Safioles v Saskatchewan, 2015 SKCA 122

Court of Appeal for Saskatchewan Docket: CACV2732 Citation: Safioles v Saskatchewan , 2015 SKCA 122 Date: 2015-11-17 Between: Ronald Safioles and Marion Kequahtooway by her litigation guardian Tina Dickson Prospective Appellants (Plaintiffs) And The Government of Saskatchewan Prospective Respondent (Defendant) Before: Jackson J.A. (in Chambers) Disposition: Application granted Application from: 2015 SKQB 183 , Regina Chambers Date: 1 September 2015 Counsel: E.F. Anthony Merchant, Q.C. for the Applicants Michael J.

Morris and Laura Mazenc for the Respondent Jackson J.A. [ 1 ] This is an application for leave to appeal a decision of Keene J. refusing the certification of a class action against the Government of Saskatchewan ( Safioles v Saskatchewan , 2015 SKQB 183 [ Refusal Decision ]). Briefly speaking, the claim is brought upon behalf of all individuals who resided at the Saskatchewan Training School or Valley View Centre and who suffered abuse and injury, loss or damage while residing at either residence.

Further background is provided in an earlier decision by Keene J. where he reached certain conclusions pending the receipt of further evidence, amendments and argument ( Safioles v Saskatchewan , 2014 SKQB 260 , 453 Sask R 295 [ Interim Decision ]). Leave to appeal is sought in relation to the Refusal Decision . [ 2 ] The application for leave to appeal is brought pursuant to s. 39(3) of The Class Actions Act , SS 2001, c C-12.01.

The measure of whether leave should be granted is fixed by Rothmans, Benson & Hedges Inc. v Saskatchewan , 2002 SKCA 119 at para 6 , 227 Sask R 121, which is invariably applied to applications for leave to appeal under s. 39(3) without variation: Jameson Livestock Ltd. v Toms Grain and Cattle Company Ltd ., 2005 SKCA 11 [ Jameson Livestock ] at para 3 ; Hoffman v Monsanto Canada Inc. , 2005 SKCA 105 at para 2 , [2006] 5 WWR 400 [ Hoffman ]; Sorotski v C.N.H.

Global N.V. , 2006 SKCA 77 at para 8 , 285 Sask R 125 [ Sorotski ]; May v Saskatchewan , 2006 SKCA 65 at para 6 , [2006] 12 WWR 122; Wuttunee v Merck Frosst Canada Ltd. , 2008 SKCA 79 [ Wuttunee ]; Frey v Bell Mobility Inc. , 2010 SKCA 38 [ Frey ]; DJO Canada, Inc. v Schroeder , 2010 SKCA 100 at para 14 [ DJO Canada ]; R v Brooks , 2010 SKCA 55 [ Brooks ] at paras 20 and 21 ; Ross v Saskatchewan , 2014 SKCA 96 at para 6 , 446 Sask R 6 [ Ross ]; Saskatchewan Medical Association v Anstead , 2015 SKCA 19 at para 6 ; and Pederson v Saskatchewan (Minister of Social Services) , 2015 SKCA 87 [ Pederson ]. [ 3 ] The draft Notice of Appeal filed with the application for leave to appeal states the following are the grounds of appeal: 4.

THAT the appeal is taken upon the following grounds: 1. The learned chambers judge [erred] in his judgment of punitive damages, identifiable class, common issues, and preferable procedure, inter alia : (

a) Creating a merits-based class definition that would not allow objective determination of class membership without first adjudicating each class members’ claim; (

b) Providing no analysis for common issues, including not referring to the legislative requirements or analysis in similar case law; (

c) Finding that issues of systemic breach of negligence and fiduciary duty were “not useful”, despite all previous institutional abuse cases holding they were suitable, and not following the Supreme Court’s holding in Rumley [2001 SCC 69] on common issues; (

d) Making a merits based finding of fact that there was no evidence of fraudulent concealment; (

e) Failing to consider that The Class Actions Act (“ The CAA ”) and case law allow for even significant individual issues, such as damages, causation, and defences, to remain after a trial of the common issues; (

f) Misconstruing and misapplying the 2003 B.C. superior court judgment in Rumley , which he referred to as the “ Rumley de-certification case,” and T.L. v. Alberta [2006 ABCA 104], which was not an institutional abuse case; (

g) Not considering judicial economy or access to justice and not engaging in the access to justice analysis set out by the Supreme Court in A.I.C. v. Fischer [2013 SCC 69]; (

h) Creating a new onerous burden on plaintiffs to provide extra-judicial investigations of the institution and a “groundswell of reported abuse” not required by case law or legislation.

(

i) Making a merits based finding of fact holding that the evidence did not reveal some basis in fact for the existence of a “notable number of abuse victims” and implicitly holding that this was a requirement for certification. [ 4 ] In oral argument, counsel for the proposed appellants added this ground: (

j) The learned Chambers judge erred by failing to certify a claim for punitive damages as a common issue. [ 5 ] On this application, counsel for the proposed appellants raise a preliminary issue as to the proper approach to take under s. 39(3) of The Class Actions Act , specifically whether it is necessary to consider each ground of appeal in detail to determine individual merit as part of the judgment-writing process when leave to appeal is granted. [ 6 ] From the early history of The Class Actions Act , it is quite clear the Court favoured an approach that addressed the request for leave in a global way; that is to say, whether leave should be granted in relation to the decision as opposed to the individual grounds of appeal.

For example, in Jameson Livestock , the first decision considering the new legislation, the Court of Appeal Chambers judge provided a brief overview of the relevant facts, issues and parties’ arguments, and then proceeded directly to the question of whether leave should be granted. In granting leave, the Chambers judge briefly stated, “I am satisfied the proposed appeal is of sufficient merit and importance to warrant the granting of leave to appeal.

In my judgment, the making of the order against Prairie Livestock gives rise to arguable issues of substance which are of considerable importance to the parties and of some potential importance to the application generally …” (para. 22). [ 7 ] In Hoffman , the second decision following the enactment of The Class Actions Act , the Chambers judge noted the considerable hurdle the appellant would have to surmount, but that the application was still not prima facie destined to fail ( Hoffman , paras. 3–7 ).

Issues of delay and cost were dealt with quickly, alluding to the fact that no significant delay or cost issues would override the merit of the appeal (para. 8).

In regards to the importance branch of the Rothmans test, the Chambers judge stated that the legislation continued to be untested so it was also said to raise new and controversial aspects of law (para. 16). [ 8 ] In Sorotski , the Chambers judge granted leave to appeal without assessing the merits of each individual ground of appeal, making it clear that leave to appeal is usually granted in relation to the judgment or order and not from the reasons. [ 9 ] In Wuttunee , the Chambers judge referred to Jameson Livestock , Hoffman and Sorotski and concluded it was not necessary to pass on all the grounds of appeal: [9] Dealing in particular with the question of merit, I am not required to pass on all of the grounds of appeal.

This is not an appeal on a question of law alone or an appeal where a question of law must be stated for the Court to which the parties will be limited. Nor do I think it advisable to canvass the grounds of appeal extensively . While full reasons should be given when leave is refused, depending on the impact of such reasons on the ongoing proceedings, where leave has been granted, it is preferable to say no more than necessary.

It is sufficient to say that I am persuaded that the appeal is of sufficient merit to warrant being heard by the Court. (Emphasis added) [ 10 ] In Frey , the Chambers judge followed Wuttunee , saying the following: [15] … as the right to appeal in the Act is not limited to a question of law alone it is not necessary for the chambers judge, on this application, to pass on all the proposed grounds of appeal or to state a question to be decided on appeal.

Further, particularly where leave to appeal is granted, it is preferable in these reasons to say no more than is necessary as to the merits of the proposed appeal. [ 11 ] Counsel for the proposed appellants argue that it is not necessary to review each ground of appeal—in written reasons—if leave were to be granted. He submits that such an approach would add delay to the process and overly restrict the Court hearing the matter.

In my view, he has correctly stated the overall approach the Court has taken to leave applications under The Class Actions Act . [ 12 ] There can be no template for the writing of reasons; but when leave is granted, it is not necessary for the Chambers judge to pass on each ground of appeal. The proposed appellants apply for leave to appeal from the decision under appeal (see Sorotski at para 17 ).

The grounds of appeal contained in the draft notice of appeal serve to focus the attention of the parties, whose arguments must address the merits of the various grounds of appeal, but it is not necessary in every case for the Chambers judge to subject each ground of appeal to extensive scrutiny in the written reasons. Indeed, to subject each ground of appeal to extensive analysis in the decision granting leave runs the risk of increasing the cost and the attendant delay and may give the appearance of tying the hands of the panel hearing the appeal.

Exceptions to this approach exist, notably in Ross and Pederson ; but, as a general rule, the Court’s approach has been relatively consistent since Frey regarding the level of analysis of the merits of the proposed appeal (see, e.g., DJO Canada ).

Only when the Chambers judge denies leave is it common to provide more expansive reasons explaining why the applicant for appeal has not met the Rothmans test for leave (see, e.g., Brooks ). [ 13 ] Nor, again as a general rule, is the appellant required to return to the Chambers judge to argue that leave to appeal should be further granted if additional grounds of appeal are added or the initial grounds of appeal are restated.

Once leave is granted, the appellant proceeds with the filing of the draft notice of appeal and the service and filing of the factum. [ 14 ] In the within appeal, the draft notice of appeal is not prima facie destined to fail. The application for certification as a class action may, in fact, fail if heard on appeal, but there are significant issues raised with respect to the application of s. 6(1) of The Class Actions Act that suggest the claim is not doomed to failure on its face. There would be no significant delay in allowing leave to appeal on the issue of class action certification.

It also does not appear leave to appeal would unduly or disproportionately add to the cost of the proceedings. If the Court were to allow the appeal, in whole or in part, it may actually have the effect of streamlining the process. Therefore, under the first branch of the Rothmans test, the proposed appeal has sufficient merit for leave to appeal to be granted. [ 15 ] The second branch of the Rothmans test looks at whether the appeal is of sufficient importance to warrant consideration by the Court of Appeal.

Factors to consider under this branch include whether it bears heavily or prejudicially on the outcome of the

proceedings, whether it raises a new or controversial or unusual issue of practice, whether it raises new or uncertain or unsettled points oflaw, or whether it transcends the particular in its implications (see Rothmans, para. 6). This branch is more difficult for the proposedappellants to address.

There is nothing substantially new or unsettled in the law regarding this particular type of class action certification.On the other hand, the plaintiffs allege serious misconduct and abuse on the part of a government institution, which persuades me, inlight of the overall merit of the appeal, that leave should be granted. [16] While it may be that a class action may not be the best avenue to proceed with these issues, that does not take away from theapparent merit and importance of the case.

Another reason militating in favour of granting leave is the parallel between this decision andthose for which leave has already been granted in similar appeals: see Ross and Pedersen. [17] The only particular issue arising on this application pertains to the ground of appeal relating to fraudulent concealment, forwhich leave to appeal was not granted in Pederson. In this appeal, however, Keene J. considered common issues while assessingpreferable procedure.

He concluded that the common issues were not suitable because of their breadth (Refusal Decision, para. 27). [18] Other than mentioning the breadth of the common issues, the separate claims—including a claim for fraudulent procedure—are not analyzed extensively. On the other hand, fraudulent concealment may be particularly important to this claim because Keene J.makes note of varying limitation period issues as complicating a class-based approach (para. 28).

Fraudulent concealment, however, ifaccepted as a common issue, may be found to avoid the strictures imposed by limitation periods: “The common law doctrine offraudulent concealment is not a rule of construction.

It is an equitable principle aimed at preventing a limitation period from operating‘as an instrument of injustice’” (Giroux Estate v Trillium Health Centre, (2004) (ON CA), 249 DLR (4th) 662 atpara 28 (Ont CA)). [19] Fraudulent concealment has been raised as a common issue in other class action proceedings: see L.(T.) v Alberta (Director ofChild Welfare), 2006 ABQB 104 at para 115, 395 AR 327 and L.(T.) v Alberta (Child, Youth and Family Enhancement Act, Director),2008 ABQB 114 at para 112, 436 AR 217.

An appeal to the Alberta Court of Appeal on the question of certification was dismissed (L.(T). v Alberta (Child, Youth and Family Enhancement Act, Director), 2009 ABCA 182, 457 AR 141). See also W.P. v Alberta (No 2),2013 ABQB 296, 563 AR 47 and its appeal history. [20] While fraudulent concealment as a common issue may be rare and the Alberta decisions are not binding in this jurisdiction,the reasoning from them may be found persuasive.

It also may be found that the Queen’s Bench Chambers judge erred by failing to giveproper consideration to the plaintiffs’ common issues as he considered them in the main under the preferable procedure branch of hisdecision-making process. If this can be classified as an error, it is one that has sufficient merit to be argued by the parties on appeal. [21] In

summary, I grant leave to appeal the decision before me. “Jackson J.A.” Jackson J.A.