Law Times

LAW TIMES • MARCH 10, 2014 PAGE 15 www.lawtimesnews.com Class actions give new life to art of pleading n a legal world where sub- stance increasingly triumphs over form, the art of pleading appeared to have been losing some of its signifi cance. e ad- vent of class actions in Canada, however, has given it new life. "People are being forced to be precise in pleadings and accu- rately and fairly state their material allegations and causes of action," says Margaret Waddell of To- ronto's Paliare Roland Rosenberg Rothstein LLP. "Otherwise, they are subject to attack." While circumscribing the class may perhaps be the most com- mon example of the renewed em- phasis on pleading, it has also as- sumed considerable signifi cance around issues of joint and several liability in class actions. "We deal with joint and several liability ad nauseam when we're negotiating Pierringer agreements [where only some of the defen- dants settle] and in the many cases where defendants are trying to pass on or share the blame with others," says Waddell. Recently, Justice Gillian Butler of the Supreme Court of New- foundland and Labrador tackled the complex issue head-on in An- derson v. Canada (Attorney Gen- eral), an institutional abuse case in which the pleadings played a ma- jor part in the court's determina- tion of the propriety of third-party proceedings. e history of the case is com- plex. e plaintiff s, represented by Kirk Baert and Celeste Pol- tak of Toronto's Koskie Minsky LLP as well as Chesley Crosbie of St. John's, N.L., sought damages against the federal government for physical and mental harm alleg- edly suff ered at residential schools in Labrador a er joining Confed- eration in 1949. e Supreme Court certifi ed the action in 2010, a decision the Newfoundland Court of Appeal upheld in 2011. Canada then sought to add the province and others as defendants, but Butler denied that request in 2012. Subsequently, Canada sought to add the same parties as third parties. In November 2013, But- ler severed/stayed the claims on the condition that the plaintiff s restrict their cause of action to breach of fi duciary duty. Apart from breach of fi duciary duty, the plaintiff s had also based their case on allegations of negli- gence rooted in Canada's general duty of care to the residents that arose through the joint operation of its homes with the government's servants, offi cers, employees, and agents. ey sought damages for the harm caused by Canada di- rectly or on the basis of vicarious liability. " is causes Canada to argue that there is a contradiction within the plaintiff s' position, asserting a singular duty on the one hand [the fi duciary duty] and a joint duty [the duty of care] on the other," wrote Butler. "I make no conclusion on whether such claims are contradictory; I note only that both are alleged and represent very diff erent forms of potential responsibility, which has compli- cated my assessment of whether the third party claims should be struck or severed/stayed." Canada defended on the basis that it didn't run the schools and neither owed nor had breached any duties to the plaintiff s. Rather, counsel argued, the schools were the responsibility of third parties, including the province, the Inter- national Grenfell Association, the Moravian Church in Newfound- land, and the Moravian Union. e province denied that it created, managed or operated the schools but it admitted that the Grenfell association, the Moravi- ans, and the Labrador and West- ern school boards had done so. It took the position that liability rested solely with Canada but also sought contribution and indem- nity from the other third parties. e plaintiff s moved for an or- der staying or severing the third- party proceedings, but at the hear- ing of the motion, they sought to strike the claims. Noting Canada had conceded that the claim based on fi duciary duty couldn't be the subject of a third-party claim for apportion- ment, the diffi culty, as Butler saw it, was the plaintiff s had also plead- ed a general duty of care specifying that Canada was vicariously liable for the actions of others, including the province. "If this is established at the common issues trial, Canada (as the only defendant) may be found liable for 100 per cent of the losses suff ered by the plaintiff s from the actions of Canada and others," wrote Butler. "In such a case, Canada could seek contribution from those oth- er persons." Still, the plaintiff s argued there were no tenable third-party claims on the general duty of care because they had limited their case to damages caused solely by Canada. Butler, however, found the statement of claim didn't limit the damages claimed to Canada's FOCUS Get insightful interpretation of the latest developments in Federal Court Rules, jurisdiction, and practice. 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See Time, page 16

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