On November 16, 2000, the Supreme Court of Canada dismissed an application for leave to appeal made by Vancouver College Limited and St. Thomas More Collegiate Ltd. and Representative Counsel for Charitable Objects, from a judgment of the Court of Appeal for Ontario released on April 10, 2000. The Court of Appeal decision confirmed that there is no doctrine of charitable immunity in Canadian law, and further confirmed that all assets of the Christian Brothers of Ireland in Canada (CBIC), even if held in trust for a specific purpose, are available to pay the tort claimants.
The case goes back to 1996 when CBIC—the Canadian branch of the Congregation of Christian Brothers, a worldwide teaching order of the Catholic Church—applied to be wound-up in order to make its assets available to compensate former residents of the Mount Cashel Orphanage in Newfoundland who had suffered physical, sexual and emotional abuse while at the Orphanage. The winding-up spawned litigation in Ontario and British Columbia over whether a charitable organization can shield any of its assets because of its charitable activities, and over whether two prominent Catholic private schools in British Columbia can be sold to pay the tort liabilities of the Christian Brothers.
As a result of the winding-up proceedings conducted in Ontario, CBIC’s Liquidator is permitted to use all of CBIC’s assets to pay its liabilities. In parallel proceedings in British Columbia, four Christian Brothers who are the registered shareholders of the two schools sought declarations in the Supreme Court of British Columbia on the ownership of the shares of these schools and the terms of any trusts upon which the shares were held. In reasons released in August, 2000, Madam Justice Levine held that CBIC owned the shares of both schools on trust for the purpose of operating the schools. The combined effect of this judgment and the decision of the Court of Appeal for Ontario is that the schools will be sold and the proceeds used to satisfy the abuse claims. The Christian Brothers, Vancouver College and St. Thomas More have appealed the BC decision to the British Columbia Court of Appeal.
In the Ontario proceedings, David R. Wingfield and M. Kate Stephenson of Toronto’s Weir & Foulds acted for Arthur Andersen, Inc., the Liquidator of CBIC; Douglas G. Garbig of Toronto’s Roebuck, Garbig acted as Representative Counsel for the Abuse Victims; Donald H. Burrage of the Attorney General’s Department of Newfoundland acted for the Government of Newfoundland; Neil Finkelstein and Sandra Forbes of Toronto’s Davies Ward Phillips & Vineberg LLP acted as Representative Counsel for Charitable Objects; David E. Baird, Q.C. and John A. Terry of the Toronto office of Torys acted for Vancouver College Limited; and Timothy H. Gilbert of Toronto’s Lenczner Slaght Royce Smith Griffin acted for St. Thomas More Collegiate Ltd.
In the British Columbia proceedings, William S. Berardino, Q.C. of Vancouver’s Berardino & Harris acted for the four Christian Brothers with assistance from Stanley Martin and Raj Deol of the Vancouver office of Fasken Martineau DuMoulin LLP. Vancouver College Limited was represented by George K. Macintosh, Q.C. and Lisa A. Warren of Vancouver’s Farris, Vaughan, Wills & Murphy; Richard R. Sugden, Q.C. and Robin N. McFee of Vancouver’s Sugden, McFee & Roos acted for St. Thomas More Collegiate Ltd.; counsel for the Vancouver College Parents Association and Alumni Association was Dale G. Sandersen, Q.C., John J.L. Hunter, Q.C. and Stephanie McHugh of Vancouver’s Davis & Company; the Roman Catholic Archdiocese of Vancouver was represented by Mary M. MacKinnon and J.D. Cotter of Vancouver’s Guild, Yule & Company; Arthur Andersen, Inc., the Liquidator of CBIC, was represented by Bryan G. Baynham, Q.C. and John P. Sullivan of Vancouver’s Harper Grey Easton and by David R. Wingfield of Toronto’s Weir & Foulds; Counsel for the Government of Newfoundland and Labrador was Glenn A. Urquhart, Q.C. and Susan Grattan-Doyle of Vancouver’s Singleton Urquhart; and counsel for the Abuse Victims was Douglas G. Garbig of Toronto’s Roebuck, Garbig.