Docket: CACV2484 Lillian Emily Ross, also known as Lillian Emily Tremblay, Dorothy Ida Humphries, Brenda Lee Watier, also known as Brenda Lee Mccullough, Linda Ann Hart, Hector Joseph Ratt, Frank Victor Douglas, Rene Dana Bird, Archie David Vanderkracht, Jeannie Ross, Lester Roberts, Jessie Nelson, Also Known As Louisa Tremblay, Geff Misponas, Alice Caroline Roberts, also known as Alice Caroline Mckenzie, Richard Jamie Ratt, Eugene Mirasty, Susan Mckenzie, Caroline Beatrice Mckenzie, al, 2014 SKCA 96

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 96 Date: 2014-09-18 Between: Docket: CACV2484 Lillian Emily Ross, also known as Lillian Emily Tremblay, Dorothy Ida Humphries, Brenda Lee Watier, also known as Brenda Lee Mccullough, Linda Ann Hart, Hector Joseph Ratt, Frank Victor Douglas, Rene Dana Bird, Archie David Vanderkracht, Jeannie Ross, Lester Roberts, Jessie Nelson, Also Known As Louisa Tremblay, Geff Misponas, Alice Caroline Roberts, also known as Alice Caroline Mckenzie, Richard Jamie Ratt, Eugene Mirasty, Susan Mckenzie, Caroline Beatrice Mckenzie, also known as Caroline Beatrice Clarke, Alice Mary Clarke, Willard Thompson Halkett, Debbie Halkett, Wayne Rusty Forest, Josephine Debra-anne Forest, Charlie Claire Forest, Korla Cherie Bird, Eldon Edward Bird, Colin Halkett, Jason Robin Forest, Toby Daryle Forest and Glen Henderson Prospective Appellants (Plaintiffs) - and - The Government of Saskatchewan and The Attorney General of Canada Prospective Respondents (Defendants) Before: Ottenbreit J.A. (in Chambers) Counsel: E.F.A.

Merchant, Q.C., for the prospective appellants Darryl J. Brown and Audrey L. Olson for the Government of Saskatchewan David C. Culleton for the Attorney General of Canada Application:

From: 2013 SKQB 373 Heard: February 26, 2014 Disposition: Leave Granted Written Reasons: September 18, 2014 By: The Honourable Mr. Justice Ottenbreit OTTENBREIT J.A. I. Introduction [ 1 ] Lillian Ross and the other prospective appellants (collectively referred to as “Ms. Ross et al. ”) apply for leave to appeal the decision of the Chambers judge who refused to certify a proposed class action pursuant to The Class Actions Act , S.S. 2001, c. C-12.01 (the “ CAA ”) against the Government of Saskatchewan (the “Province”) and the Attorney General of Canada (“Canada”).

For the reasons hereinafter set forth, leave is granted. [ 2 ] The claim of Ms. Ross et al. involves allegations of abuse and mistreatment against them arising from the operation of the Timber Bay Children’s Home (the “Home”) and the Timber Bay School (the “School”) in northern Saskatchewan. The claim is framed in terms of a residential school claim. An application made by Lac La Ronge Indian Band on behalf of people who attended the Home to be added to the Indian Residential School Settlement Agreement (“IRSSA”) as an institution was unsuccessful. That decision is under appeal.

This class action exists independently of IRSSA. II. Facts and Background [ 3 ] The Chambers judge set forth some of the factual circumstances that for the most part do not appear to be in issue: 4 Before dealing with the specific requirements of s. 6 of the Act , it is useful to go through some of the common factual circumstances that do not appear to be in issue. The plaintiffs are all former residents of the Home, also known as Montreal Lake Evangelical Children’s Home, and the defendants are the Government of Saskatchewan and the Government of Canada.

The Northern Canada Evangelical Mission (“NCEM”) was the owner/operator of the Home primarily for Aboriginal children at Timber Bay, Saskatchewan. Ownership and control of the Home were turned over to the Mennonite Central Committee for a short time and then taken over by the Brethren in Christ Conference (“BIC”) until it was closed. The Home was controlled by a board of directors chosen by the institutions mentioned. The staff of the Home was hired by the board. The Home was established with a biblical mandate as part of the Christian mission of the institutions that owned and operated it.

The Government of Saskatchewan and the Government of Canada did not appoint members to the board of directors of the Home and had no direct involvement in the operation of it. Both defendants did provide funding for the operation of the Home. They were not the exclusive source of funding. [ 4 ] Some of the children that lived at the Home were placed there by their parents. Some were placed there by the Provincial Government Department of Social Services as wards of the Province.

The children at the Home attended either the school at the Montreal Lake Reserve under the jurisdiction of the Government of Canada or the School which was under the jurisdiction of the Government of Saskatchewan. The owner and operator of the Home from time to time played no

part in the operation of the Timber Bay School nor was the staff of the Timber Bay School employed by, or dismissed by, the Home’s operators. There were no employees identified who were holding employment with both the School and the Home at the same time. [ 5 ] The Chambers judge, when he refused to certify the class action, made a number of decisions and determinations which are germane to the proposed grounds of appeal of Ms. Ross et al. : 1. The role of the Province and Canada in the Home and School was limited to partial funding and the Home operated autonomously of the Province and Canada; 2.

The pleadings do not disclose a duty of care and cause of action against the Province and Canada for this reason; 3. The pleading of breach of fiduciary duty fails because funding cannot be the basis of this cause of action and because Ms. Ross et al. failed to allege that Canada and the Province acted in their own self-interest and against Ms. Ross et al. ’s interest; 4. There were no facts pleaded in the statement of claim which would support a claim of aggravated and exemplary damages; 5. The description of the proposed class required revision and inappropriately included certain persons; 6.

The class action was not a preferable procedure primarily because Northern Canada Evangelical Mission (“NCEM”) and Brethren in Christ Conference (“BIC”), the operators of the Home, were not joined as parties and because possible limitation defences could not be dealt with as a common issue; and 7. Ms. Ross et al. was not entitled to an adjournment to make another certification application because the difficulties facing them were simply insurmountable and could not be corrected by attempting to redraft the statement of claim.

III. The Test Regarding Leave [ 6 ] The criteria to be applied in determining whether leave to appeal ought to be granted is well known as set forth by this Court in Rothmans, Benson and Hedges Inc. v. Saskatchewan , 2002 SKCA 119 , 227 Sask. R. 121, at para. 6 . Essentially the proposed appeal must be of sufficient merit to warrant the attention of the court and of sufficient importance to the proceedings before the court, or to the field of practice or the state of the law, or to the administration of justice generally. IV. The Notice of Appeal [ 7 ] Ms.

Ross et al. ’s draft notice of appeal contains 14 grounds, many of them rambling and containing some argument. These can be conveniently summarized as follows: 1. The Chambers judge erred by incorporating into the s. 6(1)(

d) inquiry of the CAA a requirement that Ms. Ross et al. join as defendants the direct operators of the Home thereby reverting to a compulsory joinder rule; 2. The Chambers judge erred by determining that mere funding by the Province and Canada cannot be the basis for liability to Ms. Ross et al. ; 3. The Chambers judge erred by determining that the claim for breach of fiduciary duty did not disclose a cause of action; 4.

The Chambers judge erred by determining that the provision of funding of the Home by the Province and Canada did not give rise to a duty to supervise or otherwise subject the Home to oversight; 5. The Chambers judge erred by finding that the potential of individual limitation defences was a bar to certification; 6. The Chambers judge erred by inappropriately making findings of fact rather than taking the facts as pleaded to be true; 7. The Chambers judge erred by refusing to allow Ms. Ross et al. to further amend the claim and bring a further application for certification; 8.

The Chambers judge erred by proposing revised class

definitions with different temporal limits rather than one class with the possibility of subclasses; 9. The Chambers judge erred by determining that there were no facts pleaded to establish the claim for aggravated and exemplary damages; and 10. The Chambers judge erred by failing to give adequate reasons to support his decision. V. Position of the Parties [ 8 ] With respect to the merits of the leave application, Ms. Ross et al. submitted that the appeal is neither frivolous nor vexatious, has sufficient merit and is not destined to fail. Moreover, Ms.

Ross et al. argued the proposed appeal will not cause any undue delay. With respect to the importance of the prospective appeal, Ms. Ross et al. submitted it raises important questions of law that are significant to the case at bar, that the Chambers judge applied theories inconsistent with prior jurisprudence, and that these areas are novel and relate to developing areas of law. Ms. Ross et al. argued that the outcome of the appeal will also be significant to the proceedings which will effectively be ended if leave is refused. [ 9 ] The Province argued that Ms.

Ross et al. failed to meet both arms of the Rothmans test and that leave should be denied. The Province lists various reasons: 1. The decision is discretionary and entitled to considerable deference; 2. Ms. Ross et al. failed to meet the “plausible basis” test and failed to show that the class had a “genuine or apparently authentic cause of action on the basis of the facts as pleaded and the law that applies”; 3. The law is well settled that funding cannot result in liability of any kind of the funder for the acts of the organization receiving the funding; 4. No fiduciary duty by the Province to Ms.

Ross et al. has been established; and 5. The Chambers judge properly balanced the considerations regarding preferable procedure and properly addressed limitation defences and joinder of parties in that context. [ 10 ] The Province argued that with respect to whether the appeal is of sufficient importance that the obviousness of the lack of merit demonstrates its unimportance.

[11] Canada takes essentially the same position as the Province. Its reasons for doing so include: 1. The Chambers judge properly made a finding of fact that Canada played no

part in the management or operation of the Home; 2. The Chambers judge properly concluded that funding of the Home or School did not create a duty of care in negligence; and 3. The Chambers judge correctly concluded that the pleadings disclosed no cause of action for breach of fiduciary duty. [12] Its arguments regarding preferable procedure mirror that of the Province. VI. Analysis [13] I turn first to some of the law which provides a lens to provisionally view how the issues raised in the prospective grounds ofappeal may have been dealt with by the Chambers judge.

How the issues were dealt with then informs the merit analysis under the firstbranch of the Rothmans test. [14] The question for the judge on a certification application is to determine whether the prerequisites for certification under s. 6(1) ofthe CAA are met. The first question is whether the pleadings disclose a cause of action. [15] The test of whether the pleadings in a class action disclose a cause of action was recently reiterated by Richards J.A. (as he then was) in Alves v. First Choice Canada Inc., 2011 SKCA 118, 342 D.L.R. (4th) 427: 17 The decision of this Court in Hoffman v.

Monsanto Canada Inc., 2007 SKCA 47, 283 D.L.R. (4th) 190 speaks to the burdenborne by a plaintiff seeking to certify a class proceeding. Cameron J.A. indicated that, as regards the requirement that the pleadingsdisclose a cause of action, the proposed representative plaintiff must show a plausible basis for supposing the defendants could be liableto the claims of the class. He wrote as follows at para. 50: ... the representative plaintiffs must persuade the court that there exists a plausible basis for supposing the defendants could be liable tothe claims of the class.

This is a way of saying, simply and effectively, that the representative plaintiff has to satisfy the judge that thepleadings disclose an apparently authentic or genuine cause of action on the basis of the facts as pleaded and the law that applies. ... 18 This is the touchstone for any consideration of s. 6(1)(

a) of the Act. Several points raised by the appellants must be examined inlight of it. [16] More recently, in Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477, Rothstein J. stated: 63 The first certification requirement requires that the pleadings disclose a cause of action. In Alberta v. Elder Advocates of AlbertaSociety, 2011 SCC 24, [2011] 2 S.C.R. 261 (“Alberta Elders”), this Court explained that this requirement is assessed on the samestandard of proof that applies to a motion to dismiss, as set out in Hunt v. Carey Canada Inc., (SCC), [1990] 2 S.C.R.959, at p. 980.

That is, a plaintiff satisfies this requirement unless, assuming all facts pleaded to be true, it is plain and obvious that theplaintiff’s claim cannot succeed (Alberta Elders, at para. 20; Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, at para. 25). [17] The standard of proof required with respect to the remaining certification rights have been described by Rothstein J. in Pro-SysConsultants: 99 The starting point in determining the standard of proof to be applied to the remaining certification requirements is the standardarticulated in this Court’s seminal decision in Hollick.

In that case, McLachlin C.J. succinctly set out the standard: “... the classrepresentative must show some basis in fact for each of the certification requirements set out in ... the Act, other than the requirementthat the pleadings disclose a cause of action” (para. 25 (emphasis added)). She noted, however, that “the certification stage is decidedlynot meant to be a test of the merits of the action” (para. 16). Rather, this stage is concerned with form and with whether the action canproperly proceed as a class action (see Hollick, at para. 16; Pro-Sys Consultants Ltd. v.

Infineon Technologies AG, 2009 BCCA 503, 98B.C.L.R. (4th) 272 (“Infineon”), at para. 65; Cloud v. Canada (Attorney General) (2004), (ON CA), 73 O.R. (3d)401 (C.A.), at para. 50). 100 The Hollick standard of proof asks not whether there is some basis in fact for the claim itself, but rather whether there is somebasis in fact which establishes each of the individual certification requirements. McLachlin C.J. did, however, note in Hollick thatevidence has a role to play in the certification process.

She observed that “the Report of the Attorney General’s Advisory Committee onClass Action Reform clearly contemplates that the class representative will have to establish an evidentiary basis for certification” (para.25). … 102 I cannot agree with Microsoft’s submissions on this issue. Had McLachlin C.J. intended that the standard of proof to meet thecertification requirements was a “balance of probabilities”, that is what she would have stated. There is nothing obscure here. TheHollick standard has never been judicially interpreted to require evidence on a balance of probabilities.

Further, Microsoft’s reliance on

U.S. law is novel and departs from the Hollick standard. The “some basis in fact” standard does not require that the court resolveconflicting facts and evidence at the certification stage. Rather, it reflects the fact that at the certification stage “the court is ill-equippedto resolve conflicts in the evidence or to engage in the finely calibrated assessments of evidentiary weight” (Cloud, at para. 50; IrvingPaper Ltd. v. Atofina Chemicals Inc. (2009), (ON SC), 99 O.R. (3d) 358 (S.C.J.), at para. 119, citing Hague v.Liberty Mutual Insurance Co. (2004), 13 C.P.C. (6th) 1 (Ont. S.C.J.)).

The certification stage does not involve an assessment of themerits of the claim and is not intended to be a pronouncement on the viability or strength of the action; “rather, it focuses on the form ofthe action in order to determine whether the action can appropriately go forward as a class proceeding” (Infineon, at para. 65). 103 Nevertheless, it has been well over a decade since Hollick was decided, and it is worth reaffirming the importance of certificationas a meaningful screening device.

The standard for assessing evidence at certification does not give rise to “a determination of the meritsof the proceeding” (CPA, s. 5(7)); nor does it involve such a superficial level of analysis into the sufficiency of the evidence that it wouldamount to nothing more than symbolic scrutiny. 104 In any event, in my respectful opinion, there is limited utility in attempting to define “some basis in fact” in the abstract. Eachcase must be decided on its own facts.

There must be sufficient facts to satisfy the applications judge that the conditions for certificationhave been met to a degree that should allow the matter to proceed on a class basis without foundering at the merits stage by reason of therequirements of s. 4(1) of the CPA not having been met. (See also AIC Limited v. Fischer, 2013 SCC 69, [2013] 3 S.C.R. 949, paras. 39-46.) [18] When determining whether leave should be granted, it is also helpful to look at the standard of appellate review which applies todecisions respecting the certification of class actions. [19] In Toms Grain & Cattle Co. et al. v.

Arcola, 2006 SKCA 20, 279 Sask. R. 281, this Court said: 13

Section 6 of the Saskatchewan Act reflects virtually identical provisions in other Canadian provinces and similar provisions inAmerican jurisdictions. The substance of this provision has therefore been the subject of extensive judicial commentary in otherjurisdictions, including consideration by appellate courts, and the criteria equivalent to those set out in ss. 6 (a), (b), (

c) and (

d) have beenthe subject of adjudication in the Supreme Court of Canada.

It is therefore clear that the application of these criteria engages questions oflaw and that the decision to grant or refuse certification may in some circumstances be challenged on the basis that the chambers judgehas erred in law in determining that one or more of the criteria has or has not been satisfied. 14 Thus, while the terminology used in s. 6 seems to suggest that the certification decision is a discretionary one, a review of thecase law confirms that the extent of appellate deference in relation to a decision to grant or to refuse certification of an action is limited.

Itseems clear, for example, that the decision as to whether the pleadings disclose a cause of action is a question of law, reviewable on astandard of correctness by an appellate court. See, for example, the decisions of the Supreme Court of Canada in Cooper v. Registrar ofMortgage Brokers (B.C.) et al., 2001 SCC 79 , [2001] 3 S.C.R. 537 and Edwards v.

Law Society of Upper Canada, 2001 SCC80 , [2001] 3 S.C.R. 562 where this issue is clearly treated as a question of law, subject to full appellate review on the standardof correctness. 15 Similarly, in Hollick, supra, the Supreme Court reviewed the lower courts’ decisions determining whether the applicants hadsatisfied the criteria of an identifiable class, common issues, and preferability of procedure apparently on the standard of correctness, forno mention is made in that decision of a requirement for deference to the decision of the certification judge, who had certified the actionin that case. 16 In some cases, some degree of deference in relation to the criterion of preferability of procedure has been recognized, for thelegislation requires the certification judge to determine the overall fairness of the class action as a method for determining the commonissues identified.

See: Ward Branch, Class Actions in Canada, looseleaf (Aurora, Ont.: Canada Law Book, 2005) at para. 4.1850, citingauthorities. At the same time, as we have indicated, the Supreme Court of Canada overturned a finding of preferable procedure by thecertification judge in Hollick, with no reference to a requirement for deference to the lower court’s determination. [20] In AIC Limited v.

Fischer, 2013 SCC 69, [2013] 3 S.C.R. 949, the Court stated this about the standard of review to be applied byan appellate court to the decision of a certification judge: 65 I recognize that a decision by a certification judge is entitled to substantial deference: see e.g. Pearson, at para. 43; Markson v.MBNA Canada Bank, 2007 ONCA 334, 85 O.R. (3d) 321, at para. 33. Specifically, “[t]he decision as to preferable procedure is ...entitled to special deference because it involves weighing and balancing a number of factors”: Pearson, at para. 43.

However, I concludethat deference does not protect the decision against review for errors in principle which are directly relevant to the conclusion reachedsuch as, in my view, occurred here: see e.g. Cassano v.

Toronto-Dominion Bank, 2007 ONCA 781, 87 O.R. (3d) 401, at para. 23, leaveto appeal refused, [2008] 1 S.C.R. xiv; Markson, at para. 33; Cloud, at para. 39. [21] As a preliminary matter and as a general comment, several of the grounds dealing with whether a cause of action has been properlypleaded and whether there is a plausible basis for supposing liability are pervaded by the Chambers judge’s significant determinationthat the Province and Canada only provided funding for the Home and School and this could not ground the liability of the Province and

Canada. [22] With this I turn to the arguments of Ms. Ross et al. respecting leave which dovetail with grounds in the proposed notice of appealand which can conveniently be dealt with under the headings which follow. 1. The trial judge erred by considering the failure to join additional parties as part of the preferability consideration. [23] The Chambers judge mentioned the failure by Ms. Ross et al. to join NCEM and BIC both in his analysis of whether the pleadingsdisclose a cause of action and as part of the preferability analysis under s. 6(1)(

d) in para. 42 of his decision. However, he disclaimed ithaving any effect on his decision regarding the cause of action issue. [24] The Chambers judge determined that there was a prima facie case against BIC and NCEM based on the factual underpinnings ofthe claim but that Ms. Ross et al. had not explained in that context why those two parties were not named. The Chambers judge alsodetermined that in the absence of the joinder of BIC and NCEM that Ms. Ross et al. would be at risk from not having a judgment againstthe parties responsible in collecting as much in damages as possible.

He determined that this did not promote judicial economy becausetheir claims would not be dealt with fully and expeditiously once and for all. The Chambers judge did not explain why he dismissed theprospect of the Province and Canada joining BIC and NCEM, and why it is not a significant factor in this part of the analysis. [25] Ms. Ross et al. argued that the Chambers judge was in error and applied the outdated doctrine of necessary or compulsory joinder.There is case law which holds that a plaintiff may choose to sue only one of a number of potential defendants. See: Anderson v.

Canada(Attorney General), 2012 NLTD(G) 148, 328 Nfld. & P.E.I.R. 190. Some jurisprudence also states that the prospect that fault may beallocated amongst various parties does not necessarily mean the case will be inappropriate for class treatment. Cooper v. Hobart (1999), (BC SC), 35 C.P.C. (4th) 124 (B.C.S.C.), at para. 43, reversed on cause of action test (2000 BCCA 151, 184 D.L.R. (4th) 286). [26] In my view, Ms. Ross et al. has made an arguable and sufficiently meritorious point regarding to what extent the failure to joinparties who may additionally be liable to Ms. Ross et al. should play a

part in the preference analysis pursuant to the CAA. If it has a partto play, the possibility of a third party joinder by the defendants may also be a significant issue. Ms. Ross et al.’s arguments on this issueare not destined to fail. 2. The Chambers judge has misapprehended or overlooked material facts. [27] Presumably this ground relates to the determination by the Chambers judge that there was or was not a sufficient basis in fact tosupport a specific element of the certification requirements under the CAA.

In Pro-Sys Consultants, the Court at paras. 102-104 sets outhow a certification judge might approach this issue. The “some basis in fact” standard does not require that the court resolve conflictingfacts and evidence, or assess the merits of the claim or pronounce on the viability or strength of the action.

Each case must be decided onits own merits but there must be sufficient facts to satisfy the judge that the conditions for certification have been met without founderingat the merit stage. [28] The conclusion of the Chambers judge that the participation of the Province in the operation of the Home was limited to partialfunding appears to be at odds with the clear acknowledgement by him in at least two places in his decision that some children wereplaced in the Home by the Province as wards of the Province.

That fact may have a significant bearing on the cause of action analysisand the Chambers judge’s determination that there was no basis for liability by the Province. [29] Although the standard of appellate review with regard to this ground is narrow as Ms. Ross et al. acknowledges (see B. (D.) v. C.(M.), 2001 SKCA 9, [2001] 5 W.W.R. 617, at para. 5), this ground has sufficient merit. It is not destined to fail. 3. The Chambers judge erred by determining that funding cannot give rise to liability. [30] Ms.

Ross et al. next proposes to argue that the Chambers judge erred when he found that mere funding cannot create liability (seeReference re Broome v. Prince Edward Island, 2010 SCC 11, [2010] 1 S.C.R. 360). [31] Ms. Ross et al. argued that the incidents of abuse which are the subject of the class action were both foreseeable and proximatebased on the funding provided by the two defendants and the constellation of other facts alleged in paras. 49-51 of the claim. Ms.

Ross etal. points out that the Chambers judge needed to assess whether the defendants could be liable to the class members on the basis of thefacts, law and pleadings. [32] The Chambers judge appears to have concluded that the pleadings and evidence only disclosed funding as a basis for liability.However, Ms. Ross et al. also pleaded that the Province and Canada controlled the construction and operation of the Home and Schooland that Canada had a role in forcibly placing the children in the Home and, therefore, the School. Likewise, Ms. Ross et al. pleaded thatthe Province engaged in similar behaviour.

In short, the pleadings on their face do not restrict themselves to alleging only funding as thebasis for liability. [33] Ms. Ross et al. argued before the Chambers judge that this case is distinguishable from Broome for three reasons: 1. The placement of children in the home by government actions as alleged in this case was not before the Court in Broome; 2. In Broome, the degree of funding by governments was substantially lower and not the majority of the operating budget as in thiscase; and 3. The law is unsettled because in Blackwater v.

Plint, 2005 SCC 58, [2005] 3 S.C.R. 3, the Court left undisturbed the ruling of thetrial judge that the Federal Government owed a duty of care to residential school students even where involvement was limited toperiodic funding.

[34] There is merit in the argument that the allegations in the statement of claim respecting the funding of construction of the Home andfunding thereafter and the continued involvement of Canada appear to have some basis in fact given the contents of the affidavit of Mr.Frogner which sets out some of the involvement of Canada. [35] Interestingly, the Indian Affairs Branch documents tendered as evidence refer to the enterprise as a “residential school”.Additionally, the affidavit of Ms.

Watier suggests possible coercion involved in her attendance at the Home and School possiblyproviding some basis other than funding to ground liability. [36] Ms. Ross et al. has made a sufficiently meritorious argument that based on the tests enunciated for determining whether there is acause of action, funding and/or funding and other allegations can sustain a cause of action in this case. This ground has sufficient merit. 4.

The Chambers judge erred when he found that the claim for breach of fiduciary duty disclosed no cause of action. [37] The Chambers judge concluded that the allegations in para. 49 against the Province relate only to the operation of the School forwhich no specific factual claim is made and the claim relates only to the treatment of Ms. Ross et al. at the Home. He points out that Ms.Ross et al. attempts to ground liability against the Province in the operation of the Home on the basis of funding. My commentsrespecting the funding issue previously are apt here. However, only para. 49(

c) deals with funding. For example, para. 49(

b) alleges thatthe children were forcibly placed in the Home and School by the Province. That the Province had placed some children in the Home wasacknowledged by even the Chambers judge. [38] The cause of action analysis must assume the allegations in the statement of claim to be true (Pro-Sys Consultants).

If it is acceptedfor the purpose of that analysis that children were forcibly removed and placed in the Home by the Province or parents were encouragedto place the children in the Home and School by the defendants, without deciding the issue, this may impact, along with other factors,whether a fiduciary duty has been properly pleaded and a sufficient cause of action against the Province exists. [39] The same comments apply to Ms. Ross et al.’s claim against Canada. Again, the allegations of a duty of care at para. 50(

a) dealswith funding. The rest of that paragraph pleads other facts which, again without deciding the issue, may be capable of sustaining theclaim in conjunction with funding. The pleading specific to fiduciary duty is set forth in paras. 60-69. Of note is that para. 61 pleads thata source of Canada’s fiduciary duty stems from the Indian Act, R.S.C. 1927, c. 98, and successor legislation. The Chambers judge did notaddress the issue of whether Canada generally has a fiduciary relationship with aboriginal people and whether that might ground a causeof action. [40] The Chambers judge also determined that Ms.

Ross et al. failed to plead that the defendants acted in their own self-interest overthat of Ms. Ross et al. However, the failure to plead an essential element regarding fiduciary duty if it has been overlooked is, in thecontext of class actions, not necessarily fatal given my comments regarding the possibility of amendment of the claim which follow. [41] The arguments of Ms. Ross et al. on this issue have sufficient merit and, in my view, are not destined to fail. 5.

The Chambers judge erred by considering potential limitation defences as part of the preferability analysis. [42] The Chambers judge based this determination on Daniels v. Canada (Attorney General), 2003 SKQB 58, [2003] 6 W.W.R. 72.Ms. Ross et al. argued that this case has been impliedly overturned because the case of Cloud v. Canada (Attorney General), [2001]O.T.C. 767 (S.C.)(trial), upon which Daniels relied was overturned by the Ontario Court of Appeal specifically on the issue of limitations (2004), (ON CA), 247 D.L.R. (4th) 667. [43] Moreover, Ms. Ross et al. points to May v.

Saskatchewan, 2006 SKQB 145, [2006] 9 W.W.R. 89, which came to the oppositeconclusion from Daniels regarding limitation defences and the part they play in the preferability analysis. [44] There is, in my view, conflicting jurisprudence on this question of law in this jurisdiction. The arguments of Ms. Ross et al. havesufficient merit. 6. The Chambers judge drew inappropriate factual conclusions. [45] The statement of claim and the schedules thereto pleaded the facts in some specific detail. Ms.

Ross et al. argued that theChambers judge, faced with sometimes conflicting evidence, did not take the allegations in the statement of claim to be true and indulgedin unnecessary weighing of the evidence. Essentially, she argued that the Chambers judge has not properly applied the “some basis infact” test. This argument has three main branches.

With respect to the Chambers judge’s conclusion that the Province’s participation inthe operation of the Home was limited to partial funding, this is no more than a reiteration of a previous ground. [46] The last two branches, reliance by the Chambers judge on reasons in Fontaine v. Canada (Attorney General), 2013 SKQB 323,429 Sask. R. 100, and on unsupportable findings of fact regarding Canada may raise an issue of whether the Chambers judge in factapplied the “some basis in fact” test correctly in view of the contents of the affidavit evidence provided by Ms.

Ross et al. in support ofthe certification or whether he indulged in weighing the evidence unduly. There is sufficient merit on this ground. 7. The Chambers judge erred by barring further amendment of the statement of claim and further applications to certify. [47] This ground raises, in my view, the issue of the proper application of s. 7(1) of the CAA which permits an adjournment to allow aplaintiff to amend materials, pleadings or permits further evidence to be introduced.

The Chambers judge admitted that on the basis ofhis reasoning some modifications to the claim might make it possible for the action to be certified (para. 45). [48] However, he concluded that there would not be any further attempts at certification because the deficiencies in the claim areinsurmountable and cannot be corrected, and because the matter had been ongoing for 12 years with three amended statements of claim.The first point about deficiencies presumably refers to the lack of joinder of parties and the Chambers judge’s view that Ms.

Ross et al.only pleaded, and the evidence only supported, funding as a basis for liability.

[ 49 ] With respect to the second point, while it is true that the action was commenced in 2001, it only became a class action in 2008 by amended claim. A designated judge was appointed in 2009. The claim was again amended in November 2009 and January 2013. As acknowledged by the Chambers judge, this action had been somewhat in abeyance because it was hoped that, via other court proceedings, the Timber Bay Children’s Home, the subject of this action, would be included in the IRSSA.

It was determined in September 2013 that it would not be included in the IRSSA. [ 50 ] All this is to say that although the Chambers judge might well have exercised his discretion appropriately to allow no further certification proceedings given all the circumstances, the issue remains as to what criteria may guide the Chambers judge in the exercise of his discretion under s. 7(1) of the CAA . Ms. Ross et al. has an argument with sufficient merit that is not destined to fail. 8. The Chambers judge proposed improper revised class

definitions. [ 51 ] Ms. Ross et al. also argued that the Chambers judge erred by proposing revised class

definitions with different temporal limits rather than creating an all-inclusive class with potential subclasses. I do not read the decision of the Chambers judge as suggesting several classes but rather commenting that the class definition needs to be refined and restricted and perhaps subclasses established. This ground of appeal is, in my view, destined to fail. 9. The Chambers judge erred by finding that aggravated and exemplary damages were not properly pleaded. [ 52 ] The allegations regarding this cause of action are found in paras. 74 and 75 of the statement of claim.

This issue is also touched by the Chambers judge’s conclusions surrounding funding. [ 53 ] It appears that some relevant facts may have been pleaded in this regard such as the forcible removal of children from their parents and confining them for 10 months of the year, suppression of language and culture, and belittling by calling them derogatory names. Some of this is set out in the schedules to the statement of claim. The arguments of Ms. Ross et al. on this question have sufficient merit. 10. The Chambers judge’s reasons were deficient. [ 54 ] Ms.

Ross et al. argued that the Chambers judge’s reasons for conclusion are deficient. She argued that the Chambers judge’s terminology and its meaning and application is unclear, and that the decision is in part unintelligible because there was no reference for many of the disputed factual findings and little explanation as to what legal tests were being applied. [ 55 ] The decision as a whole must be reasonably intelligible to the parties and provide the basis for meaningful appellate review ( R. v. Sheppard , 2002 SCC 26 , [2002] 1 S.C.R. 869). On the basis of the jurisprudence, Ms.

Ross et al. will have an uphill battle on this issue. The Chambers judge gave detailed, extensive reasons. There is insufficient merit to this ground and it is destined to fail. Conclusion [ 56 ] In my view, subject to a few grounds as stated, Ms. Ross et al. has met the first branch of the Rothmans test. Leave is granted on this basis. VII. Sufficient Importance [ 57 ] The grounds of appeal I have noted which are not destined to fail also pass the second branch of the Rothmans test. The appeal will have a substantial effect on Ms.

Ross et al. who, having been denied an adherence to the IRSSA, may have no other recourse but to sue individually. [ 58 ] The appeal grounds as a whole also raise unsettled and important points of law, for example, the issue of joinder and limitation defences in the preferability analysis, and the issue of how the discretion under s. 7(1) may be exercised. All of these factors lead me to conclude that the second part of the Rothmans test is met and that the appeal is of sufficient importance to grant leave. [ 59 ] Leave to appeal is granted based on the draft notice of appeal filed by Ms.

Ross et al. except for the grounds related to deficiency of reasons and improper revised class

definitions. [ 60 ] Costs will be left to the panel which hears the appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 18 th day of September, 2014. “Ottenbreit J.A.” Ottenbreit J.A.