Certification Rejected in Cloud Case

Mr. Justice Roland Haines of the Ontario Superior Court of Justice rejected certification of Marlene Cloud et al. v. Attorney General of Canada et al. The case involved former students and the families of former students of the Mohawk Institute Residential School located in Brantford, Ontario, near the Six Nations of Grand River Reserve. The amount of the claim was $2.3 billion. The claims the plaintiffs sought to certify included non-sexual assault, breaches of aboriginal and treaty rights and fiduciary duty. The defendants were the Attorney General of Canada, The Incorporated Synod of the Diocese of Huron and the New England Company.

Significantly, Mr. Justice Haines struck out claims arising from acts or omissions that preceded May 14, 1953 under the Crown Liability and Proceedings Act. As well, an argument based on the Trustee Act—that because lawsuits are precluded against the estates of deceased persons after two years have passed, then correspondingly there should be no vicarious liability for the institutional defendants—was labelled “compelling.” Mr. Justice Haines also struck out the claims of the family members on the basis that such entitlements are not retrospective under the statute and that one cannot be married or born into a Family Act claim.

As to the existence of a common issue or identifiable class, the court found that the idiosyncratic experiences of the students of the school, including different religious backgrounds, language training at home and at school, changing standards of discipline and the divergent ways by which children ended up at the school, did not lend themselves to fair adjudication through the vehicle of a class proceeding.

Borden Ladner Gervais LLP acted for the New England Company, with a team that included Robert Bell and Darilynn Allison. James Leising and Tom Andreopoulos handled the case for the Attorney General of Canada and Brian Daly and Lisa N. Gunn and Troy H. Lehman (litigation) of McCarthy Tétrault LLP appeared for The Incorporated Synod of the Diocese of Huron. Russell M. Raikes, Paul Vogel and John Peters of Cohen Highley LLP acted for the plaintiffs.