 to as late as 1979. [3] The original claim asserts that the plaintiffs are members of proposed “Student Class”. The amended claim adds the following paragraphs 76(b), 76(c) and 76(d) to the initial pleading: Sibling Class 76(b) The sibling class includes all of the parents and siblings of the student class members. Family Class 76(c) The family class includes the spouses and children of the student class members. 76(d) The Plaintiffs anticipate that pursuant to decision of certification Judge they will be divided into subclasses based on the types of abuse they suffered. By means of amendments to the statement of claim it is alleged that the Sibling Class and Family Class members suffered loss of culture, language and traditional ways of living. There is no claim that any of the plaintiffs are members of either the proposed Sibling Class or the proposed Family Class, or that the plaintiffs represent the members of those proposed classes. [4] The amended claim alleges that the first defendant (referred to in the pleadings as “the Government”) and the added defendant (referred to as “Saskatchewan”) funded and were responsible for Ile la Crosse school in supervisory and oversight capacity. Paragraph 95 of the amended claim states that the defendants are liable to the plaintiffs, inter alia, for: physical and sexual abuse visited upon them; cultural abuse; failing to provide them with an adequate education; and holding them against their will and the will of their parents. [5] Paragraph 105(a) of the amended statement of claim states: 105(a) The Plaintiffs specifically plead the following causes of action against the Defendants: (a) Systemic negligence in failing to adequately protect the Plaintiffs from physical and sexual abuse and loss of culture; (b) Breach of fiduciary duty resulting in injury to the student class; (c) Breach of fiduciary duty resulting in injury to the sibling and family classes; (d) Breach of non-delegable duty to protect the Plaintiffs; (e) Unlawful confinement; (f) Breach of Charter rights of freedom of expression and freedom of religion; (g) Vicarious liability of the Defendants for the tortuous[sic] acts of its servants and agents; (h) Breach of aboriginal rights. [6] Paragraph 133 of the amended statement of claim indicates that the plaintiffs were alive to the possibility that some of their claims may be statute barred. Paragraph 133 states: 133. In the event that the Defendants attempt to rely upon the Public Officers Protection Act (now repealed) then the Plaintiffs plead s. 2(1)(b) of that Act and ask this Honourable Court to extend the time for commencing this action on nunc pro tunc basis. APPLICATIONS AND SUBMISSIONS [7] The delivery of the plaintiffs’ amended claim resulted in back and forth series of submissions which, when unravelled, can be summarized as follows: • Saskatchewan applied pursuant to Queen’s Bench Rule 168 for an order disallowing the amendments which added Saskatchewan as a defendant, arguing that s. 20 of The Limitations Act, S.S. 2004, c. L-16.1 requires the plaintiffs to obtain leave of the court before adding a new defendant to an existing action. Counsel for the plaintiffs responded that the amendments to the claim were permitted by Queen’s Bench Rule 66 and that leave of the court under s. 20 of The Limitations Act was not required. In the alternative, counsel for the plaintiffs submitted that if leave to add Saskatchewan as defendant was required by s. 20 of The Limitations Act, then the court should grant such leave. Saskatchewan opposed the plaintiffs request for leave to amend the claim, arguing that the portion of the plaintiffs’ claim based in negligence is barred by the limitation period in The Public Officers Protection Act, R.S.S. 1978, c. P-40 (repealed by The Limitations Act effective May 1, 2005), and that other portions of the claim should be struck out as disclosing no reasonable cause of action or constituting an abuse of process. Counsel for the plaintiffs responded that the limitation period set forth in s. 2(1) of in The Public Officers Protection Act (“POPA”) does not bar the claim in negligence against Saskatchewan, or, if it does that, an order nunc pro tunc should be granted extending the time in which the plaintiffs may bring their action. Counsel for Saskatchewan replied that if the plaintiffs were applying to extend the time for bringing an action under the POPA, then their application must be dismissed because the plaintiffs gave no explanation for their delay in commencing their action against Saskatchewan and filed no evidence to support an extension. ISSUES [8] Although both parties ask the court to make a number of legal and factual determinations and orders, on the material filed there is only one application capable of being heard and determined: Saskatchewan applies pursuant to Queen’s Bench Rule 168 for an order disallowing the amendments to the plaintiffs’ statement of claim which added Saskatchewan as a defendant. That application is based on the proposition that s. 20 of The Limitations Act applies and requires the plaintiffs to obtain leave to amend the claim by adding Saskatchewan as a new party. [9] It will be helpful to identify issues that, although alluded to by the parties in argument, are not raised by Saskatchewan’s application and will not be addressed in this fiat. Saskatchewan has not applied for an order striking some or all of the plaintiffs claims on the basis that the pleadings disclose no reasonable cause of action. Although in argument Saskatchewan references s. 2(1) of the POPA as potential bar to unspecified portions of the plaintiffs’ claims based in negligence, its motion is based on the proposition that s. 20 of The Limitations Act applies to the amendments. Saskatchewan acknowledges that there is no limitation period for claims of physical or sexual assault within the purview of s. 16 of The Limitations Act, and offers little guidance as to which of the remaining claims should be struck out on the basis that they are statute barred. [10] Counsel for the plaintiffs has not filed an application for an order under s. of the POPA allowing an action in negligence to be brought against either of the defendants and has not offered any evidentiary or legal support for such an order. Neither the plaintiffs’ reference to the POPA in paragraph 33 of the statement of claim, nor the spontaneous request for an order under the POPA made by plaintiffs’ counsel during argument, are substitutes for an application brought on proper notice and supported by relevant evidence. [11] In summary, number of issues were raised in argument but not placed before the court in form and substance that could fairly be considered and decided. The only issues raised by the motion and to be dealt with in this fiat will be identified as: (a) Are the plaintiffs required by s. 20 of The Limitations Act to apply for leave to add Saskatchewan as defendant in this action? (b) If the plaintiffs are required to apply for leave to add Saskatchewan as defendant, should such leave be granted on the pleadings and the material filed? ANALYSIS Rules of Court [12] Counsel for the plaintiffs submits that Queen’s Bench Rules of Court Rule 166 confers a right to add claims and/or defendants to an original claim, without leave, at any time prior to the close of pleadings. Rule 166 states: 166 party may amend any pleading filed by him in proceeding once, without leave, at any time prior to the close of pleadings, and at any other time with the written consent of all the parties. [13] However, Rule 166 must be read in conjunction with Rule 168, which states: 168 Where party has amended pleading without leave of the court, the other party may, within eight days after the service on him of the amended pleading, apply to the court to disallow the amendment or any part thereof or for the imposition of terms, and the court may grant such order as may seem just. [14] It is apparent that where leave to amend is not obtained under Rule 166, the other party may apply to the court to disallow the amendment. More substantively, both Rules (and all Rules of Court) are subject to statutory provisions. If claim is barred by statutory time limitation period, an amendment pursuant to Rule 166 will not, in itself, transform the claim into viable one. Statutory Limitation Periods [15] Accepting the allegations in the plaintiffs’ pleadings as true for the purposes of this motion, The Limitations Act contains number of provisions which are prima facie relevant. The plaintiffs (and all members of the proposed student class) are alleged to have been residents or students at Ile la Crosse from as early as 1937 to as late as 1979. The claims, therefore, arose during those years. [16] Section 3(4) of The Limitations Act provides: 3(4) This Act does not apply to claim that is subject to limitation provision in another Act or regulation if that Actor regulation states that the limitation provision applies notwithstanding this Act. [17] Section of The Limitations Act establishes basic two year time limitation period which operates from the day on which claim is discovered and is subject to other provisions of the Act. [18] Section of The Limitations Act contains the following rules relating to discoverability: 6(1) Unless otherwise provided in this Act and subject to subsection (2), claim is discovered on the day on which the claimant first knew or in the circumstances ought to have known: (a) that the injury, loss or damage had occurred; (b) that the injury, loss or damage appeared to have been caused by or contributed to by an act or omission that is the subject of the claim; (c) that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and (d) that, having regard to the nature of the injury, loss or damage, proceeding would be an appropriate means to seek to remedy it. (2) claimant is presumed to have known of the matters mentioned in clauses (1)(a) to (d) on the day on which the act or omission on which the claim is based took place, unless the contrary is proved. [19] Section of The Limitations Act bars the commencement of any claim to which limitation period applies after 15 years from the day on which the act or omission on which the claim is based took place. [20] No limitation period applies with respect to claims within the scope of s. 16 of The Limitations Act, which provides: 16(1) There is no limitation period with respect to claim in the nature of trespass to the person, assault or battery if: (a) the claim is based on misconduct of sexual nature; or (b) at the time of the injury on which the claim is based: (ii) the claimant was in relationship of financial, emotional, physical or other dependency with one of the parties who caused the injury. (2) Subsection (1) applies whether or not the claimant’s right to commence the proceeding was at any time governed by limitation period pursuant to the former Act or any other Act. [21] Sections 19 and 20 of The Limitations Act are fundamental to Saskatchewan’s application. Section 19 applies where limitation period expires before proceeding is commenced: 19 If, after the commencement of proceeding, it is established that limitation period applicable to the clam had expired before the commencement of the proceeding, the claim is barred and the proceeding shall not be maintained. Section 20 applies where the limitation period expires after the proceeding is commenced and before new claim is asserted or new party is added: 20 Notwithstanding the expiry of limitation period after the commencement of proceeding, judge may allow an amendment to the pleadings that asserts new claim or adds or substitutes parties if: (a) the claim asserted by the amendment, or by or against the new party, arises out of the same transaction or occurrence as the original claim; and (b) the judge is satisfied that no party will suffer actual prejudice as result of the amendment. [22] The statutory predecessor to s. 20 of The Limitations Act was s. 30 of The Queen’s Bench Act, 1998, S.S. 1998, c. Q-1.01 which stated: 30 Notwithstanding the expiry of limitation period after the commencement of an action, judge may allow an amendment to the pleadings that asserts new claim or adds or substitutes parties, if: (a) the claim asserted by the amendment, or by or against the new party, arises out of the same transaction or occurrence as the original claim; and (b) the judge is satisfied that no party will suffer actual prejudice as result of the amendment. The only difference between the wording of s. 20 of The Limitations Act and the predecessor s. 30 in The Queen’s Bench Act, 1998, is that the former applies to “a proceeding” whereas the latter applied to “an action”. [23] Section 20 of The Limitations Act must be interpreted in manner which is compatible with the other provisions of the Act. If s. 19 of the Act precludes the court from extending the time for bringing an action where the original claim is statute barred, an “add on” claim arising out of the same transaction or occurrence is similarly statute barred. By its clear and literal meaning, s. 20 enables the court to extend the time for bringing new claim in an existing action only where limitation period expires after the original claim is commenced. [24] In Stoddard v. Watson, 1993 CanLII 59 (SCC), [1993] S.C.R. 1069 the Supreme Court of Canada confirmed that court has discretion to allow statement of claim to be amended to add new plaintiff after limitation period expires. However, for the purposes of statute of limitations, the new plaintiffs’ claim must be assessed as of the date of the commencement of the original action. If the original claim was filed too late to be brought by the new plaintiff, the later “add on” claim will also be barred. The principle is the same whether the proposed amendment seeks to add new plaintiff or, as in this case, new defendant. [25] Accordingly, both the original claim and the amended claim which added Saskatchewan as new defendant are identical from the perspective of limitation periods. Section 19 of The Limitations Act applies to both. This means that, with certain exceptions, the claims are prima facie barred by the ultimate 15 year time limitation period set forth in s. of The Limitations Act. The exceptions include claims within the purview of s. 16 of The Limitations Act to which no limitation applies; claims to which (as stated in s. 3(4) of The Limitations Act) limitation provision in another act or regulation applies; and claims which the court may determine are subject to an extended time limitation period or should be allowed to proceed. [26] Where limitation period is raised against plaintiff, s. 18 of The Limitations Act places the onus on the plaintiff to prove that the limitation period had not expired, or that no limitation applies to the claim: 18 If, in proceeding, limitation period is raised against claimant, the claimant has the burden of proving that: (a) the limitation period has not expired; or (b) there is no limitation period that applies to the claim. [27] With reference to limitation periods in another Act, paragraph 133 of the claim indicates that the plaintiffs were aware of the time limitation period in s. 2(1) of the POPA when their action as commenced. Section 2(1) of the POPA (which was repealed by The Limitations Act and replaced by other provisions effective May, 2005) states: 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. [28] If the plaintiffs wish to apply on proper notice and with supporting evidence for orders determining that their claims are not statute barred, or that their claims should be allowed to proceed, they may do so. If they do not, they may spend considerable time and money attempting to litigate statute barred claims. [29] Similarly, Saskatchewan’s options for raising applicable time limitation periods and/or striking out pleadings include, for example, an application to strike out some or all of the plaintiffs’ claims under Rule 173, or an application to determine point of law under Rule 188. (See Popowich Saskatchewan 2001 SKQB 148 (CanLII); [2001] W.W.R. 308 (Sask. Q.B.)). CONCLUSION [30] This application is based on the proposition that s. 20 of The Limitations Act applies to the plaintiffs’ amended claim. However, s. 20 does not apply because no limitation period expired after the original claim was commenced and before the claim was amended to add Saskatchewan as a defendant. Section 19 of The Limitations Act applies to the original and the amended claims. The application is therefore dismissed. [31] Accepting the pleadings as true, a number of the plaintiffs’ claims are prima facie statute barred. The plaintiffs may choose to apply for orders determining that no time limitation period applies or allowing the claims to be brought. Alternately, the defendants may apply for orders determining that some or all of the claims are statute barred. In either case, the applications must satisfy the applicable legislation and the Rules of Court.
FIAT: The plaintiffs are former students of a school at Ile a La Crosse, Saskatchewan. They commenced this proposed class action against the Attorney General of Canada (the Government) in December 2005. In January 2007 the plaintiffs' counsel filed an amended statement of claim which added the Government of Saskatchewan (Saskatchewan) as a second defendant. Saskatchewan applies for an order pursuant to Rule 166 and 168 of the Queen's Bench Rules disallowing the amendments to the statement of claim. The amended claim alleges that the Government and Saskatchewan funded and were responsible for the school in a supervisory and oversight capacity and that they are liable to the plaintiffs for physical and sexual abuse, loss of language and culture, failing to provide an adequate education and holding them against their will and the will of their parents. HELD: 1) This application is based on the proposition that s. 20 of The Limitations Act applies to the plaintiffs' amended claim. However, s. 20 does not apply because no limitation period expired after the original claim was commenced and before the claim was amended to add Saskatchewan as a defendant. Section 19 of The Limitations Act applies to the original and the amended claims. The application is dismissed. 2) Accepting the pleadings as true, a number of the plaintiffs' claims are prima facie statute-barred. The plaintiff may choose to apply for orders determining that no time limitation period applies or allowing the claims to be brought. Alternatively, the defendants may apply for orders determining that some or all of the claims are statute-barred. In either case, the applications must satisfy the applicable legislation and the Rules of Court.