PETERBOROUGH COURT FILE NO.: CV-14-84

DATE: 20231130

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DARLENE PADDY-CANNON, ROSEMARIE ETHEL CHRISTIE and SHARON GERALDINE CANNON

Plaintiffs

– and –

THE ATTORNEY GENERAL OF CANADA and KATHERINE CANNON

Defendants

Darlene Paddy-Cannon, Rosemarie Christie and Sharon Cannon, Acting in Person

Daniel Luxat, Counsel for the Defendant, The Attorney General of Canada

Michael Pretsell, Counsel for the Defendant, Katherine Cannon

HEARD: January 23, 24, 25, 26, 27, 30, 31, February 2, 3, 7, 8, 9 and March 31, 2023

REASONS FOR JUDGMENT

FRASER J.:

I. Introduction

[1] This case is about whether the Defendant, Katherine Cannon, abused the Plaintiffs while they were in her care between 1965 and the mid-1970’s. It is also about whether the Attorney General of Canada (“Canada”) owed and breached a fiduciary duty to the Plaintiffs.

[2] On February 7, 2022, the Court of Appeal for Ontario allowed the Plaintiffs’ appeal from the judgment of the first trial of this matter. This is the judgment following the re-trial.

[3] In September 1964, Gerald Cannon took his four young children from Alberta by train to the small town of Maynooth, Ontario, to live with his mother Ethel Cannon who was to care for them. The children’s mother, Marie Paddy, stayed behind. Gerald, was of Irish descent, and had a large extended family in Maynooth. Marie was a Cree (nêhiyaw) woman from the Thunderchild First Nation in Saskatchewan. Marie and Gerald had been in a common law relationship for many years and together had four children, all girls, in five years. Marie also had a son from a previous relationship. Three of those four girls eventually lived in the house and care of the Defendant Katherine Cannon.

[4] The four children had been the subject of a temporary wardship order and, when it ended, the child welfare service of Alberta released the children to Gerald, knowing of his plan to take the children to Ontario. The Plaintiffs are three of those four children: Sharon, born in 1959, Darlene born in 1960, and Rosemarie (Rosie) born in 1963. The fourth child, born between Darlene and Rosie, is not a party to this lawsuit.

[5] Marie struggled with her use of alcohol. While no mention of it was made in the records made at the time, Marie was a residential school survivor. Despite Marie’s many attempts to be reunited with her children, they would not all be together again until a reunion in 1993.

[6] Sharon has memories of her early childhood with both her parents when they lived out West. She expressed them in a way that presented them as verbal snapshots of her childhood: riding on the hood of a car, having fun at Pow Wow with her mom in a pretty dress, lots of people attending Pow Wow, travelling in the old truck eating grapes, travelling to Thunderchild First Nation to see a large extended family and being with her grandmothers, one of which would pick gooseberries and give them out as treats. She remembered gatherings and a log cabin house that her parents once bought. She also remembers speaking Cree with her sisters.

[7] Unfortunately, soon after Gerald arrived in Maynooth with his children, Ethel passed away. Some of Gerald’s family decided that they would care for the children, except for the eldest child Sharon. After being in different homes, Sharon was sent to live in a convent in Combermere, Ontario, at the age of six. Darlene came to live with the Defendant, Katherine Cannon, and her husband, Vern, who was one of Gerald’s brothers. They had two children of their own. Rosie, too, would soon come to live at Vern and Katherine’s house.

[8] The fourth sister went to live with another of Gerald’s brothers and his wife.

[9] In October 1969, a local children’s aid society formally placed Sharon with Vern and Katherine under a foster care agreement for which Katherine was paid a daily rate to care for Sharon.

[10] Sharon, Darlene, and Rosie allege that Katherine abused them emotionally and physically during the time they were in her care. They did not sue Vern as they say that the abuse did not happen when he was around.

[11] The Plaintiffs left Katherine and Vern’s home soon after they were legally able to do so and never returned. After they left, Katherine did not reach out to them and the Plaintiffs did not reach out to her.

[12] The Plaintiffs allege, among other things, that Katherine beat them with a belt and a razor strap. They claim that Katherine disparaged their Indigeneity, calling them dirty Indians, forced them to work with her as a janitor, treated them as servants in contrast to her own children, deprived them of the use of their real names, and deprived them of their heritage.

[13] Katherine denies these allegations and asserts that she took the children in as an act of charity and that she treated them equally to her own. She states that she never disparaged their identity. To the extent that there was hardship, this was because the children were expected to pitch in. They lived in a small house and did not have a lot of money. The children were expected to contribute to the household.

[14] The Plaintiffs also sue the Attorney General of Canada (“Canada”) for breach of fiduciary duty and negligence, alleging that it interfered with plans to return the Plaintiffs to the Thunderchild First Nation. The Plaintiffs assert that Canada’s decision resulted in emotional and physical harm to them, and a loss of connection to their culture and family.

[15] During their time in Ontario, Canada was made aware of concerns about the children’s situation. A plan was developed for the children to be returned to maternal relatives on the Thunderchild First Nation. However, that plan was shelved, and the children remained with Katherine, each of them leaving her home one by one before graduating high school.

[16] There is another issue in this matter. In or about the mid-1990’s Katherine began identifying publicly as an Algonquin woman and eventually was elected Chief of her community which was part of the Algonquins of Ontario. The Plaintiffs state that Katherine falsely claims this heritage, thereby depriving First Nations persons of opportunities and marginalizing them. They assert that this should negatively impact my assessment of her character, credibility, and reliability. Further, the Plaintiffs assert that Katherine’s claim to be a First Nations person aggravated the harm done to them.

[17] It is important to explain the nomenclature I will use in this Judgment. I use the word “Indian”. I do so when I quote a witness or a document and when referring to Indian Status or the Indian Act, R.S.C., 1985, c. I-5. Similarly, I may also use the words “Aboriginal” or “Native” where they have been used in other judgments or where I am quoting a witness or from a document. I use “Indigenous” to describe First Nations, Métis, and Inuit persons. When referring to First Nations persons, I will primarily use the term First Nations. I use the specific terms, “nêhiyaw” and “Cree,” to particularize the Plaintiffs’ heritage as their self-identified nation and the term “Algonquin,” as the Defendant, Katherine Cannon, claims this heritage.

[18] I will also be referring to the parties in this judgment by their first names to ensure that there is no confusion about whom I am speaking.

II. Issues

[19] The issues that I must decide are as follows:

a. Did Canada owe a fiduciary duty or duty of care to the Plaintiffs?

b. Does Katherine Cannon’s identification as a First Nations person impact this case?

c. Did Katherine Cannon abuse the Plaintiffs?

d. Are the Plaintiffs entitled to damages from either of the Defendants?

[20] I will first examine the case against Canada and the decisions that Canada made. Next, I will assess the claims against Katherine Cannon. After doing that, I assess the harm alleged and the damages claimed.

III. The Plaintiffs’ Claim Against Canada

[21] The Plaintiffs assert that Canada owed them a duty of care and had a fiduciary duty towards them and that it breached those duties. Specifically, Canada breached its duty by cancelling plans to return them to their First Nations community in Saskatchewan. Canada’s involvement with the family is recorded in documents tendered as ancient documents. Canada argues that it did not have the power to determine the fate of the children while they resided in Ontario, and that the decision for the children to remain in Ontario was not made by them.

[22] The involvement of Canada is detailed in its records and the records of two local children’s aid societies. I will review the chronology of decisions made and taken before examining whether Canada owed a duty and whether it breached it.

A. Chronology

(i) Plaintiffs’ Arrival in Ontario

[23] Sharon Geraldine Cannon was born on January 12, 1959, in Rocky Mountain House, Alberta. There is a second record that states that she was born on February 6, 1959. This and other discrepancies will be explored later. On her statement of live birth, her mother is listed as Marie Paddy and her racial identity is listed as Indian. Darlene Marie Cannon was born on February 5, 1960, in Rocky Mountain House, Alberta. Rosemarie Paddy was born on March 8, 1963, in Elk Point, Alberta.

[24] The children arrived in Ontario at their grandmother’s house in 1965 and were well received there. Gerald was from a large family of 11 children and Katherine from a family of 13 children. There is a debate about whether the children arrived with impetigo. However, whether they did or not is of no importance in my view because impetigo is a common childhood infection and does not reflect whether a child is well cared for.

[25] The Plaintiffs report that their grandmother was loving and caring. Unfortunately, she became sick with cancer and died shortly after their arrival. Gerald could not care for the children on his own and the Cannon family decided that the children would be split up. The sister who is not a Plaintiff to this action, went to live with an uncle and his wife. Sharon was sent to a convent in Combermere, Ontario. Darlene and Rosie eventually came to live with Katherine, Vern and their children, Karen, and Susan, such that they had six people living in a small house.

[26] The house was close to St. Ignatius Roman Catholic Church. The local parish priest, Father Casertelli, and the church played a big role in the family’s life. I will later describe the memories of the parties about this time when I address the allegations of abuse. What follows is the history of Canada’s involvement with the family.

(ii) Madeleine O’Brien Expresses Concerns

[27] On September 7, 1965, Madeleine O’Brien of Maynooth, Ontario, wrote to the North Battleford Indian Agency about Gerald’s children. Mrs. O’Brien was the housekeeper to Father Casertelli, whose house was adjacent to that of Vern and Katherine Cannon. Mrs. O’Brien wrote:

Unfortunately, I do not have your name, but the address of your agency only.

This letter is in connection with a child I have in my care whose name is Sharon Geraldine Cannon, illegimate (sic) daughter of one Marie Paddy # 303, Thunderchild Band.

The history of this case is as far as I can gather is briefly this: Some seven years or so back a white man – Gerald Joseph Cannon, [illegible] up a common-law relationship with Marie Paddy, I believe at Rocky Mountain House, Alta. (Incidentally Cannon comes from this village, and is now back here) through this C/L union there are four children all girls. I am not too clear on the exact picture, but his story is that the girl had previously been married and had several other children. However, he was not aware of this at the time he went to live with her. Be that as it may, after some six years of living together, she supposedly packed up and left him. She is reputed to be an alcoholic and I think was receiving treatment for some sort of a psychosis as well as in some institution in Alta. In any event he states that the judge of the Juvenile Court in Edmonton gave him custody of all four children, and he forthwith brought them here to his mother, but she died about May of this year and the children were scattered to the various members of his family. Well, the fact of the matter is that none of the children look Indian except Sharon and as a result of this, I am convinced, she has had a pretty rough time. She is the most beautiful little thing you could ever want to see and as are the majority of Indian children as good as gold and I have every intention of keeping her God willing.

Yesterday, I took the precaution of having Sharon checked by my doctor and it was found that she has quite a serious heart condition and arrangements are now underway to have her admitted to the Sick Children’s Hospital in Toronto. The doctor feels that perhaps surgery will be required – the condition is obviously congenital – and I am wondering to what extent the Dept. of Indian Affairs will help financially if it becomes necessary. I have hospital coverage for her under her father’s policy. However, I am wondering about P.S.I. and drugs if ordered. She is also in need of extensive dental work, for a baby of her age that is. I know that different agencys (sic) have different policies, and will you please tell me how if at all you are prepared to help me with this little girl. Quite frankly I hate like the devil trying to deal with the Province especially on an inter-Provincial set up as this is.

I shall look forward to hearing from you at your earliest and whether you will help or not will you send me some proof of the fact that she is a Treaty Indian and her band number. The poor baby has little enough and I want her at least to have her birthright and as I said earlier the information I have is pretty sketchy and any factual information you can give me I shall be grateful for.

For your information I may say that I am a social worker and over the years I have had a great deal to do with Indians in B.C. (10 yrs) and latterly in James and Hudson’s Bays.

Oh yes, what tribe does Marie Paddy belong to? Is she Cree?

Cordially yours,

(Mrs.) Madeleine O’Brien

[28] On September 14, 1965, D. Greyeyes, Superintendent of the Battleford Indian Agency, wrote to Mrs. O’Brien, advising her that Sharon was born February 6, 1959, and that regarding her concerns about Sharon’s welfare, he was referring the letter to the Regional Director of Indian Affairs for Saskatchewan.

(iii) Gerald Cannon Seeks Assistance

[29] A November 24, 1965, Indian Affairs memorandum records that Gerald advised the Belleville Children’s Aid Society (“CAS”) that his wife had disappeared leaving him with four children. The memo reflects that all the children were registered as Indian except Darlene and that Sharon was registered as Sharon Geraldine Paddy. The memorandum states that Gerald indicated that he did not intend to maintain the children and that the local CAS expected that they would be taken into care. I note that the proper name of the CAS at the time was The Children’s Aid Society of the City of Belleville, the County of Hastings and the Town of Trenton and I abbreviate this throughout as the Hastings CAS. Where there is a reference to the Belleville CAS, it is because that is how it is written in the document quoted. This society would later become the Kawartha Lakes CAS.

[30] The Director of the local CAS wanted to know whether Marie Paddy’s family on the Thunderchild Reserve might be prepared to give the children a home. He understood that they would.

[31] On November 29, 1965, Gerald wrote to the Battleford Indian Agency from Scarboro, Toronto, looking for information on the children of Marie Paddy. He advised the Indian Agency that the Children’s Aid Society of Edmonton took charge of the children in the summer of 1965, when they found Marie unfit to look after them. In the letter, he described Marie as his common law wife and that the Edmonton CAS turned the children over to him. Gerald claimed to have cared for the children with his mother until she passed away “a few months ago”. Gerald informed the Indian Agency that he was not steadily employed and that he did not have anyone to care for the children, so he went to the Hastings CAS.

[32] Gerald recounted that the Hastings CAS had informed him that as the children were “under treaty”, he did not have any legal claim to them at all and the Indian Dept. was still responsible for them. Gerald inquired about benefits for hospitalization and treaty money for them. He advised that he needed assistance with the children at least until he could get a house and a “lady” to care for them.

[33] On December 2, 1965, Mr. D. Greyeyes, the Superintendent of the Battleford Indian Agency, replied to Gerald by letter advising that the children’s treaty money was paid to Marie and that if he required assistance for the children and did not live on reserve, he would have to apply in the municipality where he resided. Mr. Greyeyes’ reply made no comment on the issue of whether he had a legal claim to the children or whether the Indian Dept. was responsible for the children.

[34] On December 14, 1965, by Memorandum, the Regional Director of Indian Affairs, Saskatchewan, wrote to the Regional Supervisor of Social Programs, Indian Affairs, Toronto, acknowledging the November 24, 1965, memorandum regarding Marie Paddy’s children. The Regional Director identified “misinformation”, noting that Mrs. O’Brien had assumed responsibility for Sharon, taking care of her during the holiday periods and that she was enrolled at St. Mary’s Convent in Combermere, Ontario. It addressed the issue of Sharon’s heart problem and noted that it was providing educational assistance and that Mrs. O’Brien reported that National Health and Welfare declined to take responsibility for medical services for Sharon.

[35] The Regional Supervisor advised that the Battleford Indian Agency was attempting to locate Marie, who approached the agency some time ago about having her children returned, but did not return to follow through on her request. The Regional Supervisor undertook to ascertain if there were relatives willing to care for her children. Finally, the Regional Supervisor wrote that, “[i]n the meantime, the Children’s Aid Society should be advised to apprehend if neglect is severe, and we will assume financial responsibility for the maintenance of the children while they are in care.”

(iv) Plans are Made for the Return of the Children

[36] On February 7, 1966, Bruce Kerr, the Director of the Hastings CAS wrote to Mr. Greyeyes, advising that in 1964, the children had been in the care of the Department of Welfare in Edmonton and that they were released to Gerald’s care and brought to his mother’s care. Mr. Kerr advised that, “[w]hile there is no neglect of the children at this moment, Gerald Cannon has, by letter, indicated he will no longer assume any responsibility for them, and they are indeed at the mercy of strangers. Would you be kind enough to discuss with Miss Paddy, at the earliest moment possible, what plans, if any, she may have for them?”

[37] Mr. Greyeyes replied by letter dated March 3, 1966, that they had been unsuccessful in contacting the mother but that they had been in touch with immediate relatives of the children who expressed the desire of taking custody of them. Mr. Greyeyes advised that, “we believe it would serve in the best interest of the children if [they] were returned to their home reserve.” The letter advised that plans would be finalized through the Regional Welfare Office. Canada placed no correspondence or records before the court showing what efforts were made to contact Marie. No records of the treaty payments were tendered.

[38] On March 25, 1966, the Officer-in-Charge of the Battleford Indian Agency, D.H. Anderson, wrote to the Regional Director directing that the Assistant in Charge of the Thunderchild Reserve approach the Band Council to confirm that arrangements had been completed for the children’s welfare when they return.

[39] It is clear from this memo that Canada put in motion plans for the children’s return to the reserve.

[40] On April 1, 1966, K.J. Gavigan, the Acting Regional Director of Indian Affairs, Saskatchewan, responded noting that Sharon was in the care of Mrs. O’Brien and that she was providing a good home for her. They advised that Sharon not be removed from the security of Mrs. O’Brien’s home. Acting Regional Director K.J. Gavigan requested that D.H. Anderson discuss the matter with relatives and let them know the name of the female relative who would be prepared to make the trip to Ontario to escort the remaining three children home. A note to file recorded that Katherine Okanee, of Band #225, would escort the three children home any time that the agency was ready.

[41] These two notes reflect two things. First, that Canada was making decisions in respect of the children in consultation with the Thunderchild First Nation. Second, that Canada determined that Sharon’s care arrangements should not be disrupted. As only three children were going to be returned out of the four, a decision was made to leave Sharon with Mrs. O’Brien.

[42] On that same day, Mr. Gavigan, wrote to Mr. Kerr of the Hastings CAS advising that they were in the process of making the arrangements for the return of the children to the reserve. He invited comment on whether Sharon was doing well with Mrs. O’Brien. He advised that as soon as his agency had made the arrangements for the placement, they would advise when the escort would arrive.

[43] On April 16, 1966, Mrs. O’Brien wrote to Indian Affairs again expressing her concerns over the fate of the children. She advised that they were a financial burden to everyone who had anything to do with them. She described that two of them were in a home with one of the Cannon brothers and seemed to be reasonably well accepted, except for being a financial burden and that the other child was also in a Cannon home but definitely not wanted and that Sharon was not accepted by any of them. She informed the agency that Sharon was not happy there and always talked about going home to her mommy. She inquired about solutions, as she said the CAS had left it to her to continue the correspondence from here on and stated, “[f]rankly, I don’t think they could care less.”

[44] On April 22, 1966, W.D.G. McGaw, the Regional Superintendent of Development, Indian Affairs, wrote to Mr. Kerr of the Hastings CAS advising that in view of Mrs. O’Brien’s correspondence, they felt it desirable that Sharon return with the other children and advised that Ms. Okanee was prepared to travel to escort the now four children back to the reserve and asked him to make arrangements for the children’s return.

(v) Plans for the Return Are Shelved

[45] On May 4, 1966, Mr. Adamson, the Director of the Hastings CAS, wrote back stating that the Cannon men had attended at the agency and asked that the plan to return the children be held in abeyance. The “Messrs. Cannon” wanted only the authority to sign for medication and surgical services in addition to covering medical insurance. Mr. Adamson continued, “our view is that only the mother can give such a consent and that legally these people have no particular status in relation to the Paddy children.”

[46] Katherine Cannon stated that Vern and Gerald attended at the CAS offices. She herself did not attend.

[47] Indian Affairs proposed to the Hastings CAS that it apprehend the children, and Indian Affairs would pay the per diem rate while the children were in the care of the Hastings CAS. The Battleford Indian Agency was also prepared to make foster care arrangements on the reserve in the event of a return of the children. Mr. Adamson of the Hastings CAS replied on May 24, 1966, by letter to state that the “foster” parents have not said that they will no longer look after them and that they did not intend to apprehend them.

[48] On May 26, 1966, Mr. McGaw of Indian Affairs sent a memo to the Superintendent of the Battleford Indian Agency attaching Mr. Adamson’s letter and stated:

…you will note that the relatives of Gerald Cannon intend to continue caring for the above children. As the Society states that protection is not indicated at the present time, plans for the return of the children to Saskatchewan are shelved.

[49] The Plaintiffs assert that it was Canada who made the decision to shelve the plans. They argue that Canada, and Canada alone, put the plan in motion to return them to Thunderchild First Nation, and that Canada terminated that plan when they were advised that the children were being cared for.

[50] Canada states that we must interpret this as the local CAS deciding not to apprehend and that it was not for Canada to interfere.

(vi) Marie Paddy Asks for Her Children Back

[51] On August 8, 1966, Marie Paddy wrote to the Superintendent of the Battleford Indian Agency informing him, “I want my four children, Sharon, Darlene, [third child], and Rose Marie, returned to me. I am now residing on my home Reserve.”

[52] No evidence of a direct reply to Marie was adduced in evidence. However, on August 19, 1966, Mr. Greyeyes of the Battleford Indian Agency wrote to the Regional Director of Indian Affairs, attaching Marie’s letter and advised, “[w]e would strongly recommend that Ms. Paddy’s wishes be complied with.” The Regional Director wrote back requesting information on Marie’s time in a mental health facility. The Regional Director requested more information in order to be confident in recommending that the children be returned to their mother. Mr. Greyeyes then sought this information directly from the “Indian Hospital” in North Battleford, Saskatchewan.

[53] Again, there is no evidence of any direct communication with Marie. There was no letter to advise that there was no legal barrier to her children being returned to her. What was going on outside of the correspondence remains unknown.

[54] Dr. Webb of the Indian Hospital replied on August 29, 1966, stating that he had no evidence that Marie had been treated in a mental hospital but that she had received treatment for alcoholism and delirium tremors in Edmonton in January 1966. He was unable to comment on her medication, condition, or prognosis. However, Dr. Webb had reached out to a public health nurse from Onion Lake, a community near Thunderchild First Nation, who hesitated to recommend that the children be returned. He stated, “[f]rom previous experience, she is not an overly good mother, and we can see little optimism at this stage for the results of such a move. Possibly everything is different now, but we have no evidence to indicate this.” He was agreeable to obtaining further information if requested. It appears that no one informed Dr. Webb that there had been a plan for the children to be placed with close relatives of Marie Paddy.

[55] Further information appears to have been sought both from Marie’s father and Chief, Norman Sunchild. They were of the opinion that Marie would not care for her children. By Memorandum dated September 14, 1966, D.H. Anderson, the Officer-in-Charge of the Battleford Indian Agency, recommended that the children remain where they were until further notice from the agency. At the time of the writing, Marie’s whereabouts were unknown. His memo referred to her children being in the care of foster parents in Ontario, although there were no formal foster care arrangements in existence.

[56] It was argued that Marie Paddy could have come to Ontario to get her children any time she wanted to. I disagree. The Indian Affairs correspondence demonstrates that Indian Affairs was making decisions about whether Marie could have her children or not. It does not matter that they made no legal decisions. They did not tell her what her rights were. There was no timely reply to Marie. There was no evidence that she was made aware of the discussions going on behind the scenes, or that there had been plans to bring the children back to the reserve.

[57] Even if she fully understood where her children were living, she appears to have had no means to get to Ontario to see or retrieve her children herself.

[58] The children were also never made aware that their mother wanted them.

(vii) Sharon is Made a Crown Ward

[59] Months went by and on February 1, 1967, Marie again wrote to the Battleford Indian Agency inquiring about her girls in Ontario. The letter was received by the Indian Agency on February 13, 1967. She wanted to know how they had been and to have them back, noting that, “they are still treaty and on my name”. She noted that she had no house of her own in Thunderchild First Nation. She stated that she was working at a farm in Vegreville, Alberta, and trying to get straight. She requested an answer to her letter.

[60] The record is silent until February 10, 1967, when Indian Affairs reached out to Mr. Kerr of the Hastings CAS relating to Sharon’s heart surgery. Father Casertelli had visited Indian Affairs and advised that consent for Sharon’s surgery could not be secured. He had located Gerald, but he refused to sign for the surgery. The letter noted that Sharon required surgery and medical consent could not be obtained. Indian Affairs asked that Sharon be made a temporary ward of the Society for this purpose. Contact information for Father Casertelli was provided.

[61] On February 13, 1967, D.H. Anderson, the Acting Superintendent of the Battleford Indian Agency wrote to Marie advising her of Sharon’s heart condition and the need for surgery. Acting Superintendent Anderson enclosed medical consent forms for the children. He noted that Marie wanted her children returned and conveyed:

When you have returned to your home reserve and have established satisfactory home conditions, we would suggest that you can then renew this request. It will then be considered in the light of the circumstances at that time.

[62] The letter was sent to Vegreville, Alberta, and was returned as, “not called for”. They again tried to reach her by registered mail and there was no reply. Indian Affairs assumed that she had not called for her mail.

[63] On March 7, 1967, the Local Director of the Renfrew County Children’s Aid sent a Notice of Hearing to Mr. Greyeyes of Indian Affairs enclosing a Notice of Hearing for March 17, 1967. The hearing was to determine whether Sharon Geraldine Paddy was in need of protection. He asked that it be served on Marie. Under the Child Welfare Act, 1965, 1965 S.O. c.41 (“Child Welfare Act, 1965”), Marie would have been required to attend in person at the hearing. It likely would have been impossible for her to receive notice and attend, since she appears to have been relying on a General Delivery mailbox. (General Delivery is and was a service were a person who did not have their own address for postal service could have their mail sent to the “General Delivery” where the mail could be called for under the person’s name.) By Order of the Juvenile and Family Court of Renfrew, dated March 17, 1967, Sharon was made a ward of the Crown under s. 25 (c) of the Child Welfare Act, 1965, which provided:

Where the judge finds the child to be a child in need of protection, he shall make an order,

(c) that the child be made a ward of the Crown until the wardship is terminated under section 31 or 34 and that the child be committed to the care of the children’s aid society having jurisdiction in the area in which the child was taken into the protective care of the society.

[64] While it was intended that Sharon become a temporary ward, she was accidentally made a permanent ward of the Crown. The Order states that the finding was made because the evidence established that Sharon was in immediate need of heart surgery and that Sharon was the child of an unmarried mother, “who is unable to make permanent plans for her child”. Sharon was thereby committed to the care of the CAS of Renfrew.

[65] Section 24(1) of the Child Welfare Act, 1965 mandates that the court, in making a protection order, determine the child’s name, age and religious faith and the location where the child was taken into protection. Despite that, Sharon was baptized a Roman Catholic and lived in a convent. The Court declared in the Crown Wardship Order that Sharon was a Protestant, which only later was rectified.

[66] On March 22, 1967, Marie wrote to Mr. D.H. Anderson:

Sorry I never answered any sooner. But I sure glad you wrote.

Look. Anderson. I am not signing my name on them paper which you told me to do. Because I like to have them back.

So I am going to writing to Gerald and tell him to bring the kids back. He was the one who take them there. And they are still on my name and I want them back. Furthermore, he had no business to take them and he was the one who started drinking so I am trying my best to get them back. I love the girls and I mean it. I was the one that bring them up in this world.

So I better sign off till I heard from you and please answer soon, and write to Gerald Cannon at Renfrew, Ontario.

I hope I heard (sic) from you soon.

Signed Marie Paddy, Gen. Del. Vegreville, Alberta.

Sorry I can’t answer sooner I was at Charles (illegible) Hospital.

[67] Indian Affairs learned around this time that when Gerald had taken the children to Ontario in 1965, that Marie, “went off the deep end” and was in the Indian Hospital in Edmonton. Indian Affairs also learned that in March 1967, Marie read a letter from a relative saying that Sharon had died on March 17, 1967 (the date of the wardship) which precipitated a further admission to hospital for alcoholism. It is not clear whether Marie was misinformed, or whether Indian Affairs received misinformation about the event.

[68] Indian Affairs noted that they felt that they had had good homes when the plans were made for the return of the children to that end, they still believed that the children should be on their home reserve.

[69] In June and July 1967, the Renfrew County CAS requested that the Hastings CAS take over the supervision of Sharon.

(viii) Renewed Approach to Marie

[70] By letter dated November 30, 1967, the Renfrew CAS wrote to the Battleford Indian Agency, requesting assistance in finding relatives on reserve who would be willing to care for Sharon as none of the paternal relatives were willing and able to do so. Sharon was still enrolled in residential care in Combermere, Ontario. The Renfrew CAS sought to make permanent plans for her, including potentially adoption, and inquired into whether her mother’s situation had improved.

[71] On December 6, 1967, R.T. Smith, the Superintendent of the Battleford Indian Agency wrote to Marie about Sharon, attaching the November 30, 1967 Renfrew CAS letter. He advised her of Sharon’s surgery, that she had recovered and was back at the convent. He inquired about Marie’s plans for Sharon noting that options would include placement of Sharon with local relatives, placement in a foster home, and adoption. He made no mention of her other children and noted that, “you still retain the right to care for her yourself, provided that you have a suitable home”.

[72] On March 29, 1968, Herman Heilbron, a caseworker and Director of Research for the Renfrew CAS wrote to Mr. D.H. Anderson of the Battleford Indian Agency. He wrote requesting that he investigate the possibility of any relatives being willing and able to assume responsibility for Sharon. He noted that they had not been able to find a relative in the Maynooth area to assume guardianship. He advised that if there were no relatives on either side of this union who could help provide a permanent home for Sharon, they might have to proceed toward finding a permanent foster home for her. Mr. Heilbron stated that other options included that Sharon be placed for adoption. This did not mean that Sharon had to leave the convent. It was felt that the convent had provided her with security of consistent limits and a genuine interest in her welfare. They noted that the plans could not be finalized until all possibilities had been examined. This letter was forwarded from the Battleford Superintendent to the Indian Affairs representative at Onion Lake with the request that the mother or relatives be contacted for a response.

[73] By Memorandum from the Superintendent of the Battleford Indian Agency to T.F. Gallivan of Onion Lake, Saskatchewan, dated April 2, 1968, the Superintendent requested that Marie or any of her relatives be contacted to determine what their reactions were.

[74] On April 30, 1968, Renfrew CAS closed Sharon’s protection file. The closing summary suggested that the letters to the Indian Agency had not led to any clearcut information regarding Marie’s living activities and that she had no permanent address and would not be able to fulfill her role as mother to Sharon. It noted that, “no other relatives have been found, out there who express a desire to have this girl return there. In view of the marginal response that we have repeatedly received, and which indicated that prospects for Sharon to return to any of her maternal relatives or to her mother, are quite slim, this PROTECTION FILE CAN THEREFORE BE CLOSED.” [Emphasis in original document]. Renfrew CAS was seemingly unaware that there had been a plan for a return of the children and that relatives had come forward with a plan that had been shelved.

(ix) Sharon Becomes a Foster Child of Vern and Katherine

[75] On September 18, 1969, Bruce Kerr, the Director of the Hastings CAS wrote to the Renfrew CAS indicating that Sharon was a ward of the Crown in the care and custody of their society (the Renfrew CAS) and living in the home of her paternal uncle and aunt by marriage. They were requesting financial aid at the time. Hastings CAS was prepared to recommend Vern and Katherine’s home as an acceptable foster home and assume supervisory responsibility for Sharon. Their rate was $4.98 per day.

[76] On September 26, 1969, Renfrew CAS formally requested that Hastings CAS supervise Sharon’s care and that the foster care arrangement and rate were acceptable.

[77] Sharon’s care planning was transferred from Renfrew back to the Hastings CAS, who on October 1, 1969, entered into a foster care arrangement with Vern and Katherine Cannon: “Agreement Respecting Boarding a Foster Child, dated October 1, 1969, between Katherine and Vernon Cannon and the Hastings Children’s Aid Society”. The agreement reflects that the Cannons had agreed to accept Sharon into their home as of September 1, 1969, and that the Society agreed to pay them $1.75 per day and to furnish the child with clothing, medical, surgical, dental and other necessities. The agreement prohibited Katherine from engaging in gainful employment outside the home as long as Sharon remained in the home. At the time that Vern and Katherine entered this agreement, Vern was making somewhere between $0.93 to $0.98 per hour at his place of employment.

[78] There is a version of the signed agreement which contains handwritten notes after the signature line as follows:

Sharon Geraldine - $1.75 per day

Darlene Barbara - .50 per day

Rosemarie Ethel - .50 “ “

$2.75 “ “ = $82.50 per month

[79] In her examination for discovery, Katherine acknowledged the handwriting was her own and that it was written down years ago and adopted that position at trial. But she did not accept that there may have been additional money for Darlene and Rosie.

(x) Indian Affairs Contact about Care

[80] On May 7, 1971, the Renfrew CAS wrote to the Hastings CAS inquiring whether Sharon’s wardship could be terminated since she had been placed with relatives and that she had originally been made a Crown ward to ensure medical care. The Renfrew CAS inquired if the Hastings CAS could determine if the Department of Indian Affairs would assume financial and educational maintenance of Sharon. A note to the file reflects that a follow up call was placed to Belleville (Hastings) CAS on September 1, 1971.

[81] On September 13, 1971, Mr. Conlon, signatory to the Agreement to Board a Foster Child and Supervisor of the Hastings CAS responded by letter noting that Sharon had made satisfactory progress in the care of her relatives. Sharon was in grade seven and the principal at her school noted that Sharon had made very good progress both socially and academically. They noted that the Cannons had stated that they had become extremely attached to her but were reluctant to make a hasty decision [regarding termination of wardship] at the last meeting that they had had. The Cannons’ initial reaction had been that it would not be in Sharon’s interests for wardship to be terminated. Her father appeared in the Maynooth area from time to time, which could pose problems for Sharon and her adjustment as he might attempt to become reunited with her and they would have little power to oppose his wishes.

[82] On October 1, 1971, Mr. Conlon wrote to Renfrew CAS to advise that Katherine had confirmed their initial impression that it was both hers and her husband’s opinion that, based on a couple of months of thought, discontinuing Crown Wardship was not in Sharon’s best interests.

[83] On December 9, 1971, Marie wrote to the Superintendent of Indian Affairs in Battleford, Saskatchewan, requesting information on how she might begin proceedings to regain custody of her four children, whose names and dates of birth she provided, and raised issues about the lack of a reply to previous correspondence. She noted that the children were residing with her former common-law husband in Maynooth, Ontario.

[84] On December 22, 1971, Mr. Chopra, the District Supervisor of Social Services with Indian Affairs, wrote to the Renfrew CAS, acknowledging their correspondence wishing to terminate wardship and noting that Marie wanted to regain custody of her children. The letter noted that they were also assessing if they could return three of her children who were also temporary wards of the Minister.

[85] On January 14, 1972, Hasting CAS wrote to Renfrew CAS noting that they had interviewed Vern and Katherine about this. He noted their surprise to this request as they had virtually no contact with Marie for six or seven years and had never met her personally. CAS was unaware that the children had been wards of any other agency. They noted that Gerald had not played an active role in their lives. The letter noted that Sharon wanted to see her mother, but the CAS did not view it as practical. The Cannons expressed their attachment to the three girls in the letter. The Cannons were willing to exchange information and photographs with Marie.

[86] On February 17, 1972, Renfrew CAS wrote to the Director of Child Welfare, Ontario, asking that she direct correspondence to Mr. Chopra. In the correspondence, they requested that Mr. Chopra attempt to dissuade Marie from doing anything with the children until it was determined that she had a stable life and that a full report on Marie’s background and present situation, “with recommendations on the future management of the children-mother relationship, relative to inter-agency involvement” be provided. It noted that the youngest children could not remember their mother.

[87] On March 13, 1972, Mr. Chopra did not reply directly to Marie. Instead, he wrote to the Department of Indian Affairs in Vancouver, briefing it on Marie’s request, and the response from the Renfrew CAS requesting that a member of staff provide them with a complete report on whether Marie could take responsibility in her home set up and asking for a home study to be conducted.

[88] However, by letter dated June 2, 1972, Marie wrote to the Battleford Indian Agency from Maple Ridge, B.C. The letter stated that she came to British Columbia in July 1967. At the time of writing, she was in jail, and she expected to be released in August or November 1972. She needed her hospitalization card, glasses and dentures. She asked to know when she could get her children and advised that she planned to continue with AA meetings and to get a home for her and her children. It is not clear from this letter whether anyone had been in contact with her about Mr. Chopra’s letter.

[89] It appears that Mr. Chopra received no response to his letter. Twenty months later, on November 9, 1973, Mr. Chopra followed up with his request for a report on any developments in the case. On November 26, 1973, a reply claim noted that the request had been referred to the Provincial Superintendent of Child Welfare, that they were unable to contact Marie and that they had closed their file as it appeared that Marie had left the province. I was not provided with the copies of the correspondence referred to in this letter, so I am unable to discern when Marie left the province as almost two years had elapsed between when Marie wrote to regain her children in December 1971 and this November 1973 response.

[90] Three years later, on November 3, 1973, Sharon was assisted by George Dove of the Kawartha/Haliburton CAS who wrote to the Regional Director of Indian Affairs, Toronto. He noted that Sharon would soon be turning 18 years old and that she was asking for information about her Indian Status. She was looking to contact her brother Adam, who would be approximately 22 years old, and her mother.

[91] By letter dated November 23, 1976, from Mrs. Marlene Bugler, Soc. Services Admin Assistant of the North Battleford District to Mr. Dove, Sharon learned that her mother was presently residing in Kahewin, Alberta, and that she could be contacted through George Youngchief in Kahewin. Mrs. Bugler noted that they had Sharon’s birth date as February 9, 1959, not January 12, 1959.

[92] Sharon wrote to her mother in care of George Youngchief in Kahewin but it was returned, “[n]o such post office”. She followed up with Mrs. Bugler by letter dated December 17, 1976, requesting contact and the birth dates and places of birth for each of her sisters. A reply came in early 1977, advising that an Uncle Adam was living on Thunderchild First Nation and that Sharon’s letter to her mother had been forwarded through George Youngchief in Hooshaw, Alberta. George Youngchief was the Plaintiffs’ uncle.

[93] Sharon would later connect with her mother as described further below when I examine the second part of the chronology of what happened in Katherine’s home and to the Plaintiffs after they left it.

B. Did Canada Owe and Breach a Fiduciary Duty to the Plaintiffs?

[94] The Plaintiffs claim that Canada owed duties to them because of their Indian Status and that they were deprived of their culture, language and community by Canada. They state that Canada cancelled the plan to return them to their home community and that through this exercise of discretion, Canada breached its fiduciary duty to the Plaintiffs.

[95] Canada argues that it did not owe a fiduciary duty to the Plaintiffs and that the Federal Crown did not have the jurisdiction to determine the fate of the children. That jurisdiction, Canada argues, lay with the local children’s aid societies and the parents of the Plaintiffs. They say that Gerald placed the children with Katherine Cannon.

[96] To address this issue, I examine how a fiduciary duty is established, whether on these facts Canada owed a fiduciary duty to the Plaintiffs and, if so, whether Canada breached that duty.

(i) Fiduciary Duty

[97] I first examine whether a fiduciary duty exists. In Brown v. Canada (Attorney General), 2017 ONSC 251, 136 OR (3d) 497, Justice Belobaba examined the fiduciary duty as between Indigenous people and the Federal Crown. He noted at para. 65 that even though the Federal Crown stands in a fiduciary relationship towards Aboriginal Peoples, that alone does not impose a generalized fiduciary duty.

[98] At paras. 65-67, he set out two ways by which a fiduciary relationship can be established. First, it is established if the Crown assumed discretionary control of a specific Indigenous interest. This category has typically been addressed in land claims. However, Justice Belobaba found that a case could be made for this category to apply to culture and identity, relying on the Supreme Court of Canada’s decision in Alberta v. Elder Advocates, 2011 SCC 24, [2011] 2 SCR 261. There, the Supreme Court held at para. 51, that this must be akin to a private law interest and that such an interest includes to which the person has a pre-existing, distinct, and complete legal entitlement such as, “property rights, interests akin to property rights, and the type of fundamental human or personal interest that is implicated when the state assumes guardianship of a child or incompetent person.” [Emphasis added.]

[99] Justice Belobaba accepted at para. 80 that during the time period in question, there can be no doubt that ‘Aboriginal Peoples’ concern to protect and pressure their Aboriginal identity was and remains an interest of the highest importance. In so doing, he relied on the Supreme Court’s decision in St. Ann’s Island Shooting and Fishing Club Ltd. v. The King, 1950 CanLII 28 (SCC), [1950] S.C.J. No. 2, at para. 219, wherein the Supreme Court stated that that the Aboriginal Peoples, “are, in effect, wards of the state, whose care and welfare are a political trust of the highest obligation” which he said, notwithstanding the paternalistic and condescending language, reflected the prevailing view at the time.

[100] For the second category, a fiduciary duty may be established if three elements exist:

a. an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary;

b. a defined person or class of persons vulnerable to a fiduciary’s control; and

c. a legal or substantial practical interest of the beneficiary that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control. (Brown, supra, at para. 67.)

[101] While Justice Belobaba’s decision concerned a class certification motion, I accept his summary of the categories of fiduciaries as appropriate for this case.

(ii) Is a Fiduciary Duty Established?

[102] The facts establish that the Federal Crown owed a fiduciary duty to the Plaintiffs. It can be established through both categories.

[103] The Federal Crown, through Indian Affairs, exercised its discretion to affect the lives of the children in Ontario and of their relationship with their mother. From soon after the death of the Plaintiffs’ grandmother in Ontario, until the wardship order was made in March 1967, Indian Affairs knew that there was no legal impediment to Marie having her children. There was no wardship order. They also knew that her children had been split up with one child living in a convent and the others split up between relatives.

[104] Indian Affairs knew that the relatives who had taken the children in were the relatives of their white father who, on the information that it had, had abandoned them. Indian Affairs also took steps to convey to Marie what would be necessary for her to have the children back, telling her through correspondence that she would need to have a home. Indian Affairs took steps to arrange to communicate with the Thunderchild First Nation about whether a placement could be made with kin. They were willing to permit an escort to go retrieve the children and were prepared to fund it. The Hastings CAS did not direct this plan, the Federal Crown did.

[105] By taking these steps, the Crown assumed a discretionary control which established a fiduciary duty under the first category given that the Plaintiffs’ language, culture, community, and identity were at risk.

[106] These actions also establish a fiduciary duty under the second category.

[107] I note that it is the Federal Crown’s position that it was Gerald who placed the children with the Cannons.

[108] The Plaintiffs assert that because Marie and Gerald were not married, and Marie was First Nations, Gerald had no right to the children and no right to make decisions about them. This is certainly the way that everyone acted. The Hastings CAS took the position that consent had to be obtained from the mother. Indian Affairs also looked to Marie to provide consent.

[109] They rely on The Children of Unmarried Parents Act, RSS 1978, c. C-8. I find that it is of no assistance to me. That statute placed a burden on the unwed mother to claim for support from the father within the first 12 months. In my view, this does not mean that the father’s rights terminated after 12 months. Unfortunately for the mother, if she did not make that claim within the first 12 months of a child’s life, she would have no right to support.

[110] In my view, it was more likely that Gerald was not physically present to provide consent and that consent had to be sought from Marie. The Federal Crown cannot rely on Gerald leaving his children split up between family members and the convent as him having placed them. Not when it had clear information from Mrs. O’Brien about the perils faced by the children.

(iii) Did the Federal Crown Breach its Fiduciary Duty?

[111] In my view, having assumed discretionary control over the future of the Plaintiffs following receipt of the correspondence from Mrs. O’Brien, the Federal Crown was obliged as a fiduciary, to act in the best interests of the Plaintiffs. These best interests would include protecting their physical and psychological well-being as well as their language, culture and identity, as Mrs. O’Brien put it – their birthright.

[112] Canada shelved the plans for the Plaintiffs’ return to Thunderchild First Nation. The evidence is that it is Indian Affairs who created the plan for the Plaintiffs’ return, arranged the escort, and paid for the escort. Indian Affairs had the power to influence the decisions made by the local CAS as they from time to time offered to pay the per diem rate should the children come into care.

[113] It was this May 26, 1966 decision to call off the escort that changed the trajectory of their lives. Hastings CAS had stated that it had no protection concerns relating to the children and that they would not be apprehending the children. I find that following the receipt of this news, Canada shelved the plans for their return.

[114] Canada did so, knowing that there was no permanent plan for the children, knowing of Mrs. O’Brien’s concern, and knowing that Marie wanted her children and that no court had interfered with her parental rights. It also knew that the children’s relatives on reserve wanted to care for the children.

[115] The Hastings CAS’s decision to leave the children with Vern and Katherine Cannon would not have come about if the children had left with the escort as planned. Hastings CAS’s deference to the children is set out in a May 24, 1966, note which states:

The mother of the children is a Treaty Indian and the children are classified as Treaty Indians and are under the supervisions of the Department of Indian Affairs. Any further movement in this case will come upon instigation from the Department of Veterans Affairs or a direct situation if reported.

[116] There were other times that followed where Marie expressed a desire to be reunited with her children. These did not come to fruition. The Federal Crown and the Defendant, Katherine Cannon argue that Marie was never able to care for her children and that the Plaintiffs’ belief that she could is simply wishful thinking.

[117] It is true that there were many times that Marie could not be reached or was unavailable. But in all of the documents produced, no one clearly states to Marie that the children are hers and there is no legal barrier to her caring for them. There was always a qualifier. The Federal Crown conveyed that there would be conditions for their return, such as needing to have a proper home.

[118] The shelving of the plan for Ms. Okanee to escort the children back to Thunderchild First Nation meant that the last best chance for the children to be reunited with their community was lost.

[119] These Plaintiffs had a special vulnerability. Canada was obliged to act in their best interests. This included preserving the relationship with their community, their language, and their culture. But Canada acted in a way that disrupted this relationship. In these ways, Canada failed to act in the best interests of the Plaintiffs and breached their fiduciary duty.

C. Was Canada Negligent?

[120] The Plaintiffs assert that Canada was negligent in placing them with Katherine and Vern Cannon without insisting on a home study. I have already rejected Canada’s submission that it did not have a role in the Plaintiffs remaining in the Cannons home.

[121] The Plaintiffs say that Canada should have insisted on a home study. They argue that they were entitled to be registered as Indians, that the Thunderchild First Nation is a sovereign First Nation and that only Marie, and not Gerald, had the right to make decisions for them.

(i) Duty of Care

[122] In the framework of negligence, to find a prima face duty of care there must be a relationship of sufficient proximity and the harm alleged must have been a reasonably foreseeable consequence of negligence by Canada. I note that the factors that a court may rely on in bringing legal strangers into proximity include where one party is vulnerable, and unable to set expectations. That was the case here and Canada exercised its discretion to control what happened to the Plaintiffs.

[123] Canada asserts that where negligence is claimed against a public authority, I must first examine the Defendant’s statutory powers and that a public authority cannot exceed the limits of its legal authority, see: Cooper v. Hobart, 2001 SCC 79, [2001] 3 SCR 537, at para. 43. Canada states that it did not have child welfare powers as it delegated its power to Ontario under its Child Welfare Act. I accept that this is the case. But the statutory framework is not the end of the analysis, it is the start of it. If the statute clearly set out a duty, that would be the end of the proximity analysis.

[124] However, proximity can also arise from the specific interactions between the Plaintiffs and Canada. The statute is still relevant but what governs are the specific interactions between the government actor and the claimant, see: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 45-46.

[125] In this case, proximity and reasonable foreseeability are established. I have set out above the factors which establish proximity under fiduciary duty. In my view, they apply equally to establish a duty of care on the specific interactions of Canada towards the Plaintiffs. I also accept that the letter from Mrs. O’Brien establishes that it was reasonably foreseeable that harm would come to the Plaintiffs and that they would lose their cultural identity should they remain with extended family.

[126] Canada says that if the claim against Katherine Cannon fails, then the claim against it also fails. In its view, the breach of fiduciary duty and the negligence claims depend on a successful claim of abuse against Mrs. Cannon.

[127] I do not agree. The Plaintiffs’ claim against Canada is for negligence and breach of fiduciary duty, but the harm complained of is not limited to the abuse. It is for loss of culture and identity.

[128] In Brown, at para. 83, Justice Belobaba found that Canada owed a common law duty to take steps to prevent Aboriginal children who were placed in the care of non-Aboriginal foster or adoptive parents from losing their Aboriginal identity. Canada says that Brown is not applicable to this action because Brown involved children who were living on reserves who were apprehended by child welfare authorities. It argues that the Plaintiffs were never apprehended by child welfare but rather, placed by their father with extended family. I pause to note that Sharon was apprehended by child welfare authorities, not from reserve, but she did become the subject of an order under the Child Welfare Act, 1965.

[129] Canada further argues that the claim is that Canada failed to act to remove the Plaintiffs from their aunt and uncle. Canada argues that it was not implicated in the cultural loss and that everyone knew of the Plaintiffs’ Indigenous identity and their whereabouts. They point to the fact that Sharon was able to find her mother and reconnect with other family members when she left the Cannon home.

[130] I do not agree that Brown is irrelevant to this action. I find that given Canada’s relationship to the Plaintiffs created by the specific interactions between Marie, Mrs. O’Brien, and child welfare authorities in Ontario, it had a duty to takes steps to ensure that the Plaintiffs did not lose their identity. This is the case even if I am wrong in my conclusion that it was Canada who shelved the plans for the children’s return. At that junction, it was completely within Canada’s power to take steps to prevent the loss of the Plaintiffs’ connection to their community and culture. This would not have been an overstepping of Canada’s jurisdiction because there existed a partnership between the local CAS and Canada, as the Ontario authorities looked to Canada for its assistance connecting the children to their mother and extended family.

[131] Canada characterizes the claim as being for nonfeasance as opposed to misfeasance. I disagree. The Plaintiffs’ claim is both. The nonfeasance claim is that Canada failed to take steps to protect them. Those steps included conducting a home study and investigating their care, both of which Canada characterizes as negligence in exercising child welfare powers.

[132] The Plaintiffs’ claim is also for misfeasance, arguing that Canada wrongfully called off the escort.

(ii) Was the Harm Reasonably Foreseeable?

[133] I agree that the harm was foreseeable. First, Mrs. O’Brien clearly identified the potential harm. Second, it was clear that they were removed from their community and its culture. The records of Indian Affairs repeatedly express the opinion that the children would be better off with their own community and knew that their best chance to be reunited with their mother was to bring them in closer proximity to her. Canada knew that no legal process had been employed to separate them from their mother.

[134] Finally, Canada itself knew that, as evidenced by its own recommendations, that it was preferred that the children be brought to their Nation. Had the escort been able to attend and retrieve the children, relatives were then prepared to raise them, and they would have been able to have access to their mother when she was in the community. The identity and language loss, as well as the likelihood of the Plaintiffs being strangers in their own community was harm that was reasonably foreseeable.

IV. Complaint Against Katherine Cannon’s Identification as Indigenous

[135] In the early 1990’s, Katherine began to identify publicly as a First Nations person. She joined the Algonquins of Ontario (“AOO”) and was elected Chief by the membership of her community. The AOO is not a registered band under Canada’s Indian Act, R.S.C., 1985, c. I-5. The AOO is involved in a land claims process with the Federal Government.

[136] The Plaintiffs argue that Katherine’s claim is bogus and cannot be substantiated because she claims this status through her mother, Gertrude Green, who she states is the daughter of Susan Baptiste. They have obtained Gertrude’s baptismal certificate which states that Gertrude was “of unknown parents”. The Plaintiffs assert that Katherine Cannon is thereby committing identity fraud. They argue that this matters because identity fraud allows settlors to shape the future for First Nations and their communities while marginalizing First Nations’ voices and their communities.

[137] I agree that it is of great concern when a person falsely claims to be Indigenous when they are not, for many reasons, including those identified by the Plaintiffs. However, I am only concerned with the legal impact of that claim as it concerns the matters before me.

[138] The Plaintiffs assert that it impacts their claim in two ways. First, the Plaintiffs argue that if Katherine is claiming to be a First Nations person when she is not, that it reflects badly on her character. Second, they argue that her conduct aggravates the harm done to them. They say first she maligned their Indigeneity, and then to her own advantage assumed it, thereby adding insult to an injury that she caused.

[139] The Plaintiffs claim that there are many advantages to Katherine and her family by her so doing. She was able to work tax free. As Chief, she relocated the band office to her daughter’s house. This was to her daughter’s financial benefit, as rent was paid to her daughter. She had also claimed harvesting, hunting and fishing rights, and negotiated a land claim.

[140] I will explore the facts about Katherine’s claim to be of Algonquin descent and then determine whether any legal consequences flow from that claim in this lawsuit.

A. Mrs. Cannon’s identification as a First Nations Person and Involvement with the Algonquins of Ontario

[141] Mrs. Cannon identifies as Irish Algonquin, and a descendant of an Algonquin community that lived at Baptiste Lake. She testified that from the time that she was old enough to talk, she knew where her mother came from. She states that her ancestors were from Baptiste Lake and that she would go there and fish off the rock.

[142] In her evidence, Katherine Cannon stated that the community of Kijcho Manito is the community at Baptiste Lake and that when reserves were being created, the Chief refused to go to the reserve at Golden Lake or the North Bay area. They were Algonquin. Those who refused to be put on a reserve did not obtain Indian Status. It is to this group of Indigenous persons from which Katherine Cannon claims to descend and by which she grounds her claim as being Algonquin.

[143] Katherine states that there are 10 communities that did not have status who have been negotiating an agreement and that those 10 communities together are called Apikwakaton.

[144] She states that when her children and the Plaintiffs lived with them, they did not go to Baptiste Lake. This was because by then, all the ancestors were deceased, and the younger generation had moved to the city.

[145] In or about 1989 or 1990, a meeting was held in Maynooth at the St. Ignatius School. The Chief of Pikwakanagan (Golden Lake) hosted the meeting. There were 50 to 60 people present at the meeting. At that meeting, Katherine was appointed to represent “the people”. Of the persons attending the meeting who were not her family, she knew only Sarah Lavallee. Mrs. Lavallee introduced her to a woman who Katherine described as a medicine woman from an East Coast Mik’maw tribe. This woman gave her an Indian name which translates to Still Waters.

[146] Katherine volunteered for the first few years to put in place an enrollment process in preparation for negotiations. She described Ontario coming to the table in 1990 and Canada coming to the table in 1991. At some point, funding was provided for the treaty process and Katherine began to draw a salary. She states that she worked for 27 years as a community appointed representative of the AOO.

[147] In her role as Chief of her community, Katherine signed Certificates of Indian Status. These certificates closely resembled those issued by the Federal Government.

[148] In evidence, I was asked to compare the Certificate of Indian Status card held by Darlene Paddy-Cannon with an example of the Certificate of Indian Status card signed by Katherine Cannon as Issuing Officer and issued to Joanne Green. The former, issued by Indian and Northern Affairs Canada, certifies that the holder of the card is an Indian within the meaning of the Indian Act, supra, and names that Registry Group as Thunderchild First Nation.

[149] The latter card, the one signed by Katherine Cannon, appears to have been issued by Algonquin National Kijcho Manito. Rather than certifying Indian Status, it states “Anishinàbew, eji-nisidotàganiwang anishinàbe otibinoshkàgon na Kanadàg kichi-tibihigewin enazinàdeg is an Indian as defined under Section 35 of the Constitution Act 1982 of Canada.” The Registry Group is Bancroft/Baptiste Lake.

[150] Katherine said that the cards she signed were used for hunting, fishing, and harvesting.

B. Lineage

[151] Katherine’s parents were Samuel and Gertrude Green. Katherine states that her mother’s family name was Baptiste and that through this lineage, she is First Nations.

[152] The certified baptismal record of Gertrude Theresa Baptiste states that on October 9, 1906, the parish priest baptized Gertrude Theresa, born July 28, 1906, of unknown parents. This entry contrasts with the records of other persons baptized which immediately precede and follow Gertrude’s which state that the child baptized was of a lawful marriage and lists the parents.

[153] The Register of Marriage of Gertrude and Samuel Green tendered in evidence lists Gertrude Baptiste as being born in Baptiste Station and residing in Baptiste Station. Her mother is listed as Susan Baptiste. I cannot make out the name of the father on the Marriage Registry.

[154] According to the obituary filed in evidence, Gertrude Theresa Green of Maynooth, Ontario died on July 14, 1980, at the age of 73 at the Bancroft Red Cross Hospital. She was a member of the Roman Catholic Church of St. Ignatius in Maynooth, Ontario and Father Casertelli officiated the service. The obituary states that she was born in Bancroft, the daughter of John and Madeline Baptiste (Nee: Benoit) and remained a lifetime resident of the Maynooth area. There is no mention in her obituary of Susan Baptiste. This undermines the information in the family tree. No one put this document to Katherine, and she had no opportunity to explain the difference.

[155] In evidence is a family tree made based on research conducted by Katherine Cannon. She relied on this to set out her lineage to become enrolled in the AOO treaty process. Katherine stated that this was prepared by a friend, Joan Holmes, based on research that Katherine conducted. That chart shows Gertrude Baptiste being of an unknown or unstated father and the daughter of Susan Baptiste Dufond, whose parents were John and Madeline Baptiste.

[156] After tracing her own lineage, Katherine then encouraged her family members to sign up to be members of the Algonquins of Ontario. Through the AOO (not through the Federal Government), they obtained a Certificate of Indian Status which they used for hunting and fishing.

[157] Susan Scott is Katherine’s eldest daughter, and the eldest of all the girls who came to live in the Cannon house. She knew that her grandmother was Native and from Baptiste Lake. She showed her baking and quilting. Susan stated that while she never had a Certificate of Indian Status, she had a card that her mother signed that she used for hunting and fishing.

[158] Karen Moore, Katherine’s other daughter, testified that she has a card from the Algonquins of Ontario that was issued to be used for harvesting, hunting, and fishing. It is issued to anyone who qualified as a beneficiary under the land claim. She recalls that her grandmother’s parents died the year after the Greens married. Mrs. Moore stated that they did not go to the lake as the family had disbursed.

[159] Kimberly Kempt, Katherine Cannon’s niece through her sister, testified at the hearing that her grandmother was Gertrude Green. She did not remember her ever speaking about having First Nations heritage. When asked whether she identified as Algonquin, she said that it is a hard question to answer. She stated that yes, she was Algonquin through her grandmother’s heritage, but she does not participate in any sort of activities. She was informed that she had Algonquin heritage when she was approximately 21 years old. She does not have a Certificate of Indian Status card.

[160] Donald Green, Katherine Cannon’s nephew through her brother, testified and considers himself to be Indigenous through his father and his grandmother Gertrude Green.

[161] Katherine also provided photographs of her relatives, friends, and a picture of Baptiste Lake. She identified her grandmother Susan Baptiste in one of photographs. These photos were of little assistance to me in terms of verifying her claim of being of Algonquin descent.

C. Conclusions on Katherine Cannon’s Indigeneity

[162] On the evidence before me, I cannot find that Katherine Cannon is a First Nations person. Similarly, I cannot find that she is not. While she now claims to be of Algonquin descent and being taught some First Nations culture by her grandmother Susan Baptiste, she did not raise her children as First Nations persons.

[163] I accept it is damaging to Indigenous communities when persons falsely claim to be First Nations, Métis or Inuit. The question of what makes a person Indigenous is a complex one. In Canada, the Indian Act governs status and band membership. Under repealed provisions of the Indian Act, status could be lost in many ways (see Gehl v. Canada (Attorney General), 2017 ONCA 319, 138 OR (3d) 52, for example.)

[164] I have not had the benefit of expert evidence or evidence from First Nations knowledge keepers on the history of the Baptiste Lake community. I do not know what the Algonquin traditions are to make a person a member of a First Nations community. I have only limited information before me.

[165] Gertrude Green’s Baptismal Certificate demonstrates that her parents were unknown to the church. This would seem to be the best evidence about her parents. The Defendant, Katherine Cannon, has argued that there could be many explanations for this but has called none. We do know that Susan Baptiste is named as Katherine Cannon’s grandmother in the Marriage Registry. However, Gertrude Green’s obituary from 1980 does not name Susan Baptiste as her mother and names John and Madeline Baptiste as her parents. I also have no documentary evidence on whether Susan Baptiste was Indigenous.

[166] In the years that the Plaintiffs resided with the Cannons, there were no First Nations ceremonies or traditions. This was acknowledged by Susan Scott, Kimberly Kempt, Karen Moore, and Katherine Cannon. The absence of First Nations ceremonies and traditions call into question Katherine Cannon’s assertion that she always knew who she was, even considering, as her daughter said, that it was not always a point of pride to be First Nations because of prejudice and discrimination.

[167] However, on the evidence before me, I cannot conclude that Katherine is of First Nations descent. Similarly, I cannot conclude that she is not. I do have doubts about the claim, based on the different names and information that is found in the baptismal certificate, the marriage registry, and Gertrude Green’s obituary.

[168] So, while these doubts may impact on my assessment of the reliability of Katherine’s evidence, I cannot find it to be an aggravating factor on any damages that might flow from a finding of liability against Katherine.

V. Claim of Abuse Against Katherine Cannon

[169] The Plaintiffs allege that Katherine wrongfully changed their names, abused them physically and emotionally, disparaged their Indigeneity, and contributed to their loss of identity. They claim Katherine aggravated that harm when she falsely adopted an identity as an Algonquin woman.

[170] To assess the Plaintiffs’ claim against Katherine, I will examine the legal principles that I will apply. These include the elements of the torts alleged, the burden of proof, and the concepts of credibility and reliability when assessing evidence. I will then examine what happened in Katherine’s house, what happened after the Plaintiffs left the house and, if the case against Katherine is established, the injuries resulting from her conduct, if any. I will assess damages.

[171] The Statement of Claim contains the following allegations:

a. Katherine assaulted them by whipping them on their bodies with a belt and a razor strap;

b. Katherine threatened physical violence if they did not comply with her demands to clean the St. Ignatius School;

c. Katherine verbally abused them with language that was racist and derogatory;

d. The Plaintiffs were forced to perform the majority of the chores;

e. Katherine told the Plaintiffs that they were worthless Indians and that is why no one wanted them; and

f. Katherine knew and did not tell them their true legal names and changed their legal names contributing to a loss of identity.

[172] At the heart of the claim, is that Katherine engaged in emotionally and physically abusive conduct towards the Plaintiffs and intentionally inflicted mental distress upon them.

[173] The Amended Statement of Claim does not use the words negligence, assault, battery, breach of fiduciary duty or intentional infliction of mental distress. It identifies threatening and abusive conduct by Katherine. There is a heading at paragraph 7 of the Amended Statement of Claim which states Negligence of the Defendant but there is no specific pleading of negligence.

[174] It is Katherine’s position that there is no negligence claim against Katherine and that even if I could find that there was, there is no evidence of the standard of care for a mother in the time that the Plaintiffs were in Katherine’s care.

[175] This assertion omits two key issues. First, Katherine was a paid foster parent. Second, the Amended Statement of Claim pleads at para. 38:

The Defendant, Katherine Cannon, owed a duty of care to the Plaintiffs by virtue of her role a care provider entrusted with monies from Ontario and Canada. The Plaintiffs plead and the fact is, the Defendant Katherine Cannon, breached the applicable standard of care in the circumstances by physically and emotionally abusing the Plaintiffs and by her intentional infliction of terror on the Plaintiffs through her conduct and actions as described herein.

[176] In the Ontario Superior Court decision, Ahluwalia v. Ahluwalia, 2022 ONSC 1303, the tort of “family violence” was directly recognized as flowing from s. 2 of the Divorce Act, RSC 1985, c. 3 (2nd Supp). This year however, the Court of Appeal rejected the formation of a tort of family violence, and found that the existing torts of “assault, battery, and intentional infliction of emotion distress” can address the harms of family violence, which is inclusive of “incidents or patterns of coercive control”. See: Mane v. Mane, 2023 ONSC 5343, at para. 34 (“Mane”); Ahluwalia v. Ahluwalia, 2022 ONSC 1303.

[177] There is no tort of abuse. See: Mane at para. 35.

[178] While the Plaintiffs have not pleaded it as such, the conduct complained of falls within the following existing torts set out in Ahluwalia, supra, being assault, battery, and intentional infliction of mental distress. I cannot find that the pleadings included a claim for breach of fiduciary duty by Katherine or negligence, but I will assess this matter as if they did in the event that I am wrong.

VI. Elements of the Breach of Fiduciary Duty, Negligence and the Torts Alleged

A. Fiduciary Duty

[179] As noted above, a fiduciary has a duty of loyalty and is obliged to act in the best interests of those to whom they owe the duty.

[180] As noted by Justice Gomery, as she then was, in Calin v. Calin, 2019 ONSC 3564, at para. 22, aff’d Calin v. Calin, 2021 ONCA 558:

Parents are obliged to act in their children’s best interests and not exploit the power and authority they hold over them. They have a wide discretion in the performance of their duties as parents, but this does not extend to willfully inflicting personal injuries beyond the limits of reasonable parental discipline. Physical abuse of a child is a breach of the parent’s fiduciary obligation to protect and care for their children.

[181] In my view, these duties extend to a person standing in the shoes of a parent and a person acting as a foster parent.

B. Negligence

[182] In order to establish negligence against Katherine, the Plaintiffs must prove on a balance of probabilities that she had a duty of care to them, that she breached the duty, that Plaintiffs suffered harm and that the harm suffered was caused by the breach of the duty of care.

C. Battery

[183] To prove the tort of battery, the Plaintiffs must demonstrate, on a balance of probabilities, that Katherine intentionally inflicted unlawful force upon them. I must be able to conclude that Katherine intended to, and did in fact, make physical contact. The contact must be either physically harmful or offensive to the victim’s reasonable sense of dignity (See Calin v. Calin, 2019 ONSC 3564, at para. 18, aff’d Calin v. Calin, 2021 ONCA 558).

D. Assault

[184] To prove the tort of assault, the Plaintiffs must demonstrate, on a balance of probabilities, that Katherine threatened, through words or conduct, to commit battery. As noted in Calin, supra, at para. 20, “[t]he tort of assault exists to protect individuals not only from actual physical harm but from the fear of physical harm. To prove assault, a plaintiff must show that the defendant intentionally created the apprehension of imminent harmful or offensive contact.”

E. Intentional Infliction of Mental Distress

[185] To prove the tort of negligent infliction of mental distress, the Plaintiffs must demonstrate, on a balance of probabilities, that Katherine engaged in flagrant and outrageous conduct calculated to produce harm, which resulted in a visible and provable injury such as a recognized psychiatric illness (Calin, supra, at para. 26).

VII. Assessment of Evidence

A. Credibility and Reliability

[186] I must assess the credibility and the reliability of the witnesses which are different but related concepts. A credible witness may not be a reliable witness. In R. v. Sanichar, 2012 ONCA 117, at paras. 69-70, Laskin J.A. explained the concepts which were later adopted by the Supreme Court of Canada (2013 SCC 4):

I accept that reliability is not the same as credibility; that is well established. Credibility has to do with the honesty or veracity of a witness’ testimony. Reliability has to do with the accuracy of a witness’ testimony. Many cases of mistaken identification have shown that a credible witness may give unreliable evidence.

The reliability of a witness’ testimony is often gauged by the witness’s ability to observe, recall and recount the events at issue: see R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41. The passage of time may have an effect on the witness’ ability to do so accurately. For this reason, my colleague suggests that in cases, such as this one of historical sexual abuse, “the idea that trial judges should consider the “need to self-instruct on the frailties of evidence concerning events from a distant past” is a sensible one”. Perhaps it is, but the trial judge cannot be criticized for not expressly self-instructing along these lines.

[187] In addition to the issues above, I must be mindful of serious inconsistencies in a witness’s account as well as the subtle influences that may have distorted memory over time (see Paddy-Cannon v. Canada (Attorney General), 2022 ONCA 110, at para. 37, Sanichar, supra, at paras. 38-39.

[188] Special considerations apply when adults are testifying about childhood events when assessing inconsistencies and lack of memory as noted by Coroza, J.A., in Paddy-Cannon v. Canada (Attorney General), supra, at paras. 39-41, relying on the Supreme Court of Canada decision in R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122:

I accept that Sanichar advises triers of fact to be mindful of time, and appropriately cautious, when assessing testimony of events from a distant past. However, as noted above, W. (R.) and other cases require that when assessing the testimony of adults trying to recount childhood memories, triers of fact must also be mindful of the context when addressing inconsistencies and a lack of memory.

In W. (R.), McLachlin J. (as she then was) stated, at p. 134:

It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to “adult” or “child” standards — to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying. [Emphasis added.]

In Pindus, Laskin J.A. stated, at para. 37, that “when an adult witness gives evidence about events that took place in childhood, inconsistencies and lack of memory have to be considered in the context of the age of the witness at the time of the events.”

[189] I note that inconsistencies do not necessarily render a witness’ testimony not credible or unreliable. I must assess the witness’ credibility in the context of the evidence as a whole. (See: Calin v. Calin, 2021 ONCA 558, at para. 16.)

[190] I instruct myself in accordance with the principles set out above.

B. Collusion

[191] There is no similar fact application. If I conclude that one of the Plaintiffs was abused by Katherine, I cannot conclude that she was likely to abuse the others. I am able to use the evidence of each of the Plaintiffs to establish what happened in the house.

[192] The Defendant Katherine argues that I must be mindful of collusion between the Plaintiffs, asserting that collusion can arise from a deliberate act or witnesses consciously or unconsciously tailoring their descriptions.

[193] I find no evidence of deliberate tailoring of evidence so as to give an air of reality to the suggestion of collusion. I accept that there is a danger when three self-represented sisters are presenting their case that they might tailor their evidence, intentionally or unintentionally. However, I find no evidence that the Plaintiffs colluded. In fact, each told what happened in such different ways so as to demonstrate to me that there was no collusion, intentional or unintentional. I specifically reject that what is alleged as collusion in the Defendant Katherine’s submissions is collusion.

C. Demeanor

[194] I may examine the manner in which a witness testifies but I appreciate that looks can be deceiving. I can assess demeanour, but I must be careful not to place too much weight on it. There is no one typical way to respond to any particular situation and testifying in court is not a common experience. There are many reasons that a witness might become overwhelmed or show no emotion at all.

VIII. What Occurred in the House & Analysis of Accounts

[195] I must assess what occurred in the house. The Plaintiffs’ accounts differ greatly from Katherine’s account and that of her children and members of her extended family. I do not set out every detail of the evidence. I have attempted to address the major issues raised by the Plaintiffs and the Defendant Katherine.

[196] The Defendant Katherine Cannon called her niece, Jodi Aoki, her nephew Donald Green, Kimberly Kempt and her brother-in-law Robert Cannon (Uncle Bobby), to testify about their memories of the Cannon family while the Plaintiffs were residing with them. They spoke of many happy events. It was clear that there was a mutual fondness between them and the Plaintiffs between Jodi Aoki and Uncle Bobby.

[197] None of the extended family members witnessed abuse. However, the Plaintiffs do not allege that those outside of the house witnessed it and so I will not summarize their testimony here. Those outside the house did not see bruises on the bodies of the Plaintiffs and they spent time together swimming and camping in the summers. They claim that at other times there were sleepovers. I find that neither the cousin’s evidence nor the evidence of Uncle Bobby, who lived in the household but was older and largely absent, assists me.

[198] At the same time, it is possible that people living outside the house might be able to identify some type of ill temper. This was not the case here, there was no criticism of Katherine Cannon by extended family members.

[199] Below I assess the primary accounts of the Plaintiffs’ life in the Cannon home. I make conclusions about the credibility of the witnesses and what I accept, generally accepting the accounts of the Plaintiffs and rejecting Katherine’s evidence. I find that Katherine was not truthful and deliberately concocted stories not capable of belief so as to escape liability.

A. Sharon’s Evidence

[200] Sharon was born on January 12, 1959, in Rocky Mountain House, Alberta. In 2013, she suffered from a major depressive disorder. She acknowledges gaps in her memory. This raises a concern about her reliability. However, I found her to be a credible and reliable witness. She acknowledged her difficulties in her recall and testified only to what she could remember. She did not exaggerate her testimony. With a few exceptions, she conceded facts that were not helpful to her case that ought to be properly conceded.

[201] Sharon recalls Rosie being beaten with a strap or a belt at the age of four. Rosie was not listening, and Katherine used a belt across her back. Rosie screamed and her arms went out. She describes this memory as a strong and vivid memory.

[202] When she was 10, she went to live with Vern and Katherine. She was living in the convent at the time, and she was asked if she wanted to live in that household and she did because she wanted to be with her sisters.

[203] She remembers going to St. Ignatius School and also doing the cleaning of the school with Katherine. The Plaintiffs and Mary Cannon would go with Katherine. They cleaned the school including sweeping, emptying garbage, and washing the floors. Her job was to scrub the toilets using Comet, bleach, a steel pad and she recalled that there were hard water stains on the toilets. She described the chemicals as being toxic and dangerous.

[204] She described that when she was living with Vern and Katherine that she was becoming afraid and increasingly walking on eggshells. Her heart was pumping, and her ears were pounding. In addition to being made to clean the school, she had her chores at home. This would include manual labour outside including moving lumber and concrete blocks. The house was not finished at the time she moved in, and work was being done on it.

[205] She also had chores within the house including scrubbing the floors, removing wax with a razor blade, hoeing the potatoes, feeding the dog (which by all accounts was a mean dog), and garbage duties.

[206] She also had to help with the haying at Uncle Phil’s and suffered hay fever.

[207] There are pictures depicting snowmobiling and outdoor times with the Cannons. Sharon did not enjoy the ice fishing and remembers her feet being very cold and that she did not enjoy herself.

[208] As time went on, she said the tension in the house built. She was getting frustrated with Katherine’s punishments of herself, Rosie and Darlene. These included beatings and spankings which she considered abusive.

[209] Once she was wearing a braided headband on her head and Katherine pulled it off and said, “Get that Goddamn thing off your head!”

[210] Sharon had a sketchbook and would draw portraits which Vern praised. When she later went to look for the sketchbook, she could not find it until she ultimately went to the garbage can and found all of her work thrown away. Sharon became emotional describing this event which she describes as a vivid memory.

[211] Sharon also told the court that she recalled another time, when she was wearing a housecoat with yellow flowers, and Katherine was coming towards her. She stated that she knew that Katherine was going to hit her, and Sharon said she was going to defend herself. Katherine’s daughter Karen stepped in and punched her. Sharon had blood dripping from her nose. A stranger came to the house and Katherine passed off this incident. Both Katherine and Karen would testify that this did not happen and that they recall Sharon having nosebleeds.

[212] Sharon described that once she was being “pounded on” by Katherine and she asked her if she was done. Katherine stepped back, and Sharon said that it appeared that Katherine realized that Sharon was now bigger, stronger and angry, and that she would retaliate.

[213] Sharon reported abuse to the local CAS when she was 15 or 16. She called Mr. Campbell of the Bancroft CAS. She thought Katherine would be away that day, but Katherine came home early. Sharon testified that she got very quiet and did not reveal to the CAS worker the reason that she had called because she was very scared.

[214] She was not given an opportunity to meet with the worker alone and did not tell the worker what was going on. These are prior consistent statements, and as such they cannot be taken to make her testimony now as truthful, as a person can consistently tell a lie over decades. However, they do discount any suggestion of recent fabrication. I apply the same analysis to her statements to health care workers in 1989 which are set out further below.

[215] Sharon also testified that Vern touched her breasts a few times.

[216] When Sharon was 16, she realized that she did not legally have to remain at Vern and Katherine’s house, and she began to make plans for her “big getaway”. She said that she planned to run away every Sunday.

[217] One day, she pulled out the suitcase that she had from the convent and started packing. Katherine came and she told her that she was leaving, and Katherine helped her pack the suitcase. Vern would come up and not say a word.

[218] At the time she was going to school in Bancroft and she was in Grade 11. After school, she caught the bus to Peterborough to go live with her father Gerald, with whom she had already made arrangements to live.

[219] She only once went back to Vern and Katherine’s house to drop off Christmas presents.

[220] Sharon’s actions at the time were consistent with her story about what happened in Vern and Katherine’s home. She left as soon as she was able. She did not return to the house, and she did not participate in any family gatherings.

[221] She states she was led to believe that she was stupid and would never amount to anything, and that she would have children and abandon them. She stated that she was made to feel inferior, unwanted, and that she was there for labour and a pay cheque and that these memories still remain. She is triggered by smells and other things and has panic attacks. She did not learn to develop social skills.

[222] She would later go back to school through night classes and upgrading herself to get her GED. She later obtained meaningful and important work on the Thunderchild First Nation reserve as an adult, demonstrating her abilities.

[223] While she still has vivid memories from living at Vern and Katherines that present difficulties for her.

[224] She was challenged in cross-examination that Gerald abandoned her and that he did not see her. It was put to her that he could have visited her in the convent and when she was at Vern and Katherine’s. Sharon did not accept that Gerald had the choice to be able to visit her. She recounted that once, they were told to go to the bedroom and be quiet and their father was there and wanted to see them. He would be sent away. Katherine would later testify that he showed up intoxicated. She acknowledged that Gerald visited her only once while she resided in the convent and does not know why he did not visit her more.

[225] In response to the question that Gerald would not sign for her heart surgery, she stated that Gerald was the biological father of an Indigenous child, and that the child belongs to the reserve under the protection of the Crown and that the Federal Crown would have greater rights.

[226] Once in Peterborough it was decided that she would not go back to high school but would train as a commercial stenographer at Sir Sandford Fleming so that she would be employable. However, despite this training, she could not get a job in Peterborough, which she attributes to racism. She became very discouraged about this, and eventually moved out of her father’s house and went on welfare, later getting a job working as a server in Peterborough.

[227] Sharon began to look for her mother by writing to Indian Affairs.

[228] When Sharon was around 18, she began to write to her mother. She started to make plans to go out West. She eventually went to Bonneville and went to the police station. By this time her mother had remarried to Mike Watchmaker. The police officer knew Mr. Watchmaker and a meeting came about. Marie came to Bonneville to meet Sharon. Later, in Calgary, Marie met with both Sharon and Darlene. Finally, in 1993, all three Plaintiffs together reunited with their mother Marie Watchmaker and their extended family and attended Pow Wow together.

[229] Sharon produced a Statement of Live Birth in which she is named as Sharon Paddy. Her mother is listed as Marie Paddy. It is dated February 6, 1959, and signed by her mother Marie Paddy. The Registrar’s records state that it is No. 110 of 1959. It does not list Sharon’s date of birth.

[230] There is a second Statement of Live Birth also signed by Marie on February 6, 1959, and listed as the Registrar’s record No. 110 of 1959. On that Statement of Live Birth, Paddy is crossed out and Cannon is written. This document lists Sharon’s birthdate as January 12, 1959. This version is a photocopy issued for Government use only.

[231] As we know from the correspondence to Mrs. O’Brien, Mr. Greyeyes of Indian Affairs, was of the view that Sharon’s name was Sharon Geraldine Paddy and that her date of birth was February 6, 1959.

[232] In my view, it appears that Sharon was born January 12, 1959, to Marie Paddy and that Marie Paddy signed the Statement of Live Birth on February 6, 1959. It is not clear to me whether this was a two-page document or what happened so as to make the date of birth not appear on one of the statements. It can also be concluded that Marie Paddy named her child Sharon Geraldine Paddy and that at some point in time in the future, for a reason that the evidence does not demonstrate, that name was changed on the face of the record.

[233] Through the back and forth between Mrs. O’Brien, Mr. Greyeyes, and the children’s aid societies, they eventually began to refer to her only as Sharon Cannon.

[234] Sharon acknowledged that she did not have any more information regarding the name issue or why the name was changed on the face of the document.

[235] Sharon’s adult life was tumultuous. She was involved in several abusive relationships.

[236] In 1989, Sharon was hospitalized at the Foothills Hospital after having a major depressive episode following the breakdown of an 8.5-year common-law relationship in which she experienced physical, emotional, and psychological abuse. The hospital records reflect that she reported the following about her childhood:

Sharon reported a traumatic upbringing during her developmental years and stated she has three younger sisters and one older half-brother. She stated her parents separated when she was four and she moved with the father to Ontario to a small town with her sisters being sent to different relatives. At that time (age five) she reported undergoing major heart surgery for valve repair and was subsequently placed in a convent to be looked after by nuns for the next four years. She states there was little contact with her family of origin and felt quite alone and unattached during this time. She stated after that she was adopted by her uncle as were two other sisters, however, her involvement with this family was quite abusive as they tended to treat the adoptees different from their own children. She reported much physical abuse and emotional abuse during this time. At the age of 15, she decided to leave home and lived with her father. The time spent with him was exactly the opposite in regards to being unrestricted and having all the freedom she wanted. She became heavily involved with drugs and alcohol but did manage to attend one year of college taking a business course.

[237] Sharon was noted to suffer attachment, loss, and abandonment issues and participated in individual and group therapy sessions.

[238] I believe Sharon’s evidence that the Plaintiffs were not treated the same as Katherine’s own children. I accept that the Plaintiffs were treated like servants doing chores inside the house, outside the house, and at the school. I accept Sharon’s evidence that she lived in fear of Katherine and that Katherine would mete out regular physical punishment that involved a belt or a razor strap. I accept that she was told that she would not amount to anything and that the braided headband was torn off her head.

[239] I accept that Katherine belittled her mother and her identity as a Cree person.

[240] I accept all of these things despite her refusal to make similar admissions as she did at the first trial, which in my view came at a point in the trial when she felt under attack. She is a person who has suffered a lot of trauma in her life.

B. Rosie’s Evidence

[241] Rosemarie Christie testified that she prefers to be called Rosie. In Maynooth, she was Rose Cannon. She came to learn later that that was not her legal name. She learned that her name was Rosemarie Ethel Cannon. The name Rose Cannon follows her, to her detriment, for reasons described below. I will refer to her as Rosie in accordance with her request.

[242] Rosie stated that she learned from records that she moved into Vern and Katherine’s home in 1966. She stayed there until she was 14 and then went to live with Gerald and his wife Loreen. She has a younger brother, Jason, who is the child of Gerald and Loreen, and an older brother George who she met in 1993 at the reunion with her mother.

[243] Her first memory is that Katherine said that they were going to have a nap and told her to stay in bed. Katherine fell asleep so she went upstairs to get book and brought it downstairs. She looked through the book. Katherine woke up and was furious. She lunged across the bed and started hitting Rosie. Rosie does not know how many times she was hit.

[244] Rosie said that Katherine told her that she needed to obey the rules, or she would get hit. At that time, Katherine was hitting her with her hand.

[245] Rosie described being the family gopher. That she would be called upon at any time to get things for people in the family including Katherine’s cigarettes, her lighter, a book, etc. Rosie testified if she could not remember the item that she was supposed to get that Katherine called her stupid, told her to get her sisters and they would have to line up in the kitchen to get hit. That was the worst for her. When her sisters were punished for actions where it was her fault.

[246] Rosie was always thirsty. She found an empty glass aspirin bottle that she used to fill in the bathroom. One day Katherine came into the bathroom when she was filling it. She was scared as Katherine was very upset and grabbed her by the arm and was hitting her as she brought her to the couch upon which she threw Rosie. Rosie had to sit on the couch and was not permitted to speak. Everyone else was at school and when they came home, she was allowed to get off the couch.

[247] Rosie stated that there were regular beatings and death threats in the home. Katherine told them that if they ever told anyone, she would kill them.

[248] Katherine would later strap the children. Rosie remembers it on the buttocks and that it was stinging.

[249] She testified that when they cleaned the school, Mary, one of Katherine’s daughters, would get to sit in a chair.

[250] Rosie stated that they would get canned milk and not be permitted to have cheese while Katherine’s biological children would get regular milk.

[251] Rosie felt safe when Vern was home and when she was at school. Rosie testified that once Vern came home and found her sitting at the table as she having to eat a plateful of cooked onions. She was gagging and crying, and Vern came home and told her to go to bed.

[252] She further testified that Katherine accused her of having an affair with a well-respected teacher at school when she spoke about him admiringly. She was not allowed to go on the school trip.

[253] Rosie said that when they cleaned the rec room, they had to vacuum the carpet and then rake it. Once she did not rake it to Katherine’s liking and Katherine told her that she would have to clean the school by herself. Katherine would not drive her. Rosie walked a little way and then got a ride from someone to her father’s camp. She was supposed to call her father Uncle Gerald, and was told to call Katherine and Vern mom and dad. Her father told her that she did not have to go back.

[254] When she moved in with her father, he was married. She felt like a stranger as she had been told her mom and dad did not want them. She couldn’t stay. She became homeless and eventually Sharon got custody of her.

[255] She tried to get a job but needed a Social Insurance Number. She told them her name was Rose Cannon but was unable to get one, apparently because there was no one by that name. Her birth certificate states that her name is Rosemarie Ethel Paddy.

[256] Rosie ended up shoplifting and got sent to reform school. There she was taught her real name. When she left reform school, they helped her get a job in Oshawa. She ended up living with an older man who would cash her cheques and give her money. He was abusive. She tried to leave with friends to travel to Florida. She had a friend sign one of his cheques. She lived in Florida but when she returned, she was charged with uttering a forged document. She was 17 when she left and 18 when she returned. She was placed on probation and had a criminal record.

[257] Eventually, she moved to Alberta because Sharon was there. She married and had two daughters. She retrained in Alberta and began working in IT.

[258] Eventually, Sharon told her that there was someone who wanted to meet her: their mother. They planned a reunion at Thunderchild First Nation where the Plaintiffs and their other sister would meet their mother on reserve at the Pow Wow. There was a ceremony for the Plaintiffs, and they were welcomed home. Rosie took her daughter who was then 9.

[259] After the ceremony they went to Kehiwan where her mother was living with her new husband. There was another ceremony. Rosie described her mother as a good person. She had foster children. At some point she learned that on reserve, your Auntie is your second mom, cousins are like siblings, and families help families.

[260] Rosie worked for Indian Oil and Gas. In 1999, she went to work for the City of Calgary. In 2005, her employer asked her to submit fingerprints for a security check and the 1982 charge of uttering a forged document came back. In 1982, she was charged under the name of Rosemarie Cannon, alias Rosemarie Paddy. She was unable to obtain a pardon because she had no documentation that she was Rosemarie Cannon. She became despondent and attempted suicide, but then called an ambulance. Sharon and Darlene, who were living on reserve at Thunderchild First Nation came to be with her.

[261] Rosie left her husband. She moved to Thunderchild First Nation and had health issues. She lived there for about 10 years. After a series of unfortunate events including an impaired charge, Rosie moved back to Ontario with her sister in 2014.

[262] When she returned, Darlene encouraged her to dance. Rosie is now a jingle dancer and danced at the Pow Wow at Curve Lake First Nation.

[263] Rosie maintained her allegations against Katherine through cross-examination. She was emotional from time to time.

[264] Counsel for Katherine submits that Rosie became emotional about things she believed to be true, and that this might be expected with respect to allegations of childhood abuse, but that “there was an equally strong emotional response when they are pressed on other issues which, with respect, the Court knows to be false.”

[265] When Rosie testified about events in the home, she appeared terrorized. When she was cross-examined on her interpretation of the historical documents, she also became emotional. In my view, this was a fierce defence to her parents to whom she is fiercely loyal and she has looked for an interpretation that explained their actions. This is understandable, as it is clear that Canada’s records do not tell the whole story of what was going on with Gerald and Marie while the Plaintiffs were with Vern and Katherine.

[266] The Defendant Katherine submits that a witness who is non-responsive and argumentative about straightforward facts like that should not be believed. I would agree that this is often true. But I do not accept that it is the case here. Rosie refused to speak ill of her dead parents, notwithstanding their failings. And in the circumstances of this case, that is understandable.

[267] It is also true that hearsay of Gerald’s statements to CAS and others about Marie were self serving. One would not expect that he would assume fault after leaving the raising of his children to others.

[268] I believed Rosie’s account of what happened in the home. I believed it because she provided detail about what happened. She acknowledged the difficult feelings that came with what happened (for example, the awful feelings that she had when her sisters were beaten for something that she felt was her fault).

[269] I accept her evidence on the two specific incidents of assault. I accept that she functioned as a servant to the others in the home and that she was forced to work at the school. I accept that she lived in terror when she was with Katherine and Vern was not there. I also believe her that Katherine belittled her and told her she was stupid. I accept her evidence that Katherine strapped the children and that she and her sisters regularly were punished together.

C. Darlene’s Evidence

[270] Darlene commenced her testimony by stating that this case for her was about justice.

[271] Darlene said that when she lived out West with her parents she had a sled dog and a rabbit. She stated that her dad was a Plains Cree translator for the RCMP. She was cross-examined on this as there is no reference to it in the documentation. She remembers her parents being happy. She said it was her father who was unfaithful and that this made her mother unhappy and that this led to the children being taken into care in Edmonton.

[272] Darlene recounted abuse in the home where she lived for 13 years, leaving when she was in Grade 13. Her first memory is of spilling milk. In response, Katherine attacked her, beating her with her hand, she thinks.

[273] Darlene remembers writing on the table and some wood. Katherine confronted her, telling her that if she told the truth it would be okay. Darlene showed her what she had done and Katherine beat her.

[274] Darlene stated that Susan and Karen were both allowed to hit them. Susan was older. Darlene said once she stood up to Karen, who then called her mother, who beat her and called her a slut and a whore.

[275] She said at some point, Katherine told her that her name was Barbara. There is no other evidence of this except for the annotated Agreement to Board a Child referred to further below. She said that Katherine is responsible for changing her last name from Paddy to Cannon.

[276] She said that she had no safety or security in the house such that when she got her period, she was afraid to tell Katherine.

[277] Another time, when it was reported to Katherine that Darlene was seen wearing a boy’s jacket, Katherine beat her on the back with a razor strap.

[278] Darlene told other stories about Katherine. That Katherine took her to the priest’s house and showed her the priest’s wooden leg and laughed. That Katherine pushed her face into a cow.

[279] Katherine would make her eat fat and mushroom soup, both of which made her gag. She would sit at the table for hours.

[280] Darlene left home in Grade 13. She saw Katherine twice after that. Once at an event where Katherine asked her if she wanted her to babysit. She declined.

[281] Darlene testified that another time, she was in Algonquin Park with her baby and the baby’s father and, by coincidence, Vern and Katherine were also there at a different campsite. Darlene said that Vern came and picked up her baby and brought the baby to Katherine and handed her the baby.

[282] Darlene appeared to relish talking about what happened in the home. I appreciate that demeanour is the only thing upon which I should base my assessment. In cross-examination, counsel confronted her with a medical report which states that she freely acknowledged significant anger towards Katherine Cannon and a wish for revenge. Darlene denied being vengeful. However, she acknowledged significant anger towards Katherine. The transcript of testimony at the first trial was put to her and she acknowledged that it is possible that she brought the lawsuit to seek revenge and to punish Katherine.

[283] The Defendant Katherine submits that Darlene lied in her evidence when she said that the lawsuit was about justice when it is about revenge.

[284] Darlene’s evidence in addition to the issues set out above, covered a range of issues, and not always in a coherent way. This is the challenge when a person is self-represented. Darlene appeared to be wanting to paint herself in a good light, but I felt she was embellishing her accounts of what happened.

[285] She was argumentative and combative with counsel, protective of her parents and her community. She did acknowledge that her mother was angry and that her parents were unable to care for her. She held the view that her father was not able to care for her and her sisters because he was not allowed to by the family and the priest.

[286] I am not comfortable with some of Darlene’s evidence as, despite the confidence and certainty with which it was presented, it had the air of embellishment and exaggeration. I accept that she wanted revenge against Katherine. For these reasons, I am cautious but I do not reject her evidence in its entirety.

[287] I reject Darlene’s evidence of the cow, the allegation about Katherine showing her the priest’s wooden leg, and that Katherine showed her lingerie.

[288] I can accept some, none, or all of her evidence. I do accept that Katherine used physical discipline and that she feared for her safety and security in the home.

D. Katherine’s Evidence

[289] Katherine testified in a straightforward and no-nonsense fashion. Katherine confirmed in her evidence what came through in the evidence of others. She was in charge of a busy and crowded household. She denied all of the allegations against her.

[290] She said that Darlene came to the house first and then Rose and finally Sharon much later. She testified that Gerald was working in a mine up north and that they did not see him for five to six years. Once he started to date his brother’s wife’s sister he came around more frequently.

[291] In response to Rosie’s evidence that Katherine had laid down to have a nap, Katherine said that she never would have laid down in the middle of the day unless she was very sick and that she would not have hit her for not having a nap.

[292] In respect of the story of the aspirin bottle, she did snatch it from Rosie stating that she thought she had swallowed aspirin.

[293] In response to the Plaintiffs’ assertion that if one got punished, they would all get punished, she stated that she had no time to punish them, that she didn’t “have time to beat children all day.”

[294] Asked about Sharon’s story about wearing the yellow housecoat, Katherine stated that Sharon got nosebleeds and that she believes that is why her nose was bleeding.

[295] However, in the end, I did not believe her. Cross-examination revealed four material flaws in her testimony, which led me to reject it. The problematic testimony did not appear to be due to age or confusion, but rather a deliberate attempt to overcome the vulnerabilities of the case.

(i) Discipline

[296] Katherine’s statements about discipline were undermined by her own children’s evidence. When Katherine was asked about physical discipline, she stated that she did not physically discipline the children. She used only a time out and withdrawal of privileges. She stated that she did have to slap Rosie on the hand to teach her not to go to the stove and also, she had to teach the children not to go to the highway and slapped them for that.

[297] However, Karen stated that the children would be spanked on the bum in her house.

(ii) Agreement to Board a Foster Child

[298] Katherine signed the Agreement to Board a Foster Child in which she agreed that she would not work outside of the home, as she was being paid to care for Sharon. Not only was she prepared to disregard this agreement, but she also put Sharon, the child who was the subject of the agreement, to work scrubbing toilets at the local school where she was working.

[299] When Katherine was asked about the allegation that the chemicals that the children were told to work with were toxic, she said that there were brushes and disposable gloves for anyone to use if they wanted and that she used them, but she didn’t know if the children used them or not.

[300] Katherine’s evidence on the work at the school is that she did not have a babysitter and that all the children had to come with her to do the work.

[301] She said that when the Plaintiffs left her home, she assumed they went to Gerald’s.

[302] I find her blatant disregard for her commitment to the CAS undermines her reliability as a witness.

(iii) Testimony Regarding Plaintiffs’ Names

[303] Last, Katherine’s testimony about both knowing the Plaintiffs’ names and changing the Plaintiffs’ names was not believable and appeared concocted to overcome the documentary evidence that impugned her testimony. Knowing one’s name is important for obvious reasons. It is a core identity issue and is for practical reasons. One must know one’s name in order to obtain identity documents to obtain work and credentials.

[304] In her evidence in chief, Katherine testified that she always thought that the children’s last names were Cannon and that she did not know that Marie and Gerald were not married. She stated that she did not know of Rosie to have another other name than Rose Cannon. She stated that Darlene’s last name was Cannon and that she enrolled them in school as Cannons.

[305] This is simply not believable for two reasons. First, it is clear from the documentary evidence, including Mrs. O’Brien’s, that it was widely known that Marie and Gerald had had a common law relationship and that that information came from Gerald. Her evidence to the contrary is not believable.

[306] I note that while counsel represented that Karen would testify that the Plaintiffs had to sit in the back of the church because they were illegitimate, he did not in the end lead that evidence and I can only assume that he did not because it would have contradicted Katherine.

[307] Second, I had difficulty accepting her evidence about the Plaintiffs’ band card. Katherine testified that the parish priest had the Plaintiffs’ band cards and birth certificates, before correcting herself to say baptismal certificates, and that she received them in an envelope from him and put them in the closet without looking at them. She stated that it was only when the children moved to their father’s after leaving her house that she took them out again and gave them that information.

[308] The parish priest brought them to her before they left the house. Katherine stated that he had obtained them when Sharon needed her surgery. She said he told her at that time about the name changes and that he would bring the documents but that he didn’t bring the documents at that time. It was after Gerald married, that she then asked the parish priest for them, and he said he would get them. She stated that it was the parish priest who talked to the teachers about the name changes.

[309] Without being asked, Katherine spontaneously launched into a discussion about the report cards. Darlene’s report card documents that in Grade 1 she was Darlene Paddy but by Grade 3 she was Darlene Cannon. She said that she would often sign them before the teacher had completed them because she was cleaning at the school, and she would sign it. She claimed there was no name on it when she signed it, so she didn’t read the name.

[310] Then Katherine continued to add detail. She stated that when she signed Darlene’s Grade 1 report card, she saw the name Darlene Paddy but thought her middle name must have been Patty and that the teacher spelled it wrong. She said that it was not on it when she signed it but that it was when she received it. She says that she didn’t worry that Cannon was not on the report card because everyone knew them as Cannons. She then added that when she saw Darlene’s report card a few years later, she didn’t think anything strange about it. She added that there was another child named Paddy Fitzgerald and thought that maybe they had accidentally written that name down.

[311] The story does not make any sense and I find that Katherine Cannon made up the story to overcome the documentary evidence that she knew Darlene’s last name was Paddy when she arrived, that she knew that Gerald and Marie were not married and that Rosie and Darlene’s proper last names were not used by her when the children were in her care. She admits to enrolling the children in school.

[312] Katherine was taken to her examination for discovery from February 11, 2016, where she was asked where she got the band cards. Her answer at that time was that the Plaintiffs’ father gave them to her. When this contradiction was put to her, she said that she was mistaken in 2016 and that she must have misunderstood the question. I did not accept her explanation as truthful.

(iv) Plaintiffs’ Departure

[313] One of the most striking aspects of Katherine’s testimony is what happened after the Plaintiffs’ departure from her home. Nothing. She did not write or call them. She did not visit them. She did not appear to shed a tear when they left and explained this as they wanted to go live with their father.

[314] I have great difficulty accepting that Katherine would, as she testified, raise the Plaintiffs as her own, treat them as if they were her own children, love them as if they were her own and then never have anything to do with them again when they left. This weighs in favour of an inference that Katherine did not treat these children as her own.

E. Bobby Cannon

[315] According to Katherine, Bobby was not around much, and the girls were in bed by the time he got home. He did not witness any abuse or threatening behaviour.

F. Karen Moore’s Evidence

[316] Karen Moore testified that her mother would spank them when they were little but for what she could not remember. She stated that if she was in serious trouble that her dad would also step in and that he really slapped her hand because she was fiddling with an electrical circuit. In cross-examination, she acknowledged that her mother did spank children on the bum when they were small. When they were older, they would get a time out and when they were in high school, privileges would be taken away. However, she stated that she never saw the Plaintiffs being spanked.

[317] Karen Moore denied that she was deputized by her mother to discipline the Plaintiffs. She stated that she was only 15 months older than Sharon and questioned how she could have authority over them. She said that discipline involved being sent to your room and that one time she and Sharon sat face to face in the living room and that it seemed like all day, but it was probably only an hour.

[318] She said that her mother did not swear or use racist language and that there was no belt or strap.

[319] She denied punching Sharon in the nose and said that she used to get nosebleeds.

[320] Karen said that Darlene and her sister Mary used to play with a big bin of balls, or they would be on the swings when they cleaned the school and that Rosie used to love to ride the scrubber.

[321] She was working in Belleville, Ontario at the time the Plaintiffs left the home.

[322] She was a council member of the Algonquins of Ontario in 2009 and she was hired by her mother. The goal was to have a representative from every family. She stated that the cards issued are not Status cards but recognition that the card holder has rights under s. 35 of the Constitution Act, 1982.

[323] I note that while Katherine’s counsel put to Sharon in cross-examination that she would testify that the Plaintiffs had to sit at the back of the church because they were illegitimate children, something Sharon did not remember, Karen did not testify to this. She was not asked about it all. If she had testified to this fact, it would have contradicted Katherine’s evidence that she did not know that the Marie and Gerald were not married.

G. Susan Scott’s Evidence

[324] Susan Scott testified and gave clear evidence that she did not witness the abuse described by the Plaintiffs. She denies that her mother abused the children or that she was deputized by her mother to mete out punishment towards the Plaintiffs.

[325] She has used the card issued by the Algonquins of Ontario.

[326] Susan gave her evidence in a scripted way. She offered little detail in her answers.

H. Vern Cannon

[327] Vern’s evidence was provided by filing of the transcript of his evidence at the first trial. I first denied Katherine’s request to do so in lieu of him being called to give viva voce evidence for reasons given on the record. As further evidence was called, the application was renewed and I granted it, noting that I would assess weight in the context of all the evidence.

[328] Vern worked at the Bicroft Mines. He stated that when the plans were made for Gerald to travel to Ontario with the children that he did not want to chip in for the train ticket if their mother was not coming. He knew that Gerald would not look after the children. He stated that Darlene came first, and that Rose came second to the house and that Sharon came when she was about 11 or 12.

[329] At the first trial, Vern testified that Katherine was responsible for discipline and that he never saw Katherine strike the children. His evidence is of little use because the Plaintiffs testify that Katherine’s abusive conduct happened when he was not present. He stated that there was no belt or razor strap at the house.

[330] At the first trial, there had been evidence that Katherine would slap the children to keep them away from the stove. Vern said that he did not say this, but she would get them by the scruff of their neck and get them to sit away and by this he meant their blouse or shirt collar.

[331] In respect of the meeting with the Belleville/Hastings CAS, which preceded the cancelling of the plans of the escort back to Saskatchewan, Vern stated that he and his brother Phil and Father Casertelli did attend a meeting. All he recalled was that there was a plan for the children to go back out West and that he said they were not going back until they had a name and address and a phone number where the children were going back to.

[332] He said that Katherine never referred to the Plaintiffs as Gerry’s bastards.

[333] Vern did not recall Rosie having seizures.

[334] He said that all three Plaintiffs left the house within the span of a week.

I. Gerald Cannon

[335] In evidence is a statement from Gerald made to the Criminal Injuries Compensation Board in 1996, the essence of which is that the Plaintiffs were never abused in Vern and Katherine’s house. It is typed with Gerald’s signature, and it went into evidence as a business record and the Plaintiffs conceded the truth of the contents. However, at trial, they resisted that Gerald was the author of the document.

[336] The document is of little assistance to me because everyone’s evidence is that Gerald was absent from the house. He was not in a position to write this document and that he did so is highly suspect.

J. Final Note on Evidence - Seizures

[337] It is clear that the Plaintiffs believe that Katherine concocted a story at the first trial of this matter that Rosie suffered seizures as a child and that she was told to hit her on the back. Despite the evidence on this topic, I do not find the evidence to be probative of the issues in this case.

IX. Findings on What Occurred

[338] I have rejected Katherine’s evidence for the reasons set out above.

[339] I find the evidence of Sharon and Rosie about what happened in the house to be credible and, for the most part, reliable. I have accepted some, but not all of Darlene’s evidence. I am not comfortable with much of Darlene’s evidence as, despite the confidence and certainty with which it was presented, it had the air of embellishment and exaggeration. I accept that she wanted revenge against Katherine. I approach her evidence with caution.

[340] Katherine’s children who testified said that the abuse claimed did not occur. I found the testimony to be scripted. While Karen did seem truly sad or hurt that the Plaintiffs left, she has not reached out to them. Karen and Susan’s evidence does not tip the balance in Katherine’s favour. It cannot overcome the detailed evidence given by the Plaintiffs about what occurred.

[341] In making this assessment of the evidence, I acknowledge that each of the Plaintiffs had great difficulty acknowledging that their mother was not in a position to look after them. This is understandable. Marie was deserving of the Plaintiffs’ loyalty in this respect. She was not given a chance to either parent them on her own, or to be a part of their lives in another way if she was unable to look after them alone. The decision did not have to be all or nothing as the records clearly indicate.

[342] Marie’s desire to parent was subject to the scrutiny of others. She was treated differently because she was an Indian and the Indian Agent exercised discretionary control about whether she could reunite with her children. The level of scrutiny heaped on her is in stark contrast to the white women who cared for the Plaintiffs in their childhood. Obstacles were put in Marie’s way that were not put in the way of others.

[343] I must now decide whether the evidence that I accept, the Plaintiffs’ evidence together with the documentary evidence, proves the Plaintiffs’ case against Katherine.

[344] I find that it does on a balance of probabilities.

[345] The evidence establishes that Katherine assaulted the Plaintiffs by beating them, whipping them on their bodies with a belt and a razor strap. The evidence of Sharon, Rosie and Darlene allows me to conclude both that this occurred and that it occurred on a regular basis. As a result, the Plaintiffs lived in a constant state of fear. I find that they were threatened with harm if they did not do what they were told and that Katherine threatened to injure them if they ever told anyone about the abuse. I accept that there was a climate of fear that one would do what they were told or be hit. This includes threats of physical violence if they did not comply with her demands to clean the St. Ignatius School.

[346] I accept that the threats and beatings were intentional.

[347] The Plaintiffs have proven that Katherine verbally abused them with language that was racist and derogatory. I accept that she used language that was derogatory and belittling. This also included belittling Marie and her identity as a Cree woman.

[348] The Plaintiffs were forced to perform the majority of the chores both inside and outside of the house.

[349] The Plaintiffs allege that Katherine told them that they were worthless Indians and that is why no one wanted them. I accept that Katherine called the Plaintiffs Indians based on Darlene’s evidence, but the evidence does not support that she called them worthless Indians and that is why no one wanted them.

[350] I also accept that Katherine knew and did not tell them their true legal names and changed their legals names contributing to a loss of identity.

[351] Because of these findings, the elements of breach of fiduciary, assault, and battery are made out.

[352] Physical abuse by a parent or someone standing in the shoes of a parent is a breach of fiduciary duty.

[353] The tort of battery is made out because of the intentional unlawful application of force upon the Plaintiffs.

[354] The tort of assault is made out as the Plaintiffs have established that Katherine threatened them with force.

[355] Because below I find that Katherine’s intentional conduct caused a significant injury to the Plaintiffs, I also accept that they have made out the tort of intentional infliction of mental distress.

[356] Last, Katherine fell well below the standard of care of a caregiver. While I did not receive evidence on the standard of care, I can safely conclude because of the nature of the conduct, that she breached it.

X. Injuries Suffered by the Plaintiffs

[357] I will now address the injuries suffered by the Plaintiffs, both as a result of Canada’s breaches and as a result of Katherine’s conduct.

A. Name

[358] That Sharon’s last name was changed from Paddy to Cannon on the Statement of Live Birth did not appear to interfere with her life. I have no information on who made the change to her birth certificate. I cannot lay this at the feet of the Defendants. I also find this did not cause her significant harm.

[359] Rosie is a different story. I accept that her birth was registered as Rosemarie Paddy and that, without legal authority, she was called Cannon. She also acknowledged that her dad should have told them their names. The two names have presented a challenge to her attempts to obtain a pardon. It should now be clear that when she was brought to Ontario, she was enrolled in school and called Rose Cannon but that her legal name was Rosemarie Paddy. She is now Rosemarie (Rosie) Christie.

[360] Rosie’s name may have deprived her of an opportunity to meet her mother earlier in life.

[361] In 1979, when Rose was having trouble, Marie wrote to the Hastings (Kawartha) CAS. Somehow Marie must have heard about her being connected to care. Marie wrote to the CAS saying that she had a house and a job. The CAS wrote back saying that her daughter was not known to them.

[362] At the time, Rosie was a ward of the CAS and at Training School in the Kawartha Lakes District. The CAS records contain a note that Rose had a fantasy to live with her mom in Alberta. Here she was, with the opportunity to be reunited with her mother in 1979, and the dots were not connected.

[363] Another note tendered in evidence suggests that on November 23, 1979, the CAS did connect the dots. It discerned that Rosemarie Paddy had been known to the agency as Rose Cannon. She had gone to Training School but had been discharged. The CAS worker contacted Rose’s probation officer to explain about this error in information given to Marie. She agreed to make sure that Rose was informed of her mother’s interest. The note suggests that Rose had been in contact with the mother quite recently.

[364] The confusion in Rosie’s name did appear to interfere with her ability to get work and still presents challenges today.

[365] There has been confusion with Darlene’s name as well. She did not obtain her birth certificate until 1980. That is when she learned that her last name was Paddy. She calls the Cannon name her slave name from the time that she was in Maynooth. There were issues with her identification as well such that she has had to use two forms of identification. She hopes that through a name change for which she has applied that all of her identification will soon reflect her last name as Paddy.

[366] I do not have sufficient evidence to support that Darlene’s name has presented challenges to her workwise.

B. Education & Employment

[367] Each of the Plaintiffs made a hasty departure from Katherine’s home which interfered with the completion of their education. Each of the Plaintiffs later sought further education and were able to secure gainful employment. Their ability to do so was delayed in my view, because of the interrupted transition to adulthood. Despite what they were told as children, they are all bright and articulate.

[368] I accept that each of them lost years of employment because of the interrupted transition into adulthood caused by them needing to flee the violence and abuse in the home.

[369] Unfortunately, I do not have sufficient evidence to order damages for loss of income and I make no award.

C. Psychological Harm

(i) Sharon

[370] In some ways, Sharon felt the loss of the parents most acutely. This is because she remembered life with her parents and was old enough to have clear memories of her mother when she was brought to Ontario. Sharon never stopped asking to be with her mother and the Government records document that.

[371] At the same time, she spent less time in Katherine’s care.

[372] Upon graduating, Sharon experienced racism as she was not able to find work, although properly trained.

[373] In adulthood, Sharon had a number of abusive relationships as described above. The father of her children died in tragic circumstances, and she was left to raise those children alone.

[374] Dr. Judith Johnson is a clinical psychologist whose dissertation was in child maltreatment and who treated Sharon after she was referred. I permitted her to give opinion evidence. She diagnosed Sharon with illnesses of an enduring nature, schizoid personality disorder with self-defeating and borderline personality disorder features, major depression (transitory) and anxiety of a moderate intensity.

[375] Schizoid refers to Sharon as being very withdrawn and that she was living a rather insular or flat existence with her emotions muted. Part of this is likely due to her time in the convent as she did not have friends and she was unable to socialize.

[376] Dr. Johnson stated that borderline personality disorder features tend to be related to abuse. They include the inability to modulate emotion, and we learn to claim our emotions when we are comforted, and if we lack that, and are in an abusive setting, it can have a profound impact leading to this disorder and depression and anxiety.

[377] She stated that abuse would make Sharon prone to a mental disorder.

[378] In cross-examination, Dr. Johnson agreed that removal from her community will cause harm. She agreed with this statement from Brown, supra, at para. 7:

The impact on the removed aboriginal children has been described as “horrendous, destructive, devastating and tragic”. The uncontroverted evidence of the plaintiff’s experts is that the loss of their aboriginal identity left the children fundamentally disoriented, with a reduced ability to lead healthy and fulfilling lives. The loss of aboriginal identity resulted in psychiatric disorders, substance abuse, unemployment, violence and numerous suicides. Some researchers argue that the Sixties Scoop was even “more harmful than the residential schools”.

[379] That paragraph goes on to note, although not specifically adopted by Dr. Johnson that:

[R]esidential schools incarcerated children for 10 months of the year, but at least the children stayed in an Aboriginal peer group; they always knew their First Nation of origin and who their parents were and they knew that eventually they would be going home. In the foster and adoptive system, Aboriginal children vanished with scarcely a trace, the vast majority of them placed until they were adults in non-Aboriginal homes where their cultural identity and legal Indian status, their knowledge of their own First Nation and even their birth names were erased, often forever.

[380] Dr. Johnson did not have all of the information that the court had. When she worked with Sharon, Sharon’s primary issues were the abuse she suffered at Katherine’s hands. Dr. Johnson worked with Sharon as she presented.

[381] I do not accept the Defendant’s assertion that Dr. Johnson was biased. She was a participant expert, and she had a relationship with her patient. She was independent and fair to the court in presenting her opinion. I accept her opinion that Sharon’s presenting problems are the product of childhood maltreatment and that childhood maltreatment led to her developing mental health problems.

[382] I accept that Katherine’s conduct was not the only cause of Sharon’s psychological problems, but I find that it materially contributed to them.

(ii) Dr. Feak’s Assessment of Darlene and Rosie

[383] I have discussed some of Rosie’s problems above.

[384] The Plaintiffs called Dr. Markus Feak. Dr. Feak is also a clinical psychologist. His practice has a strong emphasis on trauma and he has dealt extensively with trauma in the Indigenous community, particularly in the Peterborough area and with persons from Curve Lake First Nation, Alderville, and Hiawatha.

[385] He had 12 sessions with Rosie and four with Darlene. He conducted standardized testing.

[386] Dr. Feak diagnosed Darlene with a Generalized Anxiety Disorder and a Mood Disorder Not Otherwise Specified. A Generalized Anxiety Disorder is the diagnosis for someone who is excessively worrying about every little thing. It represents a state of continuous worrying - an inability to shut down the mind and relax. It is typically a long-term diagnosis, and it is often seen in persons who experienced trauma, where the person’s acute conditions had declined. This would be the case if a person experienced PTSD where the acute phase can last three to four years but after time, it may be that only a Generalized Anxiety Disorder remains.

[387] The abuse caused major damage to Darlene’s self-esteem. Dr. Feak explained that while abuse can lead some people to feel worthless, others react differently. He said that Darlene shows some narcissistic personality traits. Further, under the impact of the alleged abuses, she has tended to puff up her own self-esteem to see herself stronger, more talented, more virtuous, in order to regain self esteem. This results in an exaggerated form, but it is directly related to the abuse which is alleged.

[388] He stated that Darlene did benefit from her time in Saskatchewan. She recovered some sense of herself by spending time with elders.

[389] Dr. Feak diagnosed Rosie with alcohol abuse and as a secondary diagnosis, a possible histrionic personality disorder, which needed to be ruled out. He noted that she shows many traits of it but that it is not a formal diagnosis.

[390] He observed that Rosie was fragile. She was doing her best with her damaged self-esteem. She acknowledged to him her alcohol abuse and the legal issues that had affected her as a teenager. He stated that she tends to put interests of others first, something that I witnessed in this courtroom. She was reluctant to consider treatment as she did not want to dig up the past and preferred to seek supports of the native community.

[391] Dr. Feak opined that at a very young age she adopted a style in which she reads others very well and then tries to conform her behaviour. This type of presentation is frequently seen in abused children. They learn to anticipate body language and placate the individual, in order to try to keep the peace around them.

[392] Dr. Feak agreed that both Darlene and Rosie appear to overemphasize the actions of Katherine compared to other events in their life. He agreed that to describe the psychological conditions of Rosie and Darlene as only as consequences of the actions of Katherine Cannon would represent an exaggeration as he agreed that the symptoms which they experience can be from different causes.

(iii) Conclusions on Harm

[393] I accept the evidence of Dr. Johnson and Dr. Feak and find that it demonstrates that the Plaintiffs were harmed by their separation from their parents and community and that their presentation is consistent with childhood maltreatment. This evidence allows me to find on a balance of probabilities that the Plaintiffs suffered psychological injury as a result of Katherine’s abusive conduct.

D. Loss of Culture, Language, and Identity

[394] The Plaintiffs lost their culture, language, and identity. As became clear in their evidence, they were like immigrants in their own nation and outside of it. They never felt at home outside of Thunderchild First Nation, and they never felt truly at home at Thunderchild First Nation.

[395] The reunion video tendered is a powerful reminder that the Plaintiffs lost their nation, their culture, their language, and their community when they were separated from their mother. They lost things integral to their well-being: access to ceremony, the beat of the drum, the dance, the regalia and the power of the celebration of their identity and the richness of their community and its tradition.

[396] Each day that the Plaintiffs are living, they are living without the attachment to that life that would have existed had Canada not breached its duty to them.

XI. Damages

[397] It is the general principle that damages are intended to put the Plaintiffs back in the position they would have been had the harm not occurred.

A. Abuse

[398] The Defendants each committed a legal wrong that led to the Plaintiffs experiencing abuse in the manner set out above. While the harm was committed by each Defendant in different ways, the harm is indivisible. In my view, the Defendants should be jointly and severally liable for that harm, even though the claim against Canada is for breach of fiduciary duty and the claim against Katherine is in tort.

(i) Legal Principles

[399] I note that the focus should be a just result. In A.C. v. Y.J.C., 2003 CanLII 2464 (ONSC), Justice Molloy considered compensation for a breach of fiduciary duty. She noted at para. 76:

In recent years, courts have tended to merge the principles of law and equity when necessary to achieve a just result. The redress available to a plaintiff in a given case is, therefore, unlikely to vary based on whether the action is framed in equity or tort, unless there are different underlying policy considerations mandating different treatment: Canson Enterprises Ltd. v. Broughton & Co. (1991), 1991 CanLII 52 (SCC), 85 D.L.R. (4^th) 129, [1991] 3 S.C.R. 534; M. (K.) v. M. (H.) at 336-337. Equitable compensation is available to redress equitable wrongs such as breach of fiduciary duty on much the same basis as compensatory damages would be available in a torts case. The concept of equitable compensation is also broad enough to encompass what would in appropriate circumstances be awarded as punitive damages in a tort case. In M.(K.) v. M.(H.), the Court held that redress for the plaintiff (a victim of incest) would be the same whether calculated in tort or breach of fiduciary duty. LaForest J., writing for the majority, held at p. 337:

The question in this appeal is whether there are different policy objectives animating the breach of a parent’s fiduciary duty as compared with incestuous sexual assault. In my view, the underlying objectives are the same. Both seek to compensate the victim for her injuries and to punish the wrongdoer. The jury award of general damages was made with the full knowledge of the injuries suffered by the appellant and her rehabilitative needs. The same concerns would apply in assessing equitable compensation, and as such I would decline to provide any additional compensation for the breach of fiduciary obligation. The punitive damages award should also not be varied in equity. Of course, equitable compensation to punish the gravity of a defendant’s conduct is available on the same basis as the common law remedy of punitive damages . . .

[400] While the Defendants committed different legal wrongs, I find they should be jointly and severally liable for the harm resulting from the abuse.

(ii) Causation and Material Contribution

[401] I must now address the argument that there are other causes of the Plaintiffs’ injuries. Indeed, many terrible things happened to the Plaintiffs in their life. They were separated from their parents at an early age when they were taken into care. Sharon experienced a terrible trauma in foster care that I will not detail here. They then were brought across the country to be with their grandmother who was loving, but died soon after their arrival. They were totally vulnerable. They could not count on their father and their mother was absent. The siblings were split up and lived with virtual strangers. While Darlene and Rosie lived together in Katherine’s house, it was in a climate of fear where they were belittled and treated like servants. Sharon spent many of her early years in a convent.

[402] Later, other harm made an impact on them. All of the Plaintiffs have experienced sexual assault in their lives.

[403] There is no doubt that all of these experiences have caused them harm and have had a negative impact on their psychological well-being.

[404] However, the law does not excuse a defendant because there are other causes of a plaintiff’s injuries. If a negligent defendant materially contributed to a harm, they will be liable for that harm. See: Athey v. Leonati, 1996 CanLII 183, [1996] 3 S.C.R. 458, at paras. 15-17.

[405] The case in A.C. v. Y.J.C, supra, involved psychological harm where it was argued that the harm should be divided. Justice Molloy found that the harm was indivisible. While that action was for breach fiduciary duty, she applied the Athey v. Leonati, supra, material contribution analysis to breach of fiduciary duty. I adopt that approach here.

[406] I find that both Canada and Katherine materially contributed to the harm, and I find them jointly and severally liable for their pain and suffering.

(iii) Quantum

[407] Domestic abuse and family violence have a long-term impact on children throughout their lives. In Barendregt v. Grebliunas, 2022 SCC 22, the Supreme Court of Canada states, at para. 143:

The suggestion that domestic abuse or family violence has no impact on the children and has nothing to do with the perpetrator's parenting ability is untenable. Research indicates that children who are exposed to family violence are at risk of emotional and behavioural problems throughout their lives. Harm can result from direct or indirect exposure to domestic conflicts, for example, by observing the incident, experiencing its aftermath, or hearing about it.

[408] In Calin, supra, this Court considered a prolonged pattern of abuse as a reason to award higher damages. Calin involves a claim brought forth by adult daughters against their father for physical, psychological, and emotional abuse. They claimed that they suffered from post-traumatic stress disorder, depression and anxiety as a result of their father’s abuse and wanted compensation for pain and suffering, medical costs and lost income (Calin, supra, at para. 8).

[409] Justice Gomery found that the father’s actions exceeded the “reasonable discipline” that parents may impose on their children, was negligent, and was a breach of his fiduciary duties to them (Calin at para. 13). The daughters were awarded general damages of $50,000 and $35,000 respectively.

[410] In determining the amount in general damages that should be awarded, the Court stated at para. 339:

In my view, abuse of a child by a parent over many years should attract more than modest damages, even in the absence of any serious physical injury. […] The plaintiffs have however suffered pain and fear that a child should never experience, much less at a father's hands. His abuse caused emotional and psychological scars that Ana and Ilinca will bear their entire lives.

[411] The alleged abuse in Calin included beatings and consistent physical abuse, cutting off chunks of hair during an argument, threats, locking the children outside during winter in improper clothing.

[412] Due to the nature of the abuse, an additional $10,000 in punitive damages was awarded. The Court explained its reasons in para. 362:

Liviu subjected his daughters to harsh physical punishments and made them feel terrible about themselves. They have no physical scars, but they will carry the emotional scars all of their lives. This conduct deserves sanction beyond general damages. It is a marked departure from the standards we would expect of a parent. A punitive damage award is appropriate to denounce the defendant’s behaviour and signal to others that physical and emotional abuse of children will attract significant sanctions. [Emphasis added.]

[413] In this case, the Plaintiffs endured abuse from a very early age at Katherine’s hands. It should be on the high end of damages. Because they were belittled, treated differently from others, hit with a belt and a razor strap, treated as servants, and left vulnerable, I am of the view that it should be on the high end of damages. They lost their childhood. In my view, A.C. v. Y.J.C., supra, is more aligned with this case.

[414] I therefore award $100,000 to each of the Plaintiffs as compensation for their pain and suffering for which the Defendants are jointly and severally liable. I appreciate that the losses hit each of them differently but, in the end, the harm that they suffered is very similar and for that reason, I award each the same amount.

[415] I also find that it is appropriate to make an award of punitive damages payable by the Defendant Katherine to denounce her conduct. Each of the Plaintiffs shall be entitled to an award of $10,000.

B. Loss of Culture, Language and Identity

[416] The Plaintiffs claim that they lost their culture, language, and identify as a result of Canada’s breach and that compensation should be award. In my view, the harm is a distinct harm than the pain and suffering resulting from the emotional abuse.

[417] The loss of their culture, language and identity, is the direct result of Canada’s breaches. While Katherine played a role, I find that the responsibility is primarily Canada’s. In addition, Canada’s conduct deprived them of contact with their mother.

[418] In Brown v. Canada (Attorney General), supra, Justice Belobaba recognized that loss of culture, language and identity arising from a breach of fiduciary duty is a compensable loss. The Plaintiffs’ loss occurred through a breach of fiduciary duty although the mechanism is distinct from that in Brown.

[419] In the motion for settlement approval in that followed, Justice Belobaba approved a settlement where payments would be capped at $50,000 and the actual amount given would depend on the number in the class. That settlement would follow a one-page application by individual claimants. He was satisfied that given the risks of further litigation, that the settlement was fair and reasonable. (See: Brown v. Canada (Attorney General), 2018 ONSC 3429 at paras. 14-25)

[420] In Riddle v. Canada, 2018 FC 641 , [2018] 4 F.C.R. 491, the Federal Court approved a class for the purpose of settlement approval. The court held that the settlement, which included payments to claims of between $25,000 to $50,000 as being fair and reasonable, mirroring the Brown settlement.

[421] There was no settlement here. The Plaintiffs bore the full risks of proceeding to trial. I am satisfied that the quantum at trial should be much higher. On the evidence before me, this loss is considered worse than the impact of residential schools where we know many students suffered physical, psychological, and sexual abuse.

[422] I therefore make an award in excess of the quantum that I have ordered for pain and suffering arising from the abuse and I award $150,000 to each of the Plaintiffs payable by the Defendant Canada.

[423] The Plaintiffs shall also be entitled to interest on the damages that I have ordered at the Courts of Justice Act rate from the date of the commencement of this action.

XII. Costs

[424] In its Costs Endorsement, the Court of Appeal directed that the issue of costs for the first trial is to be determined by the new trial judge.

[425] As the Plaintiffs were successful here, they are presumptively entitled to their costs.

[426] If the parties cannot resolve costs by January 15, 2024, they shall arrange for a judicial case conference with me through the Trial Coordinator to discuss the process for costs submissions for these two trials.

XIII. Acknowledgements

[427] This was a difficult trial for the parties. The Plaintiffs were self-represented. It was a hybrid trial. COVID was still a concern and I had to shift to a remote attendance for part of the trial. The parties and the court staff had to nimbly respond to these issues as they arose and I am grateful for everyone’s assistance.

[428] I want to acknowledge counsel’s assistance for fulfilling both their responsibilities to the court and the administration of justice when self-represented parties are involved and their responsibilities to their clients.

[429] I want to acknowledge the Plaintiffs’ thoroughness of their preparation and their facility with Caselines. Ms. Christie ably navigated Caselines better than most lawyers who appear before me. I appreciate their efforts in ensuring that the matter could be dealt with as fairly and efficiently as possible.

Justice S.E. Fraser

Date: November 30, 2023

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

DARLENE PADDY-CANNON, ROSEMARIE ETHEL CHRISTIE and SHARON GERALDINE CANNON

Plaintiffs

– and –

THE ATTORNEY GENERAL OF CANADA and KATHERINE CANNON

Defendants

REASONS FOR JUDGMENT

Justice S.E. Fraser

Released: November 30, 2023