COURT OF APPEAL FOR ONTARIO

CITATION: Cavanaugh v. Grenville Christian College, 2013 ONCA 139

DATE: 20130308

DOCKET: C55627

O’Connor A.C.J.O., Doherty and Blair JJ.A.*

BETWEEN

Lisa Cavanaugh, Andrew Hale-Byrne, Richard Van Dusen, Margaret Granger and Tim Blacklock

Appellants

and

Grenville Christian College, the Incorporated Synod of the Diocese of Ontario, Charles Farnsworth, Betty Farnsworth, Judy Hay the Executrix for the Estate of J. Alastair Haig and Mary Haig

Respondents

Kirk Baert, Russell Raikes, Sean O’Donnell, Michael Saelhof, Loretta Merritt and Christopher Haber, for the appellants

Steven Steiber and Linda Phillips-Smith, for the respondent the Incorporated Synod of the Diocese of Ontario

Geoffrey Adair and Alexa Suzenko, for the respondents Grenville Christian College, Charles Farnsworth and Judy Hay the Executrix for the Estate of J. Alastair Haig

Heard: December 20, 2012

On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated May 23, 2012, with reasons reported at 2012 ONSC 2995.

Doherty J.A.:

I

overview

[1] The appellants brought a motion to certify their action against the respondents as a class proceeding pursuant to the Class Proceedings Act 1992, S.O. 1992, c. 6 (“CPA”). The motion judge refused to certify the action against any of the respondents. In respect of one of the respondents, the Incorporated Synod of the Diocese of Ontario (the “Diocese”), the motion judge held that the claim as framed did not reveal a cause of action. He ordered the action against the Diocese “immediately dismissed”. With respect to the other respondents, the motion judge found that the appellants failed to show that a class proceeding was the preferable procedure and dismissed the motion to certify with leave to apply under s. 7 of the CPA to continue the proceedings in an amended form.

[2] The appellants appealed from both parts of the motion judge’s order.

[3] Appellate jurisdiction in proceedings under the CPA is divided between the Court of Appeal and the Divisional Court. Some appeals go to the Divisional Court under s. 30 of the CPA and others go to this court. The general appeal power provisions in the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) are also relevant when the specific provisions of s. 30 have no application.

[4] All parties to this appeal agreed that the appeal from the order refusing to certify the proceedings as against the respondents other than the Diocese was properly to the Divisional Court under s. 30(1) of the CPA. The parties also agreed, however, that this court did have jurisdiction under s. 6(1)(b) of the CJA to hear the appeal from the order dismissing the claim against the Diocese. The parties submitted that the court should exercise its discretion under s. 6(2) of the CJA to join the appeal against the other respondents with the appeal against the Diocese.

[5] After hearing oral argument on the jurisdictional issues, the court reserved on the question of whether it had jurisdiction to hear the appeal from the order dismissing the claim against the Diocese. The court further indicated that, assuming it did have jurisdiction to hear that appeal, it would not exercise its jurisdiction under s. 6(2) to hear the appeal against the refusal to certify the claim against the other respondents. The court ordered that appeal transferred to the Divisional Court. The court then heard the merits of the appeal from the order dismissing the claim against the Diocese and reserved judgment.

[6] For the reasons that follow, I would hold that this court does have jurisdiction to hear the appeal from the order dismissing the action against the Diocese. I would dismiss that appeal.

[7] I will also, in accordance with the court’s endorsement during the oral hearing, provide reasons for declining to exercise our jurisdiction in favour of hearing the appeal from the refusal to certify the claim against the other respondents.

II

the proceedings in the superior court

[8] Lisa Cavanaugh, Andrew Hale-Byrne, Richard Van Dusen, Margaret Granger and Tim Blacklock (the “appellants”) were all students at Grenville Christian College, a private religious school in Brockville, Ontario. The school is no longer in operation. They allege that they and other residential students at the school were physically and psychologically abused over a period spanning several decades. They brought actions in negligence, assault, battery, intentional infliction of mental suffering and breach of fiduciary duty against Grenville Christian College, Charles Farnsworth (“Father Farnsworth”), the estate of J. Alastair Haig (“Father Haig”) and the Diocese (collectively the “respondents”).[^1] Both Father Farnsworth and Father Haig were headmasters at the school. The Diocese is responsible for the administration of Anglican churches and related activities in the Brockville area.

[9] The appellants moved to certify the action under the CPA as a class proceeding. The motion judge dismissed the motion against all the respondents. He did so, however, for two quite different reasons and he made two very different orders. He refused to certify the action against the Diocese because the claim as pleaded did not allege a cause of action as required under s. 5(1)(a) of the CPA. In contrast, he refused to certify the claim against the other respondents because in his view the appellants had not demonstrated that a class proceeding was “the preferable procedure” as required under s. 5(1)(d) of the CPA.

[10] The different reasons for refusing to certify the action against the Diocese compared with the other respondents are reflected in the terms of the order. In para. 1 of his order, the motion judge “immediately dismissed the action” against the Diocese. In paras. 2 and 3, he dismissed the appellants’ application for certification against the other respondents, but allowed the appellants to apply for an order under s. 7 of the CPA for a continuation of the action.

III

the appeal against the diocese

A. THE JURISDICTIONAL ISSUE

[11] Appeals are creatures of statute: see R. v. Meltzer, 1989 CanLII 68 (SCC), [1989] 1 S.C.R. 1764, at p. 1773; Canadian Broadcasting Corporation v. Ontario, 2011 ONCA 624, 107 O.R. (3d) 161, at para. 16. This court can hear only appeals authorized by statute.

[12] In civil matters, most appeals are brought to this court under s. 6(1)(b) of the CJA. Section 6(1)(b) provides that:

An appeal lies to the Court of Appeal from, a final order of a judge of the Superior Court of Justice, except an order referred to in clause 19(1)(a) or an order from which an appeal lies to the Divisional Court under another Act[.]

[13] The order dismissing the action against the Diocese is a final order. It is not an order “referred to in clause 19(1)(a)”. Consequently, an appeal lies to this court from the order dismissing the action against the Diocese unless “an appeal lies to the Divisional Court under another Act”. The CPA is the only other Act of possible application.

[14] Section 30 of the CPA contains various appeal provisions governing appeals in the class action context. Under s. 30, most appeals go to the Divisional Court, but some come to this court. Sections 30(1) and (2) specifically address orders made granting or refusing a motion for certification as a class proceeding. For present purposes, s. 30(1) is relevant. It provides in part:

A party may appeal to the Divisional Court from an order refusing to certify a proceeding as a class proceeding and from an order decertifying a proceeding.

[15] A motion judge must refuse certification unless the statutory preconditions to certification set out in s. 5(1) of the CPA are met. Section 5(1) provides that:

The court shall certify a class proceeding on a motion under section 2, 3 or 4 if,

(a) the pleadings or the notice of application discloses a cause of action;

(b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;

(c) the claims or defences of the class members raise common issues;

(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and

(e) there is a representative plaintiff or defendant who,

(i) would fairly and adequately represent the interests of the class,

(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members. [Emphasis added.]

[16] The motion judge refused to certify the action against the respondents other than the Diocese because the appellants failed to show that a class proceeding was “the preferable procedure” as required by s. 5(1)(d). His order dismissing the motion for certification against these respondents is clearly appealable to the Divisional Court under s. 30(1) of the CPA.

[17] With respect to the Diocese, the motion judge also refused to certify the action, albeit because the claim as pleaded did not reveal a cause of action as required by s. 5(1)(a). If the motion judge’s order in respect of the Diocese is properly characterized as a refusal to certify a class proceeding, the appeal lies to the Divisional Court. However, the motion judge’s order does much more than simply refuse to certify the action as a class proceeding against the Diocese. The order dismisses the claim “immediately”. The motion judge’s order goes well beyond a determination that the Diocese will not be part of any class proceeding. Under that order, the appellants are barred not only from proceeding against the Diocese by way of a class action proceeding, but are precluded from proceeding against the Diocese entirely. If that order stands, the appellants’ action against the Diocese is over.

[18] I read nothing in the remedial powers available on a motion for certification under the CPA that empowers a judge to dismiss the action in its entirety. To the extent that the CPA speaks to the inadequacy of pleadings, s. 7 authorizes the judge who refuses to certify the proceeding as a class proceeding to order the amendment of the pleadings or to make any other order deemed appropriate. Section 7 does not authorize the motion judge to dismiss the action. In my view, the motion judge’s order dismissing the action against the Diocese could not have had its genesis in the powers granted in the CPA to judges hearing a motion for certification.

[19] A Superior Court has the inherent power to dismiss an action when the claim does not disclose a reasonable cause of action: see Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, at p. 968. That power is most commonly exercised on a motion brought under Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to strike a pleading on the basis that it does not disclose a reasonable cause of action. The Diocese could have brought a motion under Rule 21.01(1)(b) and joined that motion with the appellants’ motion for certification. Had the Diocese followed that procedure, the motion judge would clearly have had the power to dismiss the action against the Diocese under Rule 21.01(1)(b). Any appeal from that order would have been to this court pursuant to s. 6(1)(b) of the CJA.

[20] In Menegon v. Philip Services Corp. (2001), 2001 CanLII 28396 (ON SC), 23 B.L.R. (3d) 151 (Ont. S.C.), aff’d 2003 CanLII 36468 (ON CA), 167 O.A.C. 277 (C.A.), the defendant did bring a motion under Rule 21 to dismiss for failure to disclose a cause of action. That motion was heard with the certification motion and appealed to the Divisional Court: Menegon v. Philip Services Corp.(2002), 155 O.A.C. 365 (Div. Ct.). In holding that the Divisional Court had no jurisdiction to hear the appeal from the order dismissing the action for failure to disclose a cause of action, Farley J. stated, at p. 366:

Although an appeal from a refusal to certify an action as a class proceeding is to the Divisional Court, the refusal here was based on the failure of Menegon in his statement of claim to disclose a cause of action. However, that same failure is the foundation of the determination of Gans J., to dismiss the action and refuse leave to amend. The action having been dismissed, the question of its certification as a class proceeding is moot; in order to have certification of the action, the judgment dismissing the action would have to be put aside. The dismissal of the action, as discussed, is a final order, an appeal from which only lies to the Court of Appeal in these circumstances of the thrust of the claim being for more than $25,000….[^2] [Emphasis added.]

[21] This court has also heard appeals from orders dismissing claims made under Rule 21.01(1)(b) when that motion was brought in conjunction with a motion for certification under the CPA: see e.g., Drady v. Canada (Minister of Health), 2008 ONCA 659, 270 O.A.C. 1; McCracken v. Canadian National Railway Co., 2012 ONCA 445, 111 O.R. (3d) 745. The jurisdiction of this court to hear the appeals was not raised in either case.[^3]

[22] I do not think that the absence of a Rule 21.01(1)(b) motion is determinative on the jurisdiction question. The appropriate appellate forum should be determined by the substance of the order made. The fact that a motion judge dismissed an action in the absence of a motion under Rule 21.01(1)(b) may give rise to procedural fairness arguments on appeal. Those arguments must, however, be made in the appropriate forum.

[23] The language of the motion judge’s order could not be clearer. The action against the Diocese was “immediately dismissed”. If there is no power in s. 30 of the CPA to appeal the dismissal of the action against the Diocese to the Divisional Court, then under the terms of s. 6(1)(b) of the CJA, the appeal is to this court.

[24] The provisions in s. 30 of the CPA which direct appeals to the Divisional Court refer to “an order refusing to certify a proceeding” (s. 30(1)), “an order certifying a proceeding as a class proceeding” (s. 30(2)), and orders “determining an individual claim” (s. 30(6)-(11)). None of the provisions that create appellate jurisdiction in the Divisional Court under s. 30 refer to orders dismissing an action. A plain reading of s. 30 of the CPA does not give the Divisional Court the jurisdiction to hear appeals from orders dismissing claims even though the order is made in the context of a class proceeding motion. Instead, s. 6(1)(b) of the CJA gives this court jurisdiction over this appeal.

[25] My reading of the interaction between the rights of appeal peculiar to class proceedings created in s. 30 of the CPA and the more general rights of appeal in s. 6(1)(b) of the CJA is reinforced by the analysis in two cases in which this court has addressed that relationship. Neither case, however, deals with the problem raised here.

[26] In Dabbs v. Sun Life Assurance Company of Canada (1998), 1998 CanLII 7165 (ON CA), 41 O.R. (3d) 97 (C.A.), a member of a class who was not a party to the class proceeding sought to appeal an order certifying an action as a class proceeding and approving a settlement agreement entered into between the representative plaintiff and the defendants. The CPA limited any right of appeal to a party to the proceeding. In holding that the appellant could not rely on s. 6(1)(b) of the CJA to give him a right of appeal, this court stated, at p. 102:

The intent of the Act [CPA] is clear that the rights of appeal to this court are conferred on parties, not class members. A class member requires leave under s. 30(5) to act as a representative party for the purpose of bringing an appeal under s. 30(3). If … a class member has a right of appeal under s. 6(1)(b) of the Courts of Justice Act, that intent would be defeated. [Emphasis added.]

[27] The result in Dabbs flows from a reading of the CPA as creating a specific right of appeal applicable to the circumstances before the court and limited to a party. The court held that when a statute creates a specific right of appeal, another statute providing a more general right of appeal, like the CJA, cannot be used to create a different right of appeal than that set out in the specific legislation.

[28] Dabbs is consistent with the language of s. 6(1)(b) of the CJA. Because Dabbs interpreted the relevant part of the CPA as creating a specific right of appeal applicable in the circumstances of the case and limited to parties, s. 6(1)(b) could not be used to expand that right of appeal to entities who were not parties. Dabbs is distinguishable from this case because, for the reasons set out above, I do not read the appeal provisions in s. 30 of the CPA as speaking to an appeal from an order dismissing an action.

[29] In Locking v. Armtec Infrastructure Inc., 2012 ONCA 774, the court considered an appeal from an order granting certain plaintiffs carriage of a class action proceeding. The court held that none of the appeal powers in s. 30 of the CPA applied to an appeal from a carriage order. The court stated, at para. 8:

Where the Act [CPA] does not specifically address the rights and avenues of appeal, s. 6(1)(b) of the Courts of Justice Act governs appeal to the Court of Appeal in class proceedings.

[30] I agree with the above observation. Of course, whether the Act does or does not “specifically address rights and avenues of appeal” will be a matter of statutory interpretation.

[31] Obiter dicta in Locking, at para. 10, also speaks directly to the issue raised on this appeal:

So, for example, an appeal in a class proceeding from an order striking out a statement of claim as disclosing no reasonable cause of action is appealable to the Court of Appeal.

[32] In summary, the order as it relates to the Diocese is an order dismissing the action. It is not an order granting or refusing certification. Under the terms of s. 6(1)(b) of the CJA, the order dismissing the action against the Diocese is appealable to this court unless there is an appeal to the Divisional Court. If there is an appeal to the Divisional Court, it must be found within the terms of s. 30 of the CPA. None of the provisions in that section directing appeals to the Divisional Court have any application to an order dismissing the action. Therefore, there is no appeal from that order to the Divisional Court. The appeal is to this court.

[33] Finally, I see no practical difficulties in holding that this court is the appropriate appellate forum. Experience shows that in most cases in which the defendant intends to challenge the adequacy of the pleadings on a certification motion, an appropriate Rule 21 motion will be brought in conjunction with the certification motion. If the Rule 21 motion is brought, everyone accepts that the appeal comes to this court. My conclusion that the appeal still comes to this court even when there is no formal Rule 21 motion does nothing to complicate the appellate landscape. The distinction between orders referable to certification, which is a procedural issue, and orders dismissing a claim is not difficult to make. That distinction determines the appropriate appellate forum.

B. THE MERITS OF THE APPEAL

(a) The absence of a motion to dismiss

[34] As indicated above, at para. 19, the motion judge had jurisdiction to dismiss the claim for failure to disclose a cause of action even absent a formal motion to dismiss. Clearly, however, it would have been better had the Diocese brought a formal motion to dismiss under Rule 21.01(1)(b). It would also have been better had the judge managing the proceedings required the Diocese to bring that motion upon being advised that the Diocese would take the position that the claim did not plead a proper cause of action against the Diocese. A helpful example of the proper procedure is found in Drady. The defendants, who contended that the claim did not reveal a cause of action, with the permission of the case management judge, brought a Rule 21.01(1)(b) motion to be heard immediately before the certification motion by the same judge who was to hear the certification motion: see also Kang v. Sun Life Assurance Company of Canada, 2013 ONCA 118, at paras. 25-27, aff’g 2011 ONSC 6335, 4 C.C.L.I. (5th) 86.

[35] I am satisfied, however, that the appellants were not prejudiced by the Diocese’s failure to bring a formal motion to dismiss. There is no reason to think that the appellants’ arguments or the motion judge’s analysis and conclusion would have been any different had the Diocese brought that motion.

[36] In holding that the appellants are not prejudiced by the absence of a formal motion, I do not ignore the appellants’ submission that they were not given a proper opportunity to amend their pleadings before the motion judge. The merits of that submission, however, do not depend on whether there was a formal motion brought under Rule 21.01(1)(b). The appellants have argued that they should have been given the opportunity to amend by the motion judge and that they can amend now if so required. This court can fully address the merits of that argument.

(b) The Claims against the Diocese

[37] There are no facts at this stage of the proceeding, only allegations in the Amended Amended Statement of Claim (the “Claim”). Those allegations are assumed to be true for present purposes: R. v. Imperial Tobacco Canada Limited, 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 34.

[38] In the Claim, the appellants allege that the respondents Father Farnsworth and Father Haig founded Grenville Christian College in 1969. They had been operating the school for about nine years when they were ordained as Anglican ministers in 1977. Father Farnsworth and Father Haig ran Grenville Christian College together until 1983 when Father Farnsworth became the sole headmaster. He operated the school until 1997. The appellants acknowledge that the Diocese has no liability for anything that occurred at the school before the ordination of Father Farnsworth and Father Haig.

[39] The appellants, and the class members they would represent, were all students at Grenville Christian College at various times between 1973 and 1997. They allege various forms of physical, psychological, emotional and spiritual abuse at the hands of Father Farnsworth, Father Haig and others at the school.

[40] The appellants’ claim against the Diocese is founded in negligence and a breach of fiduciary duty. The relevant allegations against the Diocese can be summarized as follows:

• The Diocese is responsible for the “training, ordination and supervision of Fathers Farnsworth and Haig” (Claim, at para. 9).
• The Diocese is “affiliated with Grenville Christian College” (Claim, at para. 9).
• Following the ordination of Father Farnsworth and Father Haig in 1977, they were “licensed by the Bishop of Ontario and/or the Dioceses of Ontario to act as Anglican clergy at Grenville Christian College” (Claim, at para. 18).
• Following the ordination of Father Farnsworth and Father Haig, “Grenville Christian College held itself out as an Anglican private school where children who attended would be taught in the Anglican faith and with Anglican values” (Claim, at para. 22).
• The Diocese was required to “educate the Plaintiffs in accordance with Anglican faith and values” (Claim, at para. 26).

[41] In respect of the negligence claim, the appellants further allege that the Diocese breached its duty to the appellants by failing to:

• undertake adequate investigation into the background of Father Farnsworth and Father Haig (Claim, at para. 33(k));
• provide adequate education, training and supervision of Father Farnsworth and Father Haig (Claim, at para. 33(l)); and
• ensure that the teachings and practices at Grenville Christian College promoted the Anglican faith and values (Claim, at para. 33(m)).

[42] The appellants also allege that the Diocese knew or should have known of the misconduct of Father Farnsworth and Father Haig, and knew or should have known that as a consequence of the mistreatment, students would suffer significant sexual, physical, emotional, psychological and spiritual harm resulting in various forms of damage: Claim, at paras. 42, 43.

[43] The pleadings alleging breach of fiduciary duty do not distinguish the Diocese from the other respondents. Those pleadings allege that the students were “entirely within the power and control of the Defendants”: Claim, at para. 27. The pleadings further allege that the respondents’ control over the students gave rise to a “fiduciary obligation to the Plaintiffs consistent with the obligations of a parent”: Claim, at para. 28.

(c) The Duty of Care Analysis

[44] The appellants’ main ground of appeal arises from the motion judge’s finding that on the facts as pleaded, the Diocese did not owe the appellants a duty of care. I will set the framework for my review of the motion judge’s reasons and the appellants’ arguments by describing the approach to be taken when deciding whether for the purposes of a claim in negligence a defendant owes a duty of care to a plaintiff. The approach is well established in the case law and was recently examined in detail by this court in Taylor v. Canada (Attorney General), 2012 ONCA 479, 111 O.R. (3d) 161. The approach was applied by the motion judge and is not a matter of contention between the parties. I can be brief.

[45] The duty of care inquiry proceeds through two stages. When the inquiry is made at the pleadings stage, the first stage involves a determination of whether the facts as pleaded disclose a sufficiently close relationship between the defendant and the plaintiff to establish a prima facie duty of care. To answer this question, one must first decide whether the facts as pleaded bring the claim, either directly or by analogy, within a category of cases in which the courts have previously recognized a prima facie duty of care. If the case falls within a recognized category of cases, the court will assume that a prima facie duty of care exists and move to the second stage of the duty of care inquiry. If, however, the facts do not place the case within an established category, the court must determine whether a new duty of care should be recognized in the circumstances. This determination is guided by the twin principles of foreseeability of harm and proximity of relationship.

[46] If the court determines that the pleadings do not reveal a prima facie duty of care, the inquiry is over and the negligence claim must fail. If, however, the court concludes that a prima facie duty of care has been made out, the court must go on to the second stage of the inquiry. At that stage, the court asks whether there are any residual policy considerations that justify negating the duty of care and denying liability.

[47] This case is not concerned with the second stage of the inquiry. The motion judge did not reach that stage. Nor do I.

(d) The Motion Judge’s Reasons

[48] The motion judge began, at paras. 64-67 of his reasons, by referencing and summarizing the well-known law surrounding the “plain and obvious” criterion against which the adequacy of the pleadings must be measured. He then turned to the negligence allegation.

[49] The motion judge first considered whether the claim fell within a recognized or analogous category. He characterized the claim as the failure by the Diocese to use its connection with Grenville Christian College to intervene and stop the wrongdoing at the school: at para. 89. The motion judge concluded that this claim was not within or analogous to any recognized class of negligence claims: at para. 89.

[50] The motion judge then turned his attention to the questions of foreseeability and proximity. He determined that neither existed on the facts as pleaded by the appellants. With respect to foreseeability, he stated, at para. 91:

[I]n my opinion it is not foreseeable that the Diocese would have a duty of care to the students of the school based on the circumstances that the private school conducted Anglican religious services, described itself as Anglican, and had headmasters ordained as Anglican ministers nine years after they had established the school as an independently-owned and operated school.

[51] In considering the relationship between the appellants and the Diocese, the motion judge stated, at para. 92:

The students have an indirect relationship with the Diocese. Moreover, the relationship or connection between the school and the Diocese, upon which the indirect relationship is built, is also remote, at least legally speaking. The Diocese did not own or contract with the school. There is no employee-employer relationship between the Diocese and Fathers Haig and Farnsworth. The Diocese has no control over the school’s operations. There were no corporate or organizational connections. The Diocese was not relied upon for operational advice, and no parent asked for or received advice from the Diocese about enrolling their children in the school. The Diocese had no legal right or legal duty to control or intervene in the operation of the school.

[52] The motion judge concluded his analysis of the negligence claim, at para. 97:

[I]t is not the case that the Diocese was involved in the management, operation, supervision and staffing of the school. The most that can be said is that the Bishop of the Diocese ordained Fathers Haig and Farnsworth as Anglican ministers and Fathers Haig and Farnsworth performed Anglican services and celebrations at the school. It is plain and obvious that the pleaded claim against the Diocese, even if factually proven, does not constitute a reasonable cause of action because there is no duty of care.

[53] The motion judge next examined the breach of fiduciary duty claim. After summarizing the essential elements of that cause of action and referring to the relevant parts of the Claim, the motion judge observed, at paras. 110-11:

The Diocese had no power or influence over the students. The students were not vulnerable or dependent upon the Diocese. The Diocese did not have any direct contact with the students, and the Diocese did not take advantage or betray the students. The Diocese did not undertake to act with loyalty to the students.

Indeed, for some students who had faith, other than Anglican, it is doubtful that there was any relationship at all between the student and the Diocese.

[54] The motion judge concluded that the pleadings did not reveal a cause of action for breach of fiduciary duty.[^4]

(e) The Parties’ Arguments

(i) The appellants

[55] The claims against the Diocese focus on the ordination of Father Farnsworth and Father Haig in 1977. The appellants argue that the ordination and the “licens[ing]” of Father Farnsworth and Father Haig to “act as Anglican clergy” at Grenville Christian College created a duty of care owed by the Diocese to all students who attended the school after the ordination in 1977. The appellants contend that the duty extended to the proper training and supervision of Father Farnsworth and Father Haig, as well as to ensuring that the students received an education that accorded with the “Anglican faith and values”.

[56] The appellants submit that the case law has recognized that a diocese owes a duty of care to persons who, by virtue of a task or responsibility assigned to a priest by a diocese, come under the influence, direction or authority of that priest. The appellants referred to several cases in which a diocese has been held liable in negligence to victims who were abused by priests in that diocese. The appellants cite these as examples of the category of case into which they contend these pleadings put this case. The appellants argue that on a proper approach to the duty of care analysis, the motion judge should have found that this case fell within an established category and thus a prima facie duty of care existed.

[57] Alternatively, the appellants argue that if the claim does not fall within a category of cases in which a duty of care has been recognized, the facts as pleaded demonstrate sufficient foreseeability of harm and proximity between the Diocese and the appellants to warrant a finding of a duty of care, or at least a finding that it was not “plain and obvious” that no such duty existed.

[58] The breach of fiduciary duty claim, like the negligence claim, relies heavily on the ordination of Father Farnsworth and Father Haig and their “licens[ing]” to serve as Anglican clergy at Grenville Christian College. The appellants contend that on the facts as pleaded, Father Farnsworth and Father Haig were in a fiduciary relationship with the students and that the Diocese’s power to supervise and direct Father Farnsworth and Father Haig placed the Diocese in that same relationship with the students. The appellants further submit that the Diocese’s licensing of Father Farnsworth and Father Haig to “act as Anglican clergy” at Grenville Christian College constituted an implied undertaking to the students by the Diocese that it would properly train, monitor and supervise Father Farnsworth and Father Haig. The appellants argue that the Diocese breached that undertaking to the appellants.

(ii) The Diocese

[59] The Diocese responds to the appellants’ submissions primarily by relying on the reasons of the motion judge. The Diocese submits that the case law does not establish a category of cases recognizing a duty of care owed by a diocese to persons harmed by priests ordained by and working within the diocese. The Diocese contends that the cases relied on by the appellants involve fact situations in which the relationship between the diocese and the priest was very different than the relationship alleged in the appellants’ pleadings. The Diocese argues that the duty of care established in those cases flowed from the nature of the relationship, not from the mere fact that the priests were ordained by and worked in the diocese.

[60] The Diocese contends that the motion judge properly identified foreseeability and proximity as the principles to guide his duty of care analysis. The Diocese, relying particularly on the proximity analysis, submits that the motion judge came to the right conclusion.

[61] Insofar as the breach of fiduciary duty claim is concerned, the Diocese emphasizes that the appellants did not plead any material facts capable of supporting the bald assertions in the Claim. Nor, according to the Diocese, do the appellants distinguish in their breach of fiduciary duty claim between the Diocese and the other respondents, despite the obviously very different relationship that the other respondents had with the appellants and other students. The Diocese asserts that the mere ordaining of Father Farnsworth and Father Haig as clergy could no more create a duty of care to the students, much less a fiduciary relationship, than could the Law Society’s licensing of a lawyer create a duty of care or fiduciary relationship between the Law Society and subsequent clients of the lawyer: see Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562.

(f) Analysis

(i) The negligence claim

[62] Liability in negligence is premised in part on the existence of a duty owed by the defendant to the plaintiff to take reasonable care in the circumstances. Absent that duty, there can be no liability for negligent conduct: see Taylor, at para. 65.

[63] If, even on a generous reading of the material facts as pleaded by the plaintiff, the defendant could not be found to owe a duty of care to the plaintiff, the pleading must be struck subject to allowing the plaintiff an opportunity to amend that pleading: see Eliopoulos (Litigation Trustee of) v. Ontario (Minister of Health and Long-Term Care) (2006), 2006 CanLII 37121 (ON CA), 82 O.R. (3d) 321 (C.A.), at paras. 8ff; Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, at paras. 21ff; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at paras. 14ff; and Imperial Tobacco Canada Limited, at paras. 17ff.

[64] I begin with the appellants’ submission that their claim falls within an established class of cases in which a duty of care has been recognized. The appellants refer to several cases in which a diocese was held liable in negligence for its failure to prevent abuse by priests who were working under the auspices of the diocese: John Doe v. Bennett, 2002 NFCA 47, 218 D.L.R. (4th) 276, aff’d 2004 SCC 17, [2004] 1 S.C.R. 436; Swales v. Glendenning (2004), 2004 CanLII 5011 (ON SC), 237 D.L.R. (4th) 304 (Ont. S.C.); and W.K. v. Pornbacher (1997), 1997 CanLII 12565 (BC SC), 32 B.C.L.R. (3d) 360 (S.C.). None of the cases relied on by the appellants engaged in any duty of care analysis, although the courts clearly found a duty of care since they found the diocese liable in negligence.

[65] I do not read these cases as broadly as do the appellants. In my view, those cases do not create a category of cases recognizing a duty of care owed in all circumstances by a diocese to persons who are abused by priests ordained by and working in the diocese. In the cases relied on by the appellants, the relationship between the diocese and the priest went well beyond ordination and assignment of the priest. For example, in John Doe (S.C.C.), at para. 15, the bishop (found to be legally synonymous with the diocese) was responsible for the “direction, control and discipline” of priests in the diocese. This very broad authority over the priest who perpetrated the abuse, combined with the bishop’s knowledge of the abusive conduct, was held to justify a finding of negligence against the diocese.

[66] In Swales, at paras. 207-8, the diocese acknowledged that it owed a duty of care to the victims, but argued that it had not breached that duty. The trial judge, relying primarily on the location where the abuse had occurred (in the priest’s room in the actual seminary), concluded that the conduct ought to have caused the diocese to appreciate the risk of wrongdoing and make appropriate inquiries. The combination of the acknowledged duty of care and the failure by the diocese to make inquiries when fixed with knowledge of conduct that did not conform to accepted practices was sufficient to impose liability in negligence.

[67] In W.K., at para. 54, the trial judge found that the relationship between the diocese and the priest had “all of the common law indicia of the employer/employee relationship”. Given that finding, it is hardly surprising that there was little dispute that the Bishop owed a duty of care to the young parishioner who was assaulted by the priest.

[68] In my view, the cases relied on by the appellants do not demonstrate that the relationship of a diocese to its priests automatically creates a duty of care owed by the diocese to persons who engage with those priests. Rather, the cases demonstrate that the existence of any duty must be determined by reference to the specific facts of the case, particularly the nature of the relationship that exists between the diocese, the priests and those affected by the conduct of the priests. The impact of the relationship on the existence of any duty of care owed by a diocese to those harmed by priests in that diocese must be examined using the first principles of foreseeability of harm and proximity of relationship.

[69] The concepts of foreseeability of harm and proximity are used to characterize the nature of the relationship between a plaintiff and a defendant for the purpose of determining whether that relationship gives rise to a duty of care. In Imperial Tobacco Canada Limited, at para. 41, McLachlin C.J. stated:

Proximity and foreseeability are two aspects of one inquiry — the inquiry into whether the facts disclose a relationship that gives rise to a prima facie duty of care at common law. Foreseeability is the touchstone of negligence law. However, not every foreseeable outcome will attract a commensurate duty of care. Foreseeability must be grounded in a relationship of sufficient closeness, or proximity, to make it just and reasonable to impose an obligation on one party to take reasonable care not to injure the other.

[70] The motion judge used foreseeability in two different ways in his reasons. He referred to foreseeability of harm to the appellants (at paras. 81, 90), but he also referred to foreseeability of the existence of a duty of care (at paras. 91-92). Only foreseeability of harm to the plaintiff is relevant to the duty of care inquiry: Hill v. Hamilton Wentworth Regional Police Services, 2007 SCC 41, [2007] 3 S.C.R. 129, at para. 22.

[71] The Claim contains two allegations against the Diocese that are germane to foreseeability:

• The Diocese was aware that Father Farnsworth and Father Haig were adherents of a religious group known as the Community of Jesus and followed its teachings and practices at Grenville Christian College (Claim, at paras. 19-21, 30); and
• The Diocese was aware of or should have been aware of the misconduct of the individual respondents and staff at Grenville Christian College, but took no steps to report the abuse to appropriate authorities or parents (Claim, at para. 42).

[72] The first allegation does not assist the appellants in establishing foreseeability of harm. The pleadings contain no description of the teachings or practices of the Community of Jesus. Without more, the allegation in the pleading adds nothing.

[73] The allegation that the Diocese knew or should have known of the ongoing abuse at the school goes directly to foreseeability of harm to students at the school. The pleading is, however, devoid of any material facts substantiating the allegation that the Diocese knew or ought to have known of the abuse. A bald assertion of foreseeability cannot suffice to establish foreseeability for the purposes of the duty of care inquiry. The material facts upon which the assertion that the Diocese knew or ought to have known should be pleaded.

[74] In any event, even if the foreseeability pleading could be cured by pleading material facts to substantiate the allegation, the pleading also fails to establish sufficient proximity in the relationship between the Diocese and the appellants to warrant the imposition of a duty of care.

[75] The pleading does not allege any direct relationship between the Diocese and the appellants. The appellants do not plead that the Diocese made any representations or did anything that the appellants in any way relied on at any time either before or while they were students at Grenville Christian College. Indeed, the pleadings do not allege any conduct of any kind by the Diocese toward the appellants, or any contact in any way between the Diocese and the appellants or their parents. The absence of any direct relationship between a plaintiff and a defendant is certainly not determinative of the existence of a duty of care. It is, however, an important factor which can point strongly away from a finding of proximity: Hill, at para. 30.

[76] Not only does the pleading not allege any direct relationship between the Diocese and the appellants, it says virtually nothing about any relationship between the Diocese and Grenville Christian College. There is no allegation that the Diocese had any control over or involvement with the school’s property, finances, staff, enrollment, curriculum or day-to-day management. Nor does the pleading allege a more general supervisory power as might reside in a Board of Governors. The Claim pleads only an undefined “affiliation” with Grenville Christian College (at para. 9), and a “licens[ing]” of Father Farnsworth and Father Haig to act as Anglican clergy at the school (at para. 18). Neither allegation speaks to any supervisory authority over the operation of the school. Upon reading the pleadings, one is left wondering what exactly, if anything, the Diocese had to do with the operation of the school.

[77] Similarly, the pleadings do not say much about the relationship between the Diocese on the one hand, and Father Farnsworth and Father Haig on the other insofar as the operation of Grenville Christian College is concerned. There is no allegation of anything approaching an employer/employee relationship. There is no allegation that the Diocese had any power to dismiss or otherwise discipline Father Farnsworth or Father Haig in respect of their operation of the school. There is no allegation that the ordination of Father Farnsworth and Father Haig changed anything about the operation of Grenville Christian College.

[78] For the reasons set out above, I agree with the conclusion of the motion judge that the relationship between the Diocese and the appellants was not such as to impose a duty of care on the Diocese. The negligence claim was properly struck.

(ii) The fiduciary duty claim

[79] In my view, if, as I would hold, the motion judge was correct in concluding that the facts as pleaded did not support a finding that the Diocese owed a duty of care to the appellants in negligence, it must follow that the fiduciary duty claim fails. If the facts as pleaded do not demonstrate sufficient proximity to warrant the imposition of a duty of care, I do not see how they could warrant the finding of a fiduciary relationship.

[80] There can be no fiduciary relationship unless the alleged fiduciary is in a position to exercise unilaterally some discretion or power that will affect the putative beneficiary’s legal or practical interests: see Galambos v. Perez, 2009 SCC 48, [2009] 3 S.C.R. 247, at para. 83. The only allegation in the Claim that touches on this component of a fiduciary duty claim is found at para. 27:

The Plaintiffs state that, at all material times, the children who attended the school were entirely within the power and control of the Defendants, and were subject to the unilateral exercise of the Defendants’ power or discretion.

[81] Unlike with the other respondents, there is nothing in the rest of the Claim that supports the conclusory statement in para. 27 as it relates to the Diocese. There are no material facts pleaded to suggest that the appellants were in any way under the power or discretion of the Diocese while attending Grenville Christian College. The pleading fails to show any cause of action for breach of fiduciary duty against the Diocese.

(iii) Should the appellants be given an opportunity to amend their pleading?

[82] It does not appear from the motion judge’s reasons that he considered the possibility of an amendment of the pleadings and it is not clear that he was asked to consider an amendment. During oral argument in this court, counsel for the appellants indicated that the appellants could and would, if necessary, amend their pleadings. However, counsel did not put forward any additional material facts, other than those already pleaded, that could form the basis of a negligence or fiduciary duty claim against the Diocese. No proposed amended pleading was placed before the court.

[83] This proceeding is five years old and is still at the pleadings stage. The weaknesses in the statement of claim as it relates to the action against the Diocese have been an issue since the commencement of the certification proceedings. The appellants have had ample opportunity to address those weaknesses and put forward any amendments available to them that would cure the deficiencies identified in the pleadings. No amendments have been offered. Absent any concrete proposed amendments, I see no point in extending the proceedings against the Diocese further by allowing leave to amend. I would not grant leave to amend.

IV

section 6(2) of the CJA

[84] As indicated above, the court determined, after hearing oral argument, that it would not exercise its jurisdiction under s. 6(2) of the CJA even if it had jurisdiction to hear the appeal from the dismissal of the action against the Diocese. These are our reasons for refusing to exercise that jurisdiction.

[85] Section 6(2) of the CJA provides:

The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court … if an appeal in the same proceeding lies to and is taken to the Court of Appeal.

[86] Section 6(2) recognizes that multiple appeals to different courts in the same proceeding can potentially generate inconsistent results and will inevitably increase the costs of litigation to the parties and impair the efficient use of judicial resources. In most cases, especially as here when all parties agree, the interests of justice will favour joinder.

[87] The jurisdiction to join appeals in s. 6(2) is, however, discretionary and not mandatory. There will be cases when factors relevant to the administration of justice are sufficiently strong to override the wishes of the parties to the appeal and any efficiencies achieved by joinder. This is one such case.

[88] First of all, I see little to be gained by joinder. The Divisional Court will no doubt await the result of this appeal. These reasons address only the adequacy of the pleadings against the Diocese, an entirely distinct issue from that arising out of the refusal to certify the action against the other respondents. Just as this court had no need to address the certification issues on this appeal, the Divisional Court will have no need to address the adequacy of the pleadings as against the Diocese. Whatever combination of results might have occurred on the two appeals, there is no risk of inconsistent results and very little overlap in the matters to be addressed on the two appeals.

[89] Lastly, and most importantly, I think the very different nature of the issues raised on the two appeals contraindicates joinder. The appeal to this court from the dismissal of the claim against the Diocese raises a straightforward pleadings issue. That issue, while it arises in a certification proceeding because of s. 5(1)(a) of the CPA, is not a certification issue in the sense that it engages any law or procedure particular to certification of class proceedings. The issue before this court could just as easily have arisen, and usually does arise, in litigation that has nothing to do with class proceedings.

[90] The issues raised on the appeal brought against the other respondents do engage the very core of the certification process and the judicial management of that process. Those “nuts and bolts” issues require evaluations best made by those with experience in the practical management of class action proceedings.

[91] Section 30 of the CPA directs appeals granting or refusing certification to the Divisional Court. Members of the Divisional Court, who as Superior Court judges also preside over class action proceedings, have experience in class action matters which members of this court do not have. By directing appeals in respect of certification to the Divisional Court, I think the legislature must be taken as having determined that the practical experience of those judges is important in resolving the difficult and often unique problems that arise in the context of certification applications. The legislature seeks to take advantage of that expertise by directing initial appeals to the Divisional Court while maintaining this court’s ultimate jurisprudential responsibility by allowing a further appeal to this court with leave: CJA, s. 6(1)(a).

[92] Joinder of an appeal properly taken to the Divisional Court which raises certification-related issues, with an appeal in this court that has nothing to do with issues unique to certification, would circumvent the clear legislative choice as to the appropriate appellate forum reflected in s. 30 of the CPA.

[93] The parties did not make out a case for joinder of these appeals.

V

conclusions

[94] For the reasons above, I would dismiss the appeal from the order dismissing the action against the Diocese. The remainder of the appeal has been transferred to the Divisional Court.

[95] The parties have not had an opportunity to make submissions about costs. The appellants should file written submissions of no more than 6 pages within 20 days of the release of these reasons. The Diocese and the other respondents may file submissions of no more than 3 pages within 30 days of the release of these reasons.

RELEASED: “DD” “MAR 08 2013”

“Doherty J.A.”

“I agree R.A. Blair J.A.”

• O’Connor A.C.J.O. took no part in the judgment.

[^1]: Actions against Betty Farnsworth (the spouse of Father Farnsworth) and Mary Haig (the spouse of Father Haig) were discontinued: Cavanaugh v. Grenville Christian College, 2012 ONSC 2398.

[^2]: This court’s decision dismissing the appeal is found at (2003), 2003 CanLII 36468 (ON CA), 167 O.A.C. 277 (C.A.). The jurisdictional issue is not discussed.

[^3]: This court has also heard an appeal from a dismissal of an action for failure to disclose a cause of action made in the context of a certification application when there was no Rule 21.01(1)(b) motion: see Attis v. Canada (Minister of Health), 2008 ONCA 660, 93 O.R. (3d) 35. Recently, in Brown v. Canada (Attorney General), 2013 ONCA 18, the motion judge purported to “conditionally” certify a class proceeding subject to the appropriate amendments to the statement of claim so that it would allege a cause of action. The defendant had brought a Rule 21.01(1)(b) motion to dismiss the action. An appeal was taken to the Divisional Court under s. 30 of the CPA, and then to this court with leave. Jurisdictional questions were not raised in either Attis or Brown.

[^4]: The motion judge also dismissed what he described as a vicarious liability claim against the Diocese: at paras. 99-105. It is not clear to me that there was a freestanding vicarious liability claim against the Diocese: see Claim, at para. 35. In any event, the appellants have not relied on a vicarious liability claim in advancing the appeal and I will not address that part of the motion judge’s reasons.