IAP Claimant H-15019 v. Wallbridge et al.
[Indexed as: IAP Claimant H-15019 v. Wallbridge]
Ontario Reports Ontario Superior Court of Justice Gordon J. March 13, 2019 145 O.R. (3d) 554 | 2019 ONSC 1617
Case Summary
Actions — Bars — Abuse of process — Plaintiff represented by defendants when he made unsuccessful claim in 2009 for compensation for sexual abuse at Indian Residential School — Plaintiff subsequently awarded compensation after retaining new counsel — Plaintiff suing defendants for damages for negligence — Claim against defendants not released by 2006 approval order that incorporated terms of Indian Residential School class actions settlement agreement — Approval Order not releasing causes of action which arose after effective date of release — Action not abuse of process.
The plaintiff was a survivor of an Indian Residential School. In 2009, he retained the defendants to bring an IAP claim for compensation for sexual abuse that he experienced at the school. The claim was rejected on the basis that his evidence was insufficiently reliable. He retained new counsel, secured a rehearing of his claim, and was awarded compensation. The plaintiff sued the defendants for damages for negligence. The defendants brought a motion to dismiss the action as an abuse of process on the basis that it was barred by the 2006 approval order that incorporated the terms of the Indian Residential School class actions settlement agreement.
Held, the motion should be dismissed.
The approval order provided for the release of any and all causes of action "asserted or which could have been asserted whether known or unknown . . ." and stated that the release "includes any claim made or that could have been made in any proceedings". The wording of the release did not include causes of action which arose after the effective date of the release. Even if that conclusion was incorrect, the release of claims of solicitor's negligence in the prosecution of an IAP claim could not reasonably have been in the contemplation of the parties. The action was not an abuse of process.
Cases referred to
Biancaniello v. DMCT LLP (2017), 138 O.R. (3d) 210, [2017] O.J. No. 2468, 2017 ONCA 386, 1 C.P.C. (8th) 1, 2017 D.T.C. 5061, 411 D.L.R. (4th) 367, 67 B.L.R. (5th) 32, 278 A.C.W.S. (3d) 517; Fontaine v. Canada (Attorney General) (December 15, 2016), Toronto, ON, File No. 00-CV-192059CP (S.C.J.); Fontaine v. Canada (Attorney General), [2017] O.J. No. 1991, 2017 ONSC 2487 (S.C.J.); Fontaine v. Canada (Attorney General), [2018] B.C.J. No. 537, 2018 BCSC 471; London and South Western Railway v. Blackmore (1870), L.R. 4 H.L. 610, 23 L.T. 504; Sinclair-Cockburn Insurance Brokers Ltd. v. Richards (2002), 61 O.R. (3d) 105, [2002] O.J. No. 3288, 162 O.A.C. 390, 40 C.C.L.I. (3d) 196, 24 C.P.C. (5th) 273, 116 A.C.W.S. (3d) 357 (C.A.); Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, [2003] S.C.J. No. 64, 2003 SCC 63, 232 D.L.R. (4th) 385, 311 N.R. 201, J.E. 2003-2108, 179 O.A.C. 291, [2003] CLLC para. 220-071, 17 C.R. (6th) 276, REJB 2003-49439, 120 L.A.C. (4th) 225, 2003 RTQ para. 10,260, 59 W.C.B. (2d) 334
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(3)(d)
MOTION to dismiss an action as an abuse of process.
Margaret Waddell and W. Cory Wanless, for plaintiff/responding party. Geoffrey D.E. Adair, for defendants/moving parties P. James Wallbridge and Wallbridge, Wallbridge.
GORDON J.: —
Overview
[1] P. James Wallbridge and Wallbridge, Wallbridge (the "Wallbridge defendants") ask that this action be dismissed as against them on the ground that it is an abuse of the process of the court. It is their position that the plaintiff's action is barred by paras. 15 and 19 of the Approval Order of Winkler R.S.J. (as he then was) made December 15, 2006, in the case of Fontaine v. Canada (Attorney General) (December 15, 2016), Toronto, ON, File No. 00-CV-192059CP (S.C.J.) (the "Approval Order").
Background Facts
Brief summary of the plaintiff's claim
[2] The plaintiff is a survivor of St. Anne's Indian Residential School ("St. Anne's").
[3] In 2009, he retained the Wallbridge defendants to bring an IAP claim to seek compensation for the harms he suffered at St. Anne's. Following his hearing, his application was rejected on the basis that his evidence was not sufficiently reliable. The Wallbridge defendants continued their representation of the plaintiff at a review hearing, but this too was unsuccessful. The plaintiff says he was devastated by the rejection of his claim.
[4] The plaintiff subsequently retained new counsel and was able to secure a rehearing of his claim before a new adjudicator. At the new hearing, the plaintiff was successful and was awarded compensation on the basis of having suffered "Level 5" sexual abuse, which is reserved for the worst forms of sexual assault.
[5] The action before the court is not to address the harms suffered by the plaintiff at St. Anne's. He acknowledges that by virtue of the rehearing he has already received all of the compensation to which he is entitled for those injuries.
[6] In this action the plaintiff seeks to address the personal harms he says he suffered as a result of the negligence of the Wallbridge defendants in their representation of him. He says that the experience of having to testify about and relive the horrific abuse suffered by him, only to be disbelieved, had a devastating psychological effect that rendered him depressed and suicidal, requiring his hospitalization. He says that had the Wallbridge defendants done their job properly in the first instance he would have been believed, as he subsequently was, and have avoided the depression that came following the initial dismissals of his claim.
The IRSSA and the release of claims
[7] The Indian Residential Schools class actions were settled, subject to court approval, on May 8, 2006, by an agreement known as the Indian Residential Schools Settlement Agreement ("IRSSA"). On December 15, 2006, the IRSSA received court approval in Ontario by order of Winkler R.S.J (as he then was). This Approval Order incorporated the release provisions negotiated by the parties to the IRSSA.
[8] For the purposes of this motion, the relevant provisions of the Approval Order are as follows [at paras. 15 and 19]:
THIS COURT ORDERS AND DECLARES that . . . each Class Member . . . have released and shall be conclusively deemed to have fully, finally and forever released the Defendants . . . from any and all actions, causes of action . . . asserted or which could have been asserted whether known or unknown including for damages, contribution, indemnity . . . which they ever had, now have or may hereafter have, directly or indirectly or any way relating to or arising directly or indirectly . . . in relation to an Indian Residential School or the operation generally of Indian Residential Schools.
THIS COURT ORDERS AND DECLARES that each Class Member . . . shall not make any claim or take any proceeding against any person . . . in connection with or related to the claimed released pursuant to paragraph 15 of this judgment, who might claim or take a proceeding against the Defendants . . . for contribution or indemnity . . . A Class Member who makes any claim or takes any proceeding that is subject to this paragraph shall immediately discontinue such claim or proceeding and this paragraph shall operate conclusively as a bar to any such action or proceeding.
[9] The question before me is whether the cause of action asserted against the Wallbridge defendants falls under the claims released by virtue of the Approval Order.
The Applicable Law
[10] The plaintiff's motion is brought under rule 21.01(3)(d) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which provides that a party may move before a judge have an action stayed or dismissed on the ground that the action is, among other things, an abuse of process.
[11] An abuse of process is the misuse of the court's procedure in a manner that [at para. 37] "would be manifestly unfair to a party to the litigation before it or would in some way bring the administration of justice into disrepute". (See Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63.) The doctrine of abuse of process had been used to dismiss an action on the ground that the plaintiff had promised not to maintain such an action in a release given to another. (See Sinclair-Cockburn Insurance Brokers Ltd. v. Richards.)
[12] The principles to be applied when interpreting a release were recently reviewed by the Ontario Court of Appeal in Biancaniello v. DMCT LLP, 2017 ONCA 386. The court began by reciting from the seminal decision on the proper approach to the interpretation of a release in London and South Western Railway v. Blackmore (1870), L.R. 4 H.L. 610, 23 L.T. 504: "The general words in a release are limited always to the thing or those things which were specifically in the contemplation of the parties at the time the release was given." The court went on to distill five principles for use when determining what was in the contemplation of the parties when the release between them is broadly worded:
(1) One looks first to the language of a release to find its meaning. (2) Parties may use language that releases every claim that arises, including unknown claims. However, courts will require clear language to infer that a party intended to release claims of which it was unaware. (3) General language in a release will be limited to the thing or things that were specifically in the contemplation of the parties when the release was given. (4) When a release is given as part of the settlement of a claim, the parties want to wipe the slate clean between them. (5) One can look at the circumstances surrounding the giving of the release to determine what was specifically in the contemplation of the parties.
Analysis
[13] For the Wallbridge defendants to have the benefit of the releases contained in paras. 15 and 19 of the Approval Order, the following requisites would have to be met:
(1) The plaintiff must be a class member. (2) The Wallbridge defendants must be a defendant named in the approval order or a person who might claim contribution or indemnity from a defendant named in the approval order. (3) This action must be a claim or proceeding released in para. 15 of the approval order.
[14] The plaintiff concedes that the plaintiff is a class member as defined in the Approval Order.
[15] Canada is also a defendant in this action. It is clear from the nature of the allegations made against the Wallbridge defendants and Canada that the Wallbridge defendants might claim contribution or indemnity from Canada.
[16] The bigger issue is whether this claim falls within those claims released by virtue of the Approval Order. In my view, it does not.
[17] Although the wording of the releases is broad and general, their proper interpretation requires a careful analysis of the distinction made between a "cause of action" and "damages".
[18] A cause of action may be defined generally as a factual situation entitling a person to obtain a remedy against another in court. Damages are often the remedy sought and arise out of the cause of action. Depending on the cause of action, damages may address past, present and/or future losses arising therefrom.
[19] The release at para. 15 of the Approval Order, when speaking to causes of action, provides for the release of " . . . any and all actions, causes of action . . . asserted or which could have been asserted whether known or unknown . . . and this release includes any such claim made or that could have been made in any proceedings . . ." (emphasis mine). It does not specifically include causes of action arising in the future.
[20] On a plain reading of para. 15 of the Approval Order, the release of causes of action is therefore restricted to factual situations which had already come to pass when the Approval Order was signed. The releases could not and did not release causes of actions or claims relating to factual situations which had not yet occurred.
[21] This is to be contrasted with the release provisions pertaining to damages, which provide for the release of ". . . damages . . . which they ever had, now have or may hereafter have, directly or indirectly . . ."
[22] The effect of paras. 15 and 19 of the Approval Order is to release the defendants from all damages, past, present or future, arising from causes of action or claims that had been asserted or could have been asserted, whether known or unknown.
[23] In my view, the wording of the release does not include causes of action which arise after the effective date of the release even if in some way related to an Indian Residential School or the operation generally of Indian Residential Schools.
[24] Even if I am incorrect in this interpretation of the release provisions of the Approval Order, it is my view that the release of claims of solicitor's negligence in the prosecution of an IAP claim could not reasonably have been in the contemplation of the parties. As stated by the plaintiff in his factum: "It is inconceivable that in 2006, in the context of settling a class action brought by Indian Residential survivors against those who established and operated Indian Residential Schools (namely Canada and a number of Church organizations) for the various abuses and harms suffered by survivors when they were students at these schools, Canada, church organizations and representatives for Residential School survivors intended to draft a release that provides total and blanket immunity to future IAP claimant lawyers for malpractice claims that would deprive survivors from their right to sue their IAP lawyers . . . ."
[25] I note that in Fontaine v. Canada (Attorney General), 2017 ONSC 2487, Justice Perell, the Eastern Administrative Judge for the IRSSA, noted on several occasions that the proper venue for a negligence claim against a lawyer arising from the manner in which an IAP claim was conducted is to bring a civil action in the Superior Court of Justice. Similarly, Justice Brown, the Western Administrative Judge for the IRSSA has intimated that a remedy for harms caused by a lawyer who mishandled an IAP claim would be sought in a solicitor's negligence lawsuit outside the IRSSA (see Fontaine v. Canada (Attorney General), 2018 BCSC 471). Neither judge expressed any concern that such claims would be released by virtue of the IRSSA and the applicable Approval Orders.
Conclusion
[26] The plaintiff's claims against the Wallbridge defendants are not released by virtue of the IRSSA or the Approval Order. It follows that the plaintiff's action is not an abuse of process and the motion must be dismissed.
[27] If the parties are unable to agree on costs they may make written submissions, not to exceed three pages plus attachments each, within 45 days.