J. 1999 SKQB 17 Q.B.G. A.D. 1997 No. 2579 J.C. R. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF REGINA [W.P.] PLAINTIFF(RESPONDENT) and ATTORNEY GENERAL OF CANADA DEFENDANT(APPLICANT) and WILLIAM STARR and G[…] FIRST NATION PROPOSED THIRD PARTY L.B. LeBlanc, Q.C. for [W.P.] J. Gunvaldsen-Klaassen and T.G.H. Kristiansen for Attorney General of Canada M.D. Rasmussen, Q.C. for G[…] First Nation JUDGMENT MAURICE J. August 23, 1999 [1] The plaintiff alleges that he was sexually assaulted by William Starr ("Starr") while he was student at, and Starr was the administrator of, residential school. The plaintiff alleges that the applicant, the Attorney General of Canada, as the employer of Starr, was responsible for his conduct. The applicant alleges that the G[…] First Nation was responsible for Starr\'s conduct. It applies to join the G[…] First Nation as a third party to the action brought by the plaintiff against it and Starr; so that it can claim contribution or indemnity from it — if the applicant is found liable to the plaintiff. [2] The applicant requires leave of this Court under s. 7 of The Contributory Negligence Act, R.S.S. 1978, c. C-31, and Rule 107A(c) of the Rules of Court. The Rules were amended in 1981. In Morrow et al. v. Regina (City) et al. (1989), 1989 CanLII 4713 (SK QB), 79 Sask. R. 98 (Sask. Q.B.) at p. 100, Halvorson J., explained the underlining philosophy of the amended Rules as follows: [10] [T]here is the underlying philosophy of the new Rules to expedite the joinder of third parties; to avoid multiplicity of actions; and, as well, in my opinion, to minimize the circumstances where third party claim may be set aside because of prejudice to the plaintiff. This observation becomes evident from review of the Rules. [3] Halvorson J. was of view applications for leave under s. of The Contributory Negligence Act and the Rules of Court should be treated the same. At p. 100 he said: [17] To attain uniformity, it seems reasonable on an application for leave under s. 7, to encourage the joinder of third parties thereby averting duplication in law suits, and to minimize delay and prejudice to the plaintiff by appropriate directions rather than refusal of leave. In so doing, specific third party practice under s. would be in tune with general third party practice under the Rules. [4] The plaintiff and the proposed third party argue that the applicant has not established prima facie claim for contribution or indemnity. In Hauer v. MacDonald, James Richardson Sons et al. and MacDonald (1965), 1965 CanLII 438 (SK CA), 51 W.W.R. (N.S.) 166, the Saskatchewan Court of Appeal referred to third party proceedings as being procedural in nature. The Court of Appeal held it was not necessary to assess evidence or go into possible defences at this stage. And while the court was of the view there must be some material by which prima facie claim is shown, the third party claim and the pleadings on file could well be sufficient for this purpose. In this application, the proposed third party claim on file and the other pleadings allege material facts that, if proven, would allow the applicant to obtain the relief it seeks from the proposed third party. At this stage the pleadings and proposed pleadings must be taken at face value; there is no evidentiary requirement to establish that they are correct. I am of the opinion, the low threshold for the establishment of a prima facie claim, as stipulated by the Court of Appeal, has been met by the applicant. [5] The plaintiff claims he will suffer prejudice and experience delay if the third party claim is allowed to proceed. While there is no doubt that an application can be dismissed on these grounds: See Arnusch v. Board of Education of Regina School District Division No. (1996), 1996 CanLII 6663 (SK QB), 151 Sask. R. 136 (Sask. Q.B.) and Amalco Credit Service Ltd. v. Time Jet Inc. et al. (1995), 1995 CanLII 5622 (SK QB), 132 Sask. R. 154 (Sask. Q.B.), the delay must be inordinate and the prejudice more than mere inconvenience; otherwise, prejudice or delay should be alleviated by directions (whether they are in the form of an order for costs or an order setting out time schedule for the completion of certain steps in the action) as opposed to dismissal of the application: Morrow, supra. [6] There may well be some delay to the plaintiff by allowing the third party proceedings, but it will not be inordinate. pre-trial was ordered by consent of the parties. It is obvious from the material that the parties were not ready for trial. They had not exchanged documents, and the plaintiff gave notice of his intention to amend his statement of claim after the consent order was granted. It was contemplated by the parties that if settlement was not achieved, further steps would be taken the parties agreed through correspondence that: "Should settlement not be reached at pre-trial, either party may take any further necessary steps that such party deems necessary to prepare for trial...". The plaintiff's claim dates back to 1984; it can hardly be said any additional delay, due to third party proceedings, must necessarily result in dismissal of the application. [7] Nor has the plaintiff established any prejudice. There is no indication that the inherent delay in allowing third party proceedings would result in the disappearance of any evidence, or that extra costs will be incurred by the plaintiff in redoing steps already completed or that the process will become so cumbersome and complicated as to undermine the plaintiff's claim. [8] The proposed third party claims it will suffer prejudice if it is joined as third party. There are many claims arising from alleged abuse at the residential school which could result in applications to join it as third party. The third party suggests it will incur large costs in defending these actions. It suggests it would be cost efficient and simpler to have the applicant sue it in one action to determine its liability, if any, to the applicant. Unfortunately, this is not solution to the problem. Each individual action brought by former student at the residential school is different in nature. It may cover different time period and/or different employee so that the extent of the third party's involvement will vary from case to case. The third party's liability, if any, to the applicant will have to be determined on case by case basis. [9] understand that pre-trial management judge is managing this case and other similar cases onto trial. schedule for the completion of the steps necessary to bring this matter to trial can be worked out with his assistance or an application can be made to court in the absence of agreement on time limits. [10] The application for an order granting the applicant leave to file a third party notice in the within action, in the form as filed with the court, is granted. The applicant shall have its costs of the application, to be taxed, against the plaintiff and the proposed third party.
The plaintiff alleged he was sexually assaulted and that Attorney General of Canada as employer of the administrator of the residential school was also responsible. The defendant alleged the First Nation was responsible for the administrator's conduct and applied to join the First Nation as a third party so that contribution or indemnity could be claimed. The applicant required leave under s.7 of the Contributory Negligence Act and Rule 107A(c) of the Rules of Court. HELD: Leave was granted to file a third party notice. 1)The low threshold for the establishment of a prima facie claim was met. 2)The delay would not be inordinate. The plaintiff's claim dated back to 1984. The parties were not ready for trial. No prejudice was established.  3)The third party's liability, if any, will have to be determined on a case by case basis. Each individual action brought by a former student at the residential school is different in nature. 4)The applicant was granted costs of the application against the plaintiff and the First Nation.