Cloud et al. v. The Attorney General of Canada et al.

[Indexed as: Cloud v. Canada (Attorney General)]

65 O.R. (3d) 492

[2003] O.J. No. 2698

Court File No. 1267

Ontario Superior Court of Justice Divisional Court Gravely, Valin and Cullity JJ.

June 23, 2003

Civil procedure -- Class proceeding -- Certification -- Preferable procedure -- Action against federal government with respect to injuries suffered by residents of residential school -- Claims for breach of fiduciary duty, negligence, assault, battery and breaches of aboriginal and treaty rights -- Certification refused -- Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5.

From 1922 to 1969, the Department of Indian Affairs, either by lease agreements or as owners, operated a residential school known as the Mohawk Institute near Brantford, Ontario. In an action commenced under the Class Proceedings Act, 1992, the plaintiffs claimed damages against the federal government and several others [page493] for breach of fiduciary duty, negligence, assault, battery and breaches of aboriginal and treaty rights. The plaintiffs moved for certification. The application was dismissed and the plaintiffs appealed.

Held, the appeal should be dismissed.

Per Valin J. (Gravely J. concurring): For certification of an action under the Class Proceedings Act, 1992, the plaintiff must satisfy all the criteria set out in s. 5(1) of the Act. For the purposes of the appeal, it was necessary to address only the issue of whether the class proceeding would be the preferable procedure, and it was not. Individual proceedings were inevitable, and they were a feasible, reasonable and preferable alternative to a class action. There were no common issues with respect to the claims of negligence, assault and battery, cultural and spiritual loss, breach of aboriginal rights and punitive damages. The motions judge correctly determined that the resolution of the common issues would do nothing to avoid or limit the length of the individual claims. There was no economy in the proposed proceeding and the trial as a class proceeding would be unmanageable. The underlying objectives of access to justice, judicial economy and behaviour modification would not be served by certifying the action as a class proceeding. The motions judge committed no error in principle in refusing to certify the action.

The motions judge was correct in holding that the Superior Court of Justice does not have jurisdiction to entertain claims under the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, for acts or omissions that occurred before May 14, 1953. And, he was correct in concluding that the plaintiffs did not have causes of action with respect to claims by family members brought under s. 61 of the Family Law Act, R.S.O. 1990, c. F.3.

Per Cullity J. (dissenting): There existed a cause of action, and the provisions of what are now ss. 43 and 44 of the Interpretation Act, R.S.C. 1985, c. I.5, preserved the vicarious liability of the Crown for the negligence of its employees for acts committed before May 14, 1953. There were common issues, and there was a link between those issues and the required objective criteria for ascertaining the class members. The allegations in the statement of claim raised the issue of whether there was a systemic breach of duty in this case, including the failure to have in place management and operations procedures that would reasonably have prevented abuse at the residential school. Without the benefit of the Supreme Court of Canada's decision in Rumley v. British Columbia, which was not available to him, the motion's judge erred in principle in failing to consider the common issue of a systemic breach of duty. Having found an overlooked common issue, the appeal court must consider afresh the issue of the preferable procedure. In this case, the trial of the common issues would be a fair, efficient and manageable method of advancing the claims pleaded. Contrary to the opinion of the majority, the question of whether a duty of care existed would not need to be determined separately for each plaintiff. A trial of the common issues would make it unnecessary to adduce evidence of the history of the establishment and operation of the school -- and the involvement of each of the defendants -- more than once. The common issues could not be said to be subsumed or overwhelmed by the individual issues. When compared to the alternative of separate trials of all the issues for each of the members of the class, certification as a class proceeding would provide the preferable procedure. Any difficulties with the litigation plan were solvable and the action ought to have been certified.

APPEAL from an order dismissing an application for certification of an action as a class proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6.

Cases referred to 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002), 62 O.R. (3d) 535, 28 C.P.C. (5th) 135, [2002] O.J. No. 4781 (QL) (S.C.J.); [page494] Abdool v. Anaheim Management Ltd. (1995), 21 O.R. (3d) 453, 121 D.L.R. (4th) 496, 31 C.P.C. (3d) 197 (Div. Ct.), affg (1993), 15 O.R. (3d) 39, 16 C.P.C. (3d) 142 (Gen. Div.); Bonaparte v. Canada (Attorney General), [2003] O.J. No. 2547 (QL) (C.A.), supp. reasons (2003), 64 O.R. (3d) 1, 30 C.P.C. (5th) 59, [2003] O.J. No. 1046 (QL) (C.A.), affg (2002), 16 C.P.C. (5th) 105, [2002] O.J. No. 112 (QL) (S.C.J.); Carom v. Bre-X Minerals Ltd. (2000), 51 O.R. (3d) 236, 196 D.L.R. (4th) 344, 1 C.P.C. (4th) 62, 11 B.L.R. (3d) 1 (C.A.), revg (1999), 46 O.R. (3d) 315n, 6 B.L.R. (3d) 82, 1 C.P.C. (5th) 82 (Div. Ct.), affg (1999), 44 O.R. (3d) 173, 46 B.L.R. (2d) 247, 35 C.P.C. (4th) 43 (S.C.J.) (sub nom. 3218520 Canada Inc. v. Bre-X Minerals Ltd.); Chadha v. Bayer Inc. (2003), 63 O.R. (3d) 22, 31 B.L.R. (3d) 214, 23 C.L.R. (3d) 1, 31 C.P.C. (5th) 40, [2003] O.J. No. 27 (QL) (C.A.), supp. reasons (2003), 223 D.L.R. (4th) 158, [2003] O.J. No. 1162 (QL) (C.A.), affg (2001), 54 O.R. (3d) 520, 200 D.L.R. (4th) 309, 15 B.L.R. (3d) 177, 8 C.P.C. (5th) 138 (Div. Ct.), revg (1999), 45 O.R. (3d) 29, 36 C.P.C. (4th) 188 (S.C.J.); Franklin v. University of Toronto (2001), 56 O.R. (3d) 698 (S.C.J.); Hollick v. Metropolitan Toronto (Municipality), 2001 SCC 68, [2001] 3 S.C.R. 158, 56 O.R. (3d) 214n, 205 D.L.R. (4th) 19, 277 N.R. 51, 24 M.P.L.R. (3d) 9, 2001 SCC 68, 13 C.P.C. (5th) 1, affg (1999), 46 O.R. (3d) 257, 181 D.L.R. (4th) 426, 41 C.P.C. (4th) 93, 7 M.P.L.R. (3d) 244 (C.A.), affg (1998), 42 O.R. (3d) 473, 168 D.L.R. (4th) 760, 31 C.P.C. (4th) 64 (Div. Ct.), revg (1998), 18 C.P.C. (4th) 394 (Ont. Gen. Div.); Mouhteros v. DeVry Canada Inc. (1998), 41 O.R. (3d) 63, 22 C.P.C. (4th) 198 (Gen. Div.); Pearson v. Inco Ltd., [2002] O.J. No. 2764 (QL), [2002] O.T.C. 515 (S.C.J.); R. v. Anthony, [1946] S.C.R. 569, [1946] 3 D.L.R. 577; Rumley v. British Columbia, [2001] 3 S.C.R. 184, 95 B.C.L.R. (3d) 1, 205 D.L.R. (4th) 39, 275 N.R. 342, [2001] 11 W.W.R. 207, 2001 SCC 69, 10 C.C.L.T. (3d) 1, 9 C.P.C. (5th) 1, affg (1999), 180 D.L.R. (4th) 639, 72 B.C.L.R. (3d) 1 (C.A.) Statutes referred to Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 1, 5 Crown Liability Act, S.C. 1953, c. 30, s. 24(1) Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50 Exchequer Court Act, R.S.C. 1952, c. 98, s. 18(1)(a) Family Law Act, R.S.O. 1990, c. F.3, s. 61 Interpretation Act, R.S.C. 1985, c. I-21, ss. 43, 44

R.M. Raikes and Kirk M. Baert, for plaintiffs (appellants). J.W. Leising and Glynis Evans, for defendant/respondent Attorney General for Canada. Brian T. Daly and Lisa Gunn, for defendant/respondent The Incorporated Synod of the Diocese of Huron. Robert B. Bell, for defendant/respondent The New England Company.

1VALIN J. (GRAVELY J. concurring): -- The appellants are the plaintiffs in an action commenced under the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the "Act") against the respondents. Pursuant to the Act, they moved for certification of the action as a class proceeding. The motion judge dismissed the application. This is an appeal from that decision. For the reasons [page495] which follow, I would uphold the decision reached by the motion judge and dismiss the appeal.

Background

2The New England Company (the "Company"), a registered charity in England, was incorporated by Royal Charter in 1662 "to promote and propagate the Christian religion in New England and parts adjacent in America . . . and to educate the native population in religion, morality, knowledge of the English language and other liberal arts and sciences . . .". In 1828, it established a residential school, known as the Mohawk Institute (the "Institute"), near Brantford, Ontario. The Company operated the school until 1922.

3In 1922, the Department of Indian Affairs ("Canada") entered into a lease agreement with the Company. Under the lease, Canada agreed to continue the Institute as an educational establishment primarily for students drawn from the Six Nations who were to be trained in the teachings and doctrines of the Church of England. The Company had the right to inspect the school to see if it was being maintained and operated in accordance with the provisions of the lease. Initially, the Company made a small annual financial contribution to the upkeep of the school.

4When Canada took over operation of the Institute in 1922, the principal of the school was not an ordained clergyman. In 1929, Canada sought to appoint an Anglican clergyman as principal of the Institute and requested that the Bishop of the Diocese of Huron (the "Diocese") nominate candidates for Canada to select from for that purpose. The selection process was repeated in 1945. At no time did the Diocese agree to manage or operate the Institute.

5The 1922 lease expired in 1943. On May 1, 1947, the Company entered into another lease with Canada for a term of 21 years for a rent of $1. The 1947 lease did not contain the proviso that the students be trained in the teachings and doctrines of the Church of England. Rather the lease required that "the pupils of the Institute whose parents so desire shall be trained in the teachings and doctrines of the Church of England in Canada . . .".

6In 1965, the Company sold the Institute to Canada. The sale was unconditional. The lease terms requiring the operation of the school for native children and that Anglican teachings be available were not continued. The Institute closed in 1969.

7In this action, the appellants claim damages against Canada, the Company and the Diocese. The substance of the material facts on which claims for breach of fiduciary duty, negligence, [page496] assault, battery and breaches of aboriginal and treaty rights are based is described in detail in the statement of claim and was described by the motion judge as an alleged "sustained, systematic programme of physical, emotional, spiritual and cultural abuse".

8The list of types of harm for which the appellants seek damages is contained in para. 52 of the statement of claim. The list includes, but is not limited to, a loss of aboriginal language, culture and family roots, a loss of self-esteem, an inability to complete their education, reduced earning capacity, physical pain and suffering, and psychological disorders.

9The claims are made for the period from 1922 to 1969 on behalf of all students who attended the Institute during that period. The appellants estimate there were approximately 1,400 such students. In addition, two of the appellants advance claims for breach of fiduciary duty and for loss of care, guidance and companionship under the Family Law Act, R.S.O. 1990, c. F.3. Those two appellants seek to represent the parents, siblings, spouses and children of former students. The number of such persons is estimated to be 4,200. As far as the claims based on aboriginal rights are concerned, the appellants acknowledged that it might be necessary to divide the proposed composite class into subclasses.

The Issues

10The following issues were argued on the appeal:

1. Was the motion judge correct in determining that he lacked jurisdiction to consider claims based on conduct that occurred prior to 1953?

2. Was the motion judge correct in holding that family members could not assert claims pursuant to s. 61 of the Family Law Act?

3. Was the motion judge correct in concluding that there was no identifiable class (s. 5(1)(b) of the Act)?

4. Was the motion judge correct in finding there were no common issues to be certified (s. 5(1)(c) of the Act)?

5. Was the motion judge correct in finding that a class action was not the preferable procedure (s. 5(1)(d) of the Act)?

Analysis

11With respect to the first issue, the motion judge determined that the Superior Court of Justice does not have jurisdiction to [page497] entertain claims under the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, arising from acts or omissions that occurred prior to May 14, 1953. In my view, that decision was correct. I find no error in the reasons advanced by the motion judge in support of that decision.

12Moving on to the second issue, the motion judge held that the appellants did not have causes of action with respect to claims by family members of former students brought under s. 61 of the Family Law Act. Again, I am of the view that his decision was correct. However, regardless of my opinion, after the appeal in this case was argued, the Ontario Court of Appeal released its decision in Bonaparte v. Canada (Attorney General) (2003), 64 O.R. (3d) 1, [2003] O.J. No. 1046 (QL) (C.A.). In that case, the Court of Appeal reached the same conclusion as the motion judge in this case on the Family Law Act issue.

13Section 5(1) of the Act provides for the certification of an action as a class proceeding in circumstances where all five specified criteria have been satisfied. The remaining issues raised on this appeal relate to the criteria set out in s. 5(1). The motion judge found that the appellants failed to satisfy the four criteria listed in paras. (b) through (e) of s. 5(1). The failure by the appellants to establish any one of the specified criteria would result in the dismissal of the application for certification.

14For the purposes of this appeal, I find it is necessary to address only the issue of whether a class proceeding would be the preferable procedure for the resolution of common issues (s. 5(1)(d)).

15The developed expertise of judges assigned to hear certification motions should be recognized and respected. Intervention by an appellate court should be restricted to matters of principle. See Carom v. Bre-X Minerals Ltd. (2000), 51 O.R. (3d) 236, 196 D.L.R. (4th) 344 (C.A.), at paras. 36 and 37.

16To a large extent the issue of preferability was canvassed by the motion judge in the context of his analysis of the common issues question. Ultimately, the court must consider whether the resolution of common issues will significantly advance the litigation. The motion judge found that there were numerous significant individual issues that would require trial beyond the resolution of any common issues. At para. 71 of his reasons he stated:

Given the evidence of the many and varied challenges encountered by the students both before and after they attended the Mohawk Institute it would not be possible to determine which losses, if any, are attributable to the conduct of the defendants without conducting a separate inquiry for each student. Such an inquiry would also be required to establish the amount of damages for each claimant. [page498]

17The motion judge found that individual proceedings were inevitable. He concluded that there were no common issues with respect to claims for negligence, assault and battery, cultural and spiritual loss and breach of aboriginal rights, and punitive damages. In addition, he found that there were no common issues with respect to defences based on limitation periods and the doctrine of laches.

18In my view, any issues in common between the class members in this action are relatively general in nature. The motion judge correctly determined that the resolution of the common issues presented to him for consideration would do nothing to avoid or limit the length of the individual claims which will be inevitable given the diverse experiences of each student. Given the findings of the motion judge regarding the inevitability of the advancement of significant and numerous individual claims, I am not convinced that any attempt to identify or formulate common issues raised in the pleadings in terms of systemic negligence would usefully or significantly advance the litigation.

19In Hollick v. Metropolitan Toronto (Municipality), 2001 SCC 68, [2001] 3 S.C.R. 158, 205 D.L.R. (4th) 19, at paras. 27, 28 and 30, McLachlin C.J.C. identified the following factors to be considered when assessing the preferability of a class action:

1. whether certifying the class action serves the purposes of the Act which are (i) judicial economy, (ii) access to justice, and (iii) behaviour modification;

2. whether a class proceeding would constitute a fair, efficient and manageable method of advancing the claim, taking into account the relative importance of the common issues when compared with the claims as a whole; and

3. the availability and preferability of other avenues of redress, including individual actions.

20Commenting further on the issue of preferability, McLachlin C.J.C. stated, at para. 30:

The question of preferability, then, must take into account the importance of the common issues in relation to the claims as a whole . . . There must be a consideration of the common issues in context . . . [T]he preferability requirement asks that the class representative "demonstrate that, given all of the circumstances of the particular claim, [a class action] would be preferable to other methods of resolving these claims and, in particular, that it would be preferable to the use of individual proceedings.

(Emphasis added) [page499]

21I agree with the conclusion of the motion judge that no judicial economy would be achieved by certifying this proceeding as a class action. This case is similar to the conclusion reached by the Supreme Court of Canada in Hollick in that, once the common issues are seen in the context of the entire claim, it becomes difficult to say that the resolution of the common issues will significantly advance the action. I repeat that, even if the common issues advanced in this case were reformulated in terms of systemic negligence, the result would not be altered; the common issues will not significantly advance the action.

22When considering the question of common issues, the motion judge concluded that the nature of the claims advanced would by necessity result in a multitude of individual trials. I find no fault or error in that conclusion. This compels a conclusion similar to that reached in Mouhteros v. DeVry Canada Inc. (1998), 41 O.R. (3d) 63, 22 C.P.C. (4th) 198 (Gen. Div.) where Winkler J. stated, at p. 73 O.R.:

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 a class action would be completely unmanageable . . .

In my view, certification in this case will result in a multitude of individual trials, which will completely overwhelm any advantage to be derived from a trial of a few common issues . . .

23The motion judge found that individual actions would be necessary to deal with different types of abuse, different perpetrators, different circumstances before and after attendance by the students at the Institute, different limitation periods and different damages. Those findings compel the conclusion that, if anything could be dealt with among the claimants in common, it would be at such a general level that it would not be helpful in advancing the claims in a legally material way.

24The onus is on the appellants to prove that a class action will improve access to justice. There were no facts placed before the motion judge that persons who attended the Institute and who may have claims have experienced difficulty accessing justice.

25In Abdool v. Anaheim Management Ltd. (1995), 21 O.R. (3d) 453, 121 D.L.R. (4th) 496 (Div. Ct.), at p. 473 O.R., this court stated:

As a rule, certification should have as its root a number of individual claims which would otherwise be economically unfeasible to pursue. While not necessarily fatal to an order for certification, the absence of this important underpinning will certainly weigh in the balance against certification. [page500]

I adopt that statement. This case will require numerous individual determinations. That fact compels a conclusion that the procedure of certification will not result in any judicial economy.

26There were no facts before the motion judge to suggest that individual claims were economically unfeasible to pursue.

27The Institute was closed in 1969. Currently, there are no residential schools for First Nations students in operation anywhere in Canada. I agree with counsel for Canada that, in those circumstances, there is no need at this stage for behaviour modification or deterrence.

28As noted earlier, the decision of the Supreme Court of Canada in Hollick requires the court hearing an application for certification to consider whether a class proceeding would constitute a fair, efficient and manageable method of advancing the claim, taking into account the relative importance of the common issues when compared with the claims as a whole. The motion judge adopted the reasons of Carthy J.A. in Hollick v. Metropolitan Toronto (Municipality) (1999), 46 O.R. (3d) 257, 181 D.L.R. (4th) 426 (C.A.), at pp. 266-67 O.R. to the effect that there was no economy in the proposed proceeding and that the trial would be unmanageable. I agree with that finding.

29To be certified, a class action must be a fair method of proceeding, not only for the plaintiffs, but also for the defendants. In Chadha v. Bayer Inc. (2001), 54 O.R. (3d) 520, 200 D.L.R. (4th) 309 (Div. Ct.), at p. 542 O.R., p. 333 D.L.R., Somers J. held that the rights of a defendant opposing certification are an essential factor to be considered in assessing whether a class proceeding would be preferable.

30The facts of this case suggest that the possibility of a finding of liability against the Company is quite remote. In addition, the exposure of the Diocese to liability may well be restricted to specified periods of time which are significantly less than the period of time during which the Institute was operated as a residential school. In fairness, those defendants should only have to respond to claims that arose during the restricted periods of time during which they could possibly be found liable. Certification would compel them to respond to the claims of the entire class in circumstances where they might otherwise be found to have no exposure on liability issues during specified periods of time. In my opinion, such a result would defy any notion of fairness to those defendants.

31The last factor to be considered under s. 5(1) (d) of the Act is the availability and preferability of other avenues of redress, including individual actions. Several former students of the Institute have already commenced individual actions claiming damages for sexual assault. Given the findings of the motion judge [page501] outlined in para. 71 of his reasons, which findings I accept, individual actions will be required for each student. In the circumstances, individual actions by former students are a feasible, reasonable and preferable alternative to a class action.

32At the time he released his decision, the motion judge did not have the benefit of the decision of the Supreme Court of Canada in Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184, 205 D.L.R. (4th) 39. Counsel for the appellants relied heavily on that decision. The decision in Rumley is fundamentally distinguishable from this case for the following reasons:

(a) Rumley was pleaded in a very narrow manner. The common issue that was certified was sexual abuse. In this case, sexual abuse claims were not included in the pleadings. A number of former residents of the Institute are pursuing individual actions for damages based on sexual abuse.

(b) In Rumley, there was a pre-trial determination that sexual abuse had occurred at the school. The essential issue is whether the school should have prevented the abuse or whether it should have responded to the abuse differently. In this case, whether abuse in fact occurred appears to be a live issue.

(c) In Rumley, there was one defendant. As well, claims for vicarious liability were abandoned to avoid the need for individual inquiries. In this case, there are three defendants. Claims for vicarious liability are being advanced. As a result, complex individual inquiries are inevitable.

(d) The sole ground of liability advanced on behalf of the plaintiffs in Rumley was systemic negligence. The only claim certified was for punitive damages. Because systemic negligence is not specific to any one plaintiff, but rather to the class as a whole, the appropriateness and quantification of punitive damages are questions that lend themselves to resolution as common issues. By contrast, in this case, certification of any issues based on systemic negligence would be of little if any benefit to the class members because the nature of the claims advanced are not limited to damages for systemic negligence. The additional claims advanced are individual and complex in nature. In order for any liability to be established at trial, individual trials will be required:

(i) to determine whether a particular defendant owed a duty of care to a particular plaintiff; and [page502]

(ii) to determine issues of causation, injury and discoverability (related to the limitation period defence).

33Given the significant differences between Rumley and this case, it is my view that the Supreme Court of Canada decision in Rumley would not have caused the motion judge to arrive at a different decision on the issue of preferability.

34The motion judge also did not have the benefit of the decision of the Supreme Court of Canada in Hollick at the time he released his decision. Even if he had framed the common issues in terms of systemic negligence, and even if he had the benefit of the instructions of McLachlin C.J.C. on the issue of preferability, I do not believe the motion judge would have certified the action as a class proceeding. That belief is based on the thorough analysis undertaken by the motion judge in his reasons.

35With respect to the issue of whether a class proceeding would be the preferable procedure, there is no basis for concluding that the motion judge committed any error in principle in arriving at his decision. Regardless of the analytical route he followed, he correctly determined that a class action is not the preferable procedure because the underlying policy objectives of access to justice, judicial economy and behaviour modification would not be served by certifying the action as a class proceeding.

36After this case was argued, counsel for the Diocese forwarded to this court a copy of the decision of the Court of Appeal in Bonaparte v. Canada, supra. That decision would not alter the result in this case. Therefore, there is no need to seek further submissions from counsel.

Result

37The appeal is dismissed. At the request of counsel at the conclusion of the hearing, the respondents will have 30 days from the date of the release of this decision to make written submissions on costs; the appellants will have 30 days from the date of delivery of those submissions to file their written submissions on that issue.

1CULLITY J. (dissenting): -- As the conclusions I have reached differ from those of my colleagues mainly with respect to the common issues and the preferable procedure, my consideration of the appellants' submissions on the requirements of s. 5(1)(a) (existence of a cause of action) and 5(1)(b) (existence of a class) will be relatively brief. [page503]

Section 5(1)(a): Existence of a Cause of Action

2Unlike my colleagues, I would be in favour of accepting the submissions of the appellants that, by virtue of the provisions that are now ss. 43 and 44 of the Interpretation Act, R.S.C. 1985, c. I-21, the vicarious liability of the Crown for negligence of its employees before May 14, 1953 -- pursuant to s. 18(1)(a) of the Exchequer Court Act, R.S.C. 1952, c. 98 -- was preserved. I do not believe that the transitional provisions of s. 24(1) of the Crown Liability Act, S.C. 1953, c. 30, reflect a legislative intention to override, and exclude, the effect that the provisions of the Interpretation Act would otherwise have.

3Section 24(1) prohibits proceedings against the Crown "under this Act" in respect of acts or omissions occurring before May 14, 1953 -- the day on which the statute received Royal Assent. No reason why Parliament would have intended to depart from the general rule otherwise applicable to all of its statutes and, in effect, wipe the slate clean with respect to past negligence -- no matter how recently in the past -- was suggested. To my mind, a more reasonable interpretation of s. 24(1) is that the "proceedings . . . taken against the Crown under this Act" to which it refers are limited to those that could not previously have been brought under the Exchequer Court Act -- to those that would "operate as new law" within the meaning of s. 44(f) of the Interpretation Act. On this interpretation, an application of s. 43 of the Interpretation Act would not be excluded, or affected, and proceedings that could have been brought prior to the repeal of s. 18(1)(c) of the Exchequer Court Act could still be brought in the Exchequer Court as if it had not been repealed.

4Moreover, the fact that the concurrent jurisdiction of this court is, since 1992, conferred in provisions of the Crown Liability and Proceedings Act is not, in my opinion, sufficient to attract an application of s. 24(1) of the Crown Liability Act 1953. The section would, however, be effective to bar claims against the Crown in respect of tortious breaches of duties that occurred before May 14, 1953, to the extent that such claims were not based on vicarious liability for the negligence of Crown servants. It follows that the appellants' claims in tort for breaches of duties owed directly to them by the Crown can only be advanced in respect of breaches that are alleged to have occurred on, or after, that date. In R. v. Anthony, [1946] S.C.R. 569, [1946] 3 D.L.R. 577, at p. 571 S.C.R. -- in which the interpretation of s. 18(1)(c) of the Exchequer Court Act was in question -- Rand J. emphasized the importance of the distinction between claims based on the principle of respondeat [page504] superior and those based on breaches of duty owed by the Crown to its subjects.

5In my opinion, no such limitation would apply to the claims against the Crown for breach of fiduciary duty. These were claims in equity that were not affected by the provisions of the Crown Liability Act, 1953, and which might have been brought in the Exchequer Court before, or after, May 14, 1953 under the provisions of the Exchequer Court Act. As I have indicated, I do not believe that the concurrent jurisdiction of this court is excluded by s. 24(1) of the 1953 Act with respect to the earlier claims simply because that jurisdiction was conferred by an amendment to the Crown Liability and Proceedings Act that came into force in 1992.

Section 5(1)(b): Existence of a Class

6The appellants sought certification on behalf of three different classes:

1. All individuals who were students at the Mohawk Institute between 1922 and 1970.

2. The parents and siblings of the individuals in Class 1.

3. The spouses -- including common-law spouses -- and children of individuals in Class 1.

7In the reasons of the motions judge, and in the oral submissions made at the hearing of the appeal, no distinction was drawn between the Family Law Act claims and those for breach of fiduciary duty, as far as the second and third of these classes were concerned. In each case, the finding at first instance was that the statement of claim disclosed no cause of action. The correctness of the learned judge's findings with respect to the Family Law Act claims is, I believe, established by the authorities he cited and by the reasons of the Court of Appeal in Bonaparte v. Canada (Attorney General) (2003), 64 O.R. (3d) 1, [2003] O.J. No. 1046 (QL) (C.A.) that were released after the hearing. However, in view of the decision of the Court of Appeal, the finding that no cause of action existed for the Crown's alleged breach of fiduciary duties owed to the second and third classes would, I believe, need to be reconsidered and further submissions invited if its rejection could have any bearing on the decision of this court. As my understanding is that it would not affect the conclusion my colleagues have reached with respect to the preferable procedure or even, perhaps, the existence of common issues, I do not think it is [page505] necessary to postpone the release of the decision or to deal with the implications of Bonaparte at length. I would say only that, if the claims for breach of fiduciary duties owed by the Crown to members of the second and third classes disclose the existence of causes of action in this case, I would consider the question whether those classes satisfied the requirement in s. 5(1)(b) of the CPA as dependent on whether the first (the "primary class") of the proposed classes would do so.

8The motions judge found that this proposed class did not satisfy the statutory requirement that there be "an identifiable class of two or more persons that would be represented by the representative plaintiff". In reaching his conclusion, he was influenced by the opinions he had formed with respect to the existence -- or non-existence -- of common issues. For the reasons I will explain, I believe there were common issues that were not accepted by the learned judge. I believe, also, that there is a rational relationship, or link, between these issues and the required objective criteria for ascertaining the members of the first of the three classes proposed by the appellants. I would, therefore, have accepted the appellant's submission that the requirement in s. 5(1)(b) is satisfied.

5(1)(c): Common Issues

9The motions judge found that there were no common issues. The situation was, in his judgment, similar to that in Hollick v. Toronto (Municipality) (1999), 46 O.R. (3d) 257, 181 D.L.R. (4th) 426 (C.A.), affd 2001 SCC 68, [2001] 3 S.C.R. 158, 205 D.L.R. (4th) 19, in which Carthy J.A. had commented that the only common issue suggested was liability and that he could not devise any other that would not result in a virtual royal commission into the defendant's conduct without any measurable advance in the litigation. In reaching this conclusion, the learned judge directed his attention, for the most part, not on whether particular common issues could be identified but, rather, on the nature and number of the issues that would require individual trials. To this extent, the focus of his analysis appears to have been on the issue of preferability that arises, strictly, only if, and after, common issues have been identified. Thus, at the end of this part of his reasons, he adopted the following statement and conclusion of Winkler J. in Mouhteros v. DeVry Canada Inc. (1998), 41 O.R. (3d) 63, 22 C.P.C. (4th) 198 (Gen. Div.):

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 [page506] virtually each class member. Each student's experience is idiosyncratic, and liability would be subject to numerous variables for each class member. Such a class action would be completely unmanageable.

(At p. 73 O.R.)

10In the litigation plan that was part of the plaintiffs' notice of motion for certification, no less than 53 common issues were proposed. These were generally very specific in the sense that they were directed at particular aspects of the relationship between the defendants inter se, that of each of them to the school and its management and their respective part in particular details of its management and operations. They included questions such as:

What was the statutory framework within which the Mohawk Institute Residential School operated?

Who was the employer of the staff at the Mohawk Institute Residential School?

How were the operations of the Mohawk Institute Residential School funded and by whom?

Did students attending the Mohawk Institute Residential School provide labour for the farm operations and/or the daily upkeep and operation of the Mohawk Institute Residential School?

Were the children who provided such labour paid?

11Whether or not issues such as these raise points of contention that would require a trial for their determination, they were framed with a degree of particularity that, I believe, is neither necessary nor appropriate for an order for a trial of issues. Given the comparatively minor significance that many of the proposed common issues would have in determining whether a class action would be the preferable procedure, it is understandable that the motions judge directed most of his attention to that question and the significance of the issues that would need to be tried individually before the plaintiffs could succeed in establishing their claims. While being prepared to assume, without deciding, that the defendants owed a duty of care to each of the students, the learned judge found an absence of commonality in the standards of care -- which might have changed during the class period -- in the content of aboriginal rights as between different groups of students, in the issues relating to limitations and laches and, in particular, in the issues of causation. Causation, in his judgment, could not be established on the basis of a common level of abuse or mistreatment suffered by every student to attend the school. In the words of the learned judge, the submission of plaintiff's counsel to the contrary: [page507]

. . . equates recovery with attendance and ignores the inherently individual nature of the claims and the necessity of proving a nexus between the breach of duty and the loss. Damages are awarded for losses sustained as a result of injury suffered and the amount awarded depends on the circumstances of the individual claimant.

12At the hearing of the application, counsel for the plaintiffs submitted that the learned judge erred in law in requiring commonality for each element of the causes of action pleaded. It is, they submitted, the role of plaintiffs' counsel to suggest common issues so as to certify as much of the claim as is reasonable while the court has the responsibility to frame the common issues if it does not accept those suggested by counsel.

13I do not understand the motions judge to have required that all issues raised by the causes of action pleaded in a statement of claim must be common issues. His endorsement of the statement of Winkler J. in Mouhteros, by itself, is a clear indication to the contrary. Rather, as I have mentioned, his analysis of the requirement of common issues overlaps with the necessary inquiry into the preferable procedure under s. 5(1) (d) of the CPA. The issues under s. 5(1)(b), (c) and (d) are interconnected and it is not uncommon in the reasons delivered on motions for certification for the analyses to overlap. There was still, I believe, some basis for counsel's submission that, although the learned judge considered the requirements for certification in the order set out in s. 5 of the CPA, he permitted his views on preferability to influence his finding with respect to the issue existence of common issues and permitted his views on the latter question to determine whether there was an identifiable class.

14However, I do not accept that the role of counsel is adequately discharged by providing the motions judge with a shopping list of numerous possible common issues of varying degrees of significance to the resolution of the action together with an invitation to choose among them. Counsel for the defendants -- as well as the court -- are entitled to have the common issues identified in a form suitable for inclusion in an order for a trial of issues and counsel for the plaintiffs have the responsibility of satisfying the court that a trial of such issues will be the preferable procedure for advancing the litigation and resolving the claims. While the court will often find it possible and convenient to reformulate the proposed common issues, I do not believe that it is its responsibility in a case where the proposed common issues are rejected to search long and hard for other common issues. Notwithstanding the involvement of the motions judge in the management of the proceedings, they are still adversarial in nature and it is a responsibility of plaintiff's counsel to establish that [page508] there are grounds for certification -- including the existence, and identification, of common issues.

15In their factum for the appeal, counsel for the plaintiff refined, and reduced, the list of 53 proposed common issues to eight. These were as follows:

What role did each of the respondents play with respect to the management, control and operation of the Mohawk Institute?

What is the legal relationship and the extent of the obligations owed by each of the respondents to the children who attended the Mohawk Institute?

Did the respondents properly care for the children who attended the Mohawk Institute?

To what extent are the decisions of the respondent, Canada, to be characterized as decisions of policy versus operational decisions as they relate to the Mohawk Institute?

Did the respondents adequately and properly supervise the conditions and care of the children at the Mohawk Institute?

Did the respondents breach any fiduciary duty, a duty of care or aboriginal right?

Are any of the respondents vicariously liable for the conduct of the principal and staff at the Mohawk Institute?

Does the conduct of the respondents justify an award of punitive damages, and if so, in what amount?

16Counsel submitted that the motions judge failed to consider whether these issues were essential elements of the plaintiff's case and the extent to which the resolution at a trial would advance that case. It was submitted further that the issues are not dependent upon the specific needs of particular students but, rather, on the conditions and treatment of all students at the school. Part of para. 83 of their factum reads as follows:

It is submitted that the claims of the appellants in this matter are substantially systematic in nature. As such, the central issues in the action will be the nature and extent of the duty owed by the respondents to the class members and whether that duty was breached. Those issues are amenable to resolution in a class proceeding.

17In support of the submission that issues relating to systematic breach of duty should be considered to be common issues, and a further submission that a trial of such issues would be preferable to other procedures, counsel relied heavily on the decision of the Supreme Court of Canada in Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184, 205 D.L.R. (4th) 39, which was not available to the motions judge, and on the reasons delivered in the same case in the Court of Appeal of British Columbia (1999), 180 D.L.R. (4th) 639, 72 B.C.L.R. (3d) 1 (C.A.). Counsel informed [page509] this court that the latter were relied on at first instance in this case. In counsel's submission, the motions judge erred in law in failing to consider the possibility of certification on the basis of the issues relating to systemic breach of duty.

18As I am in agreement with counsel that the possibility was not addressed by the learned judge, the question whether such common issues exist and, if so, that of their significance for the inquiry into the preferable procedure should be determined. This, I believe, should be done notwithstanding the unhelpful approach of counsel in the materials filed with the notice of motion for certification.

19In Rumley, an action brought on behalf of former students of a residential school operated by the defendant was certified for the purpose of a trial of the following common issues:

1. Was the defendant negligent or in breach of fiduciary duty in failing to take reasonable measures in the operation or management of the school to protect students from misconduct of a sexual nature by employees, agents or other students at the school?

2. If the answer to common issue no. 1 is "Yes", was the defendant guilty of conduct that justifies an award of punitive damages?

3. If the answer to common issue no. 2 is "Yes", what amount of punitive damages is awarded?

[At para. 21]

20At the hearing of the motion for certification in Rumley, [1998] B.C.J. No. 2588 (QL), the Chambers Judge was satisfied that the former students constituted an identifiable class and that one or more of the plaintiffs was capable of representing them. She held, however, that there was insufficient commonality of issues within the class to justify certification. In reaching this conclusion she relied on, among other things, alleged changes in standard of care over the relevant period, the need to determine the defendant's state of knowledge at given points of time and the vulnerability of particular plaintiffs.

21The Court of Appeal reversed the decision of the motions judge and ordered certification. It held that the factors that influenced her decision failed to recognize adequately the limited ground -- systemic negligence -- on which the claims were advanced. In delivering the judgment of the court, MacKenzie J.A. stated:

In my respectful view, these conclusions fail to adequately recognize the limited grounds on which the class claims are to be advanced. The plaintiffs do not rely on vicarious liability, which might require identification of individual perpetrators of sexual assault and a determination of whether the misconduct was within the course and scope of their employment. . . . Claimants will not have to prove that the abuse was caused by a particular [page510] staff member or other student in the absence of a claim for vicarious liability. In essence the claims will be based on systemic negligence, the failure to have in place management and operations procedures that would reasonably have prevented the abuse. That is limited ground of negligence but the plaintiffs are entitled to restrict the grounds of negligence they wish to advance to make the case more amenable to class proceedings if they choose to do so.

(At pp. 646-47 D.L.R.)

22In dismissing an appeal from the decision of the Court of Appeal, Chief Justice McLachlin agreed with MacKenzie J.A. that:

. . . class members share an interest in the question of whether the appellant breached a duty of care. On claims of negligence and breach of fiduciary duty, no class member can prevail without showing duty and breach. Resolving those issues, therefore is "necessary to the resolution of each class members claim . . . .

(At para. 27)

23The Chief Justice rejected a submission that the question whether the defendant's conduct fell below acceptable standards was "inescapably individualistic and not amenable to resolution in general terms applicable to all class members". The answer to this submission was, in the opinion of the Chief Justice, to be found in the fact that the proposed common issues related to systemic negligence as defined by MacKenzie J.A. Such negligence was not specific to any one victim but rather to the class of victims as a group and, therefore, the reasonableness of the defendant's acts or omissions could be determined without reference to the circumstances of any individual class member.

24In rejecting the argument that liability would depend on too many individual issues, the Chief Justice was not persuaded that variations in the applicable standard of care over a period of 42 years should be an obstacle to certification. She noted that class actions have often been certified in similar circumstances.

25If attention is directed solely to the possible existence of issues of systemic breach of duty in this case -- and consideration of the requirement of preferability is deferred -- I am satisfied that such issues are raised by the allegations in the statement of claim, that they are common to the members of the primary class and that the required rational connection between the criteria for identifying members of the class and such issues is present. As in Rumley, they would include a failure to have in place management and operations procedures that would reasonably have prevented abuse and, in addition, issues similar to those described by the Court of Appeal in Bonaparte as the essence of the claims for breach of fiduciary duty against the Crown in that case: [page511] namely, whether "the very purpose of the Crown's assumption of control over the primary plaintiffs was to strip the Indian children of their culture and identity, thereby removing, as and when they became adults, their ability 'to pass on to succeeding generations the spiritual, cultural and behavioral bases of their people'" [at p. 3 O.R.]. Here, as in Bonaparte, the plaintiffs claim that they were "specifically targeted by the governmental policy. They further allege that they were profoundly and adversely affected as a result."

26The situation is unlike that in Rumley in that the claims are not based solely on allegations of systemic breaches of duty. Such allegations are, however, sufficiently encompassed by the pleading to permit findings of such breaches to be made at a trial. To the extent that the statement of claim pleads vicarious liability arising from the conduct of particular employees of the defendants towards particular students, I am in respectful agreement with the finding of the motions judge that these do not give rise to common issues. For the reasons already given, this conclusion would effectively exclude, from the common issues, issues relating to the liability of the Crown in tort for acts or omissions that occurred before May 14, 1953. However, as the decision in Rumley indicates, there is no statutory requirement -- or reason of principle -- that prevents the proceeding from being certified on the basis of certain issues that are found to be common while excluding other issues and causes of action from the trial of the former. The proceedings could be decertified pursuant for s. 10 of the CPA in the event of that -- after any findings of liability arising from the decisions at the trial of the common issues have been made -- members of the primary class wished to pursue the claims of vicarious liability that would remain. Nor do I believe the refusal to include the issues arising from allegations of non-sexual abuse in the common issues to be tried in Rumley is persuasive against characterizing as common issues the similar allegations in this case.

27The relevant passage in the judgment of the Court of Appeal in Rumley reads as follows:

The common issues should not include assault or other abuse that does not have a sexual component. Non-sexual abuse still faces a two-year limitation period defence and "abuse" beyond the limits of the cause of action for assault may not be a recognized cause of action. The pleadings suggest that abuse lacking a sexual element is relatively minor and to the extent the non-sexual abuse alleged does not come within the definition of assault recovery may be controversial as a matter of law. In my opinion, these complications and the minor importance of non-sexual abuse compared to the allegations of sexual abuse weigh against including abuse without a sexual element in a common issue.

(At p. 649 D.L.R.) [page512]

28The passage I have quoted is addressed as much to the question of preferability as it is to the existence of common issues. The position here is different in that the claims are based primarily on the allegations of non-sexual abuse. I note, also, that the definition of common issues in s. 1 of the CPA includes issues of law.

29In the Supreme Court of Canada, McLachlin C.J. stated that, as no cross-appeal had been taken from the refusal of the Court of Appeal to certify on the basis of abuse that did not have a sexual component, it was unnecessary for the court to consider whether certification could have been granted on a broader basis.

30In this case, if attention is directed solely to the question of commonality -- leaving preferability to be considered later -- I am satisfied that common issues of systemic breach of duty do arise from the causes of action and the material facts pleaded and the evidential foundation that has been provided. With the benefit of the guidance of the decision of the Supreme Court -- which was not available to the judge at first instance -- I would characterize his failure to consider the possibility of common issues of this kind as an error of principle.

31While I would not accept without modification the original formulation -- or the reformulation -- of the common issues proposed on behalf of the plaintiffs, such issues could, I believe, be defined in terms of the existence and breach of duties of care, and fiduciary duties, owed by the defendants to class members -- and the infringement of the aboriginal rights of the members -- with respect to the purposes, operations, management and supervision of the Mohawk Institute and with respect to each of the categories of harm referred to in paras. 51 and 52 of the statement of claim. The issues relating to the existence and breach by the Crown of duties of care in tort would be confined to conduct that occurred after May 13, 1953. I would also include as common issues the claim for punitive damages arising from any of the above breaches that are proven and the possibility of an aggregate assessment of damages.

5(1)(d): The Preferable Procedure

32The question to be determined under s. 5(1)(d) of the CPA is very often the most contentious and difficult of those that arise on a motion for certification. As my conclusions are not shared by the other members of the panel, I am providing them with due respect and a degree of diffidence. In particular, I accept that a decision of a motions judge on the preferable procedure requires an exercise of judgment in weighing relevant factors that is properly to be regarded as discretionary and deserving of deference. If, [page513] however, on an appeal, it is found that there are common issues that were not identified at first instance, I do not see any escape from a conclusion that the question of preferability must be considered afresh. That question presupposes that a finding of certain common issues has been made and it can only be addressed in the light of the particular common issues that have been identified. Here, the motions judge had to all intents and purposes dealt with this question in his consideration of the existence of common issues and his comments on the requirements of s. 5(1)(d) were limited to the following:

It will be apparent from my comments above that I have determined that certification of this action as a class proceeding is not the preferable procedure because there is such a wide variety of important individual issues that will require independent inquiry. I cannot see that the underlying policy objectives of access to justice, judicial economy and behaviour modification would be served by certifying this action.

[At para. 76]

33The question of preferability must be reconsidered in the light of the formulation of common issues that I would have accepted. I take as the starting point the following statement of principle of Winkler J. in Carom v. Bre-X Minerals Ltd. (1999), 44 O.R. (3d) 173, 46 B.L.R. (2d) 247 (S.C.J.), at p. 239 O.R.:

A class proceeding is the preferable procedure where it presents a fair, efficient and manageable method of determining the common issues which arise from the claims of multiple plaintiffs and where such determination will advance the proceeding in accordance with the goals of judicial economy, access to justice and the modification of the behaviour of wrongdoers.

34The question is not merely whether a single trial of the common issues would be cheaper and more efficient than trying the same issues in individual trials: Hollick, at pp. 177-78 S.C.R. p. 35 D.L.R.; Abdool v. Anaheim Management Ltd. (1995), 21 O.R. (3d) 453, 121 D.L.R. (4th) 496 (Div. Ct.), at p. 461 O.R. Nor is it whether the common issues "predominate" over the individual issues: Hollick, at p. 178 S.C.R., pp. 35-36 D.L.R. It is, however, clear that a comparison and weighing of possible alternative methods for resolving the claims must be made. It is not legitimate to decide the question of preferability on the ground that the litigation should be discouraged -- that it would be preferable for the plaintiffs to abandon their claims -- a result that, in view of the uncontradicted evidence of the representative plaintiffs, may follow from the decision of the majority in this case. As Winkler J. indicated in 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada Ltd. (2002), 62 O.R. (3d) 535, [2002] O.J. No. 4781 (QL) (S.C.J.), the comparison is not to be made between a class proceeding, on the one hand, and no litigation, on the other: [page514]

The purpose of class proceedings legislation is to make the justice system accessible. To this end, the court must consider alternative procedures. However, as noted in Hollick at para. 16, the certification analysis is concerned with the "form of the action". Arguments that no litigation is preferable to a class proceeding cannot be given effect. If there is any basis to this argument, it is subsumed in the cause of action element of the test for certification.

(At para. 46)

35In Hollick, the Chief Justice accepted that the term "preferable" was meant to capture two ideas: first the question of "whether or not a class proceeding [would be] a fair, efficient and manageable method of advancing the claims", and second, "the question of whether a class proceeding would be preferable in the sense of preferable to other procedures such as joinder, test cases, consolidation, and so on" (at p. 177 S.C.R., pp. 34-35 D.L.R.).

36The Chief Justice emphasized that the common issues must be looked at in their context and that undue weight should not be given to the reference to a "resolution of the common issues" in s. 5(1)(d) rather than a "resolution of class members claims". She continued:

The question of preferability, then, must take into account the importance of the common issues in relation to the claims as a whole. It is true, of course, that the Act contemplates that class actions will be allowable even where there are substantial individual issues . . . As the Chair of the Attorney General's Advisory Committee put it, the preferability requirement asks that the class representative "demonstrate that, given all the circumstances of the particular claim, [a class action] would be preferable to other methods of resolving these claims and, in particular, that it would be preferable to the use of individual proceedings.

(At p. 178 S.C.R., pp. 35-36 D.L.R.).

37When viewed in the light of the above principles, I am satisfied that a trial of the common issues I would have framed would be a fair, efficient and manageable method of advancing the claims pleaded. As the focus of the inquiry would be on the conduct of the defendants, those issues could be determined without regard to differences in the family backgrounds, the experiences of particular class members at the school and the facts of each incident in which harm is alleged to have occurred -- factors that, in the judgment of the motions judge militated significantly against certification. I am in respectful disagreement with the opinion of my colleagues that the question whether a duty of care existed would need to be determined separately in respect of each plaintiff. The comments of McLachlin C.J.C. in Rumley are, I believe, in point:

It should be remembered, however, that as the respondents have limited their claims to claims of "systemic" negligence, the central issues in the suit will be the nature of the duty owed by [the school] to the class members and [page515] whether that duty was breached. Those issues are amenable to resolution in a class proceeding.

(At para. 36)

38If a breach of a systemic duty is established, the questions of causation that will remain to be determined are likely to be less complex and difficult than they would have been under the scenario considered, and rejected, by the learned judge. The fact that individual assessments of damages may be required is, by virtue of s. 6.1 not, by itself, a bar to certification. As I have indicated, the question whether an aggregate assessment of damages can and should be made should be left to be determined by the judge trying the common issues.

39As in Rumley, a trial of the common issues would make it unnecessary to adduce evidence of the history of the establishment and operation of the school -- and the involvement of each of the defendants -- more than once.

Issues relating to policy and administration of the school, qualification and training of staff, dormitory conditions and so on are likely to have common elements . . . . The overall history and evolution of the school is likely to be important background for the claims generally and it would be needlessly expensive to require proof in separate individual cases: (B.C.C.A., at pages 9-10; S.C.C., at page 57).

40In determining preferability, the weight to be given to the likely defences of limitations and laches raises difficulties. These defences are pleaded in the statement of defence of the New England Company and, although the other defendants have not yet pleaded, the motions judge. Evidently assumed that they would be relied upon. He stated:

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 a 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 a reasonable time after discovering the cause of action that was fraudulently concealed.

41The reasoning of the learned judge was quoted, and adopted, by Nordheimer J. in Pearson v. Inco Ltd., [2002] O.J. No. 2764 (QL), [2002] O.T.C. 515 (S.C.J.), at para. 126. Similarly, in Franklin v. University of Toronto (2001), 56 O.R. (3d) 698 (S.C.J.), Gans J. attributed negative significance to the [page516] number of individual triable issues that would be created by a defence of laches.

42In Rumley, the British Columbia Court of Appeal considered that limitation defences presented a formidable challenge to the plaintiff's claims of non-sexual abuse. The court was considering provisions of the legislation of that province that incorporate the principle of discoverability and held that they would inevitably require an examination of the individual circumstances of each class member. MacKenzie J.A. concluded that, while the individual dimension of the limitation defence was not in itself decisive, it was a factor "weighing against certification of common issues related to causes of action that face a limitations defence" (at p. 656 D.L.R.).

43The question here is how much weight should be given to these particular defences in determining whether certification as a class action is preferable on the facts of this case. I do not understand why the existence of the issue might be said to make it impossible to deal with the claims by a trial of common issues. It is simply an individual issue to be weighed against the benefits to be obtained from certification. Like other individual issues it restricts the extent that a determination of the common issues will move the proceedings along. One of the difficulties in estimating the weight to be given to the issue is that it may not be possible to determine when time should be considered to have commenced to run against the plaintiffs until the court has determined what, if any, breaches of duty were committed and by virtue of what conduct. Moreover, it is, I believe, difficult, if not impossible, to determine, in advance, the precise terms of the inquiry into discoverability that will be required if one, or more, systemic breaches of duty is found to have occurred.

44I recognize fully the force of Mr. Bell's complaint that is it is unsatisfactory for a defence that may provide his client with a short and conclusive response to all of the plaintiffs' claims to be left until after the proceedings have been certified and there has been a possibly lengthy trial of common issues. Of their nature, however, defences of limitations and laches require all the facts on which the causes of action are based to be before the court and Mr. Bell was not able to suggest any method by which the validity of the defences could be tried in advance. A trial of the common issues will require findings of those facts to be made and, if breaches of duty are found to have occurred, some of the material facts to which an inquiry into discoverability must be directed will be determined for all members of the class. In the circumstances of this case, I do not believe great significance should be attributed to the defences of laches and limitations that have [page517] been pleaded by Mr. Bell's client and that will, presumably, be asserted by the other defendants.

45Whether or not findings of breaches of systemic duty were made at the trial, the issues that the plaintiffs' counsel have described as the central issues in the action would have been resolved once and for all. In either event, the claims based on vicarious liability would remain if any of the plaintiffs wished to pursue them in individual actions against one, or more -- but, presumably not all -- of the defendants. As I indicated above, I do not believe the fact that -- unlike the position in Rumley -- such claims have been made is a reason for denying certification.

46While the goal of behavioural modification does not seem to be a value that would be achieved to any extent by certification, I am satisfied that the vulnerability of members of the class -- as evidenced by the uncontradicted statements in the affidavits sworn by the representative plaintiffs -- is such that the objective of providing access to justice would be served to an appreciable extent. Each of the representative plaintiffs referred to the poverty of many of the former students, their inability to afford the cost of individual actions and the effect such proceedings would have on the continuing emotional problems from which they suffer as a result of their experiences at the Mohawk Institute. These statements were not challenged on cross-examination and, unlike my colleagues, I see no reason to reject their truth or their significance.

47I would, however, give most weight to the interests of judicial economy by avoiding duplication -- and the possibility of inconsistent decisions -- on issues that would occupy a large part of any trial and would be of substantial and fundamental importance to the question of each defendant's liability. Not the least of these relates to the particular categories of harm to which the defendants' duties are alleged to extend and for which the plaintiffs claim damages. Unlike the findings in a number of the cases on which counsel for the defendants relied -- and with due respect to the views of the other members of the panel -- I do not believe that the common issues could be said to be subsumed, or overwhelmed, by the individual issues.

48I respectfully dissent from the conclusion of my colleagues that a decision that the defendants or any particular defendant breached, or did not breach, systemic duties of care, fiduciary duties or the aboriginal rights of members of the putative class would not significantly "advance the action". I am satisfied that, in the light of the goals I have mentioned and, certainly, when compared with the alternative explicitly preferred by my colleagues -- separate trials of all the issues for each of the 1,400 [page518] members of the class -- certification would provide the preferable procedure.

49Counsel for the defendants did not contend that alternative methods of dispute resolution or procedural alternatives, other than individual trials, would be more efficient, or would otherwise be more consonant with the objectives of the CPA, than certification as a class proceeding. Instead, reference was made to the "thousands" of actions involving former students of residential schools that are present before the Superior Court of Justice and under case management. In my opinion, that fact reinforces, rather than diminishes, the case for certification where, as here, systemic breaches of duty are alleged.

5(1)(e): A Representative Plaintiff With a Workable Litigation Plan

50As I mentioned earlier in these reasons, the motions judge was satisfied that the representative plaintiffs would fairly and adequately represent the interests of the other class members and that there were no apparent conflicts of interest. He did, however, regard the litigation plan as unworkable as it provides for the conduct of a trial to establish a common award of damages. Whether an aggregate assessment of damages can and should be made is, I believe, a matter that should properly be left to the trial of the common issues when the court would have determined whether -- and, if so, how -- duties to members of the class were breached.

51In this respect, as in others arising out of the reformulation of the common issues in those reasons, the litigation plan proposed by the plaintiffs would require amendment. The necessity for the conduct of individual trials, or "mini-trials" would also need to be addressed. It is not the function of the court -- and certainly not of this court on appeal -- "to amend or develop the litigation plan": Carom v. Bre-X Minerals Ltd., at pp. 203-04 O.R. Deficiencies in the plan proposed should not be a barrier to certification unless -- as will sometimes be the case -- they exposed weaknesses in the case for a finding that a class proceeding is the preferable procedure.

52In this case, I would have allowed the appeal, granted certification and left the details of the litigation plan to be resolved -- in the light of the above reasons -- between counsel under the supervision of the motions judge assigned to case-manage the proceedings.