CITATION: Johnston v. The Sheila Morrison Schools, 2011 ONSC 5591
DIVISIONAL COURT FILE NO.: DC-11-00000304-00ml
COURT FILE NO.: CV-09-379550-00CP
DATE: 20110923
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6
B E T W E E N:
GREG JOHNSTON and TIM WILLIAMSON
Plaintiffs (Moving Parties)
- and -
the sheila morrison schools and scott morrison
Defendants (Responding Parties)
Kirk Baert and Celeste Poltak, for the Plaintiffs (Moving Parties)
Steven Stieber and Elizabeth Bowker, for the Defendants (Responding Parties)
HEARD: September 21, 2011
HOY J.
REASONS FOR DECISION
[1] The representative plaintiffs in a class action, Greg Johnston and Tim Williamson, seek leave to appeal to Divisional Court the decision of the class action motions judge dated June 7, 2011 which permitted the defendants, The Sheila Morrison Schools and Scott Morrison, to bring third party claims against members of an already certified plaintiff class ‑ the parents of students at the school.
[2] The defendants’ theory is that the parents or guardians who chose to send their children or the children in their care and control to the school ‑ a private institution ‑ aware (the defendants argue) of the school’s policies and discipline practices, should also be liable for damages sustained by the students.
[3] Class counsel submits there are two good reasons to doubt the correctness of the motions judge’s decision.
[4] First, the motions judge did not accept that if the class members limited their claims to the several liability of the defendants (as class counsel represented it would do) the defendants cannot maintain a third party claim for contribution and indemnity. If a claim is made based on the several liability of a defendant, it is for the damages attributable to its proportionate degree of fault and not for any damages that are found to be attributable to the fault or negligence of any other person, or for which the defendant could claim contribution or indemnity.
[5] Second, Rule 29.01(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 states that a defendant may commence a third party claim against “any person who is not a party to the action and who, is or may be liable to the defendant for all or part of the plaintiff’s claim” [emphasis added]. The parents of students who attended the school between 1977 and 2009 are included in a sub-class defined in the certification order as the “Family Class.” Class counsel submits that, for the purposes of this Rule, once a class action has been certified, a class member constitutes a party to the action and a third party claim cannot be brought against him or her. Class counsel submits that, but for the fact that the claims will be limited to several liability, a counterclaim was the correct procedure in respect of class members. Class counsel appears to accept that but for the several liability issue, the correct procedure for guardians who are not included in the current class definition, would, unless the class definition was amended to include them, be a third party claim.
[6] The Court of Appeal in Taylor v. Canada (Minister of Health), 2009 ONCA 487, [2009] O.J. No. 2490 (C.A.) upheld a motion judge’s dismissal of a third party claim on the basis that it was “plain and obvious” that where a plaintiff limits her claim and those of the class members to those losses attributable to the defendant’s negligence, a right of contribution and indemnity does not arise and the defendant cannot advance a third party claim for contribution and indemnity.
[7] In Taylor, the plaintiff began a class action alleging that she suffered injuries as a result of the surgical implantation of a device in her jaw. She claimed that Health Canada’s negligent regulation of the devices caused her injuries and sued the Attorney General of Canada. The Attorney General brought third party claims against the dental surgeon and the hospital where the surgery took place. The Court of Appeal held that a judge has jurisdiction to apportion fault against a person who is not a party to the action, and can exercise this jurisdiction in an appropriate case. It further held that the case before it was an appropriate one for the Court to apportion fault against non-parties: it “will mean fewer parties at trial, a shorter trial and reduced costs”.
[8] While the theory of several liability was put to the motions judge in this case, the key Taylor case was not referred to in his very thorough reasons and I suspect it was not provided to him. Based on Taylor, it appears to me there is good reason to doubt the correctness of the motions judge’s decision.
[9] Counsel for the defendants argued that the motions judge’s remark that the several liability approach “may be easier said than done” indicates that the motions judge simply exercised his discretion and determined that this would not be an appropriate case to apportion fault against the parents and guardians if not parties to the action. The subsequent suggestion in his reasons that the parents and guardians would not be bound by the apportionment if not made third parties leads me to believe this was probably not the case.
[10] I am satisfied that the ability of students or residents of institutions to make claims against schools or other institutions on a several basis, and thereby avoid exposing their parents to counterclaims or third party claims, is a matter of sufficient importance that leave to appeal should be granted. It has access to justice implications.
[11] The second issue raised ‑ namely whether a class member becomes a party to the action for the purposes of Rule 29.01 ‑ appears to be a matter of first instance. Counsel could produce no case law with respect to whether or not, and to what extent, a class member becomes a party to the action following certification for the purpose of Rule 29.01 or generally. The motions judge determined that the third party claim satisfied the requirements of Rule 29.01 without detailed explanation. Whether or not or to what extent a class member is considered a party has implications in and will necessarily be part of the several liability analysis. (There is no doubt that liability can be apportioned to a party. Taylor talks of the issue in apportioning liability to persons who are non-parties.)
[12] In the result, leave to appeal the decision of the motions judge is granted. The costs of this motion shall be in the discretion of the panel hearing the appeal.
Hoy J.
Released: September 23, 2011
CITATION: Johnston v. The Sheila Morrison Schools, 2011 ONSC 5591
DIVISIONAL COURT FILE NO.: DC-11-00000304-00ml
COURT FILE NO.: CV-09-379550-00CP
DATE: 20110923
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6
B E T W E E N:
GREG JOHNSTON and TIM WILLIAMSON
Plaintiffs (Moving Parties)
- and -
the sheila morrison schools and scott morrison
Defendants (Responding Parties)
REASONS FOR DECISION
Hoy J.
Released: September 23, 2011