Executive Summary: Key Legal and Evidentiary Issues

• Certification of a class action was sought for alleged abuse and negligence at Notre Dame school in Bonnyville, Alberta, between September 1, 1966, and June 28, 1974.

• The Plaintiff alleged joint and several liability among the Attorney General of Canada, His Majesty the King in Right of Alberta, Le Diocèse de Saint-Paul and/or The Diocese of Saint-Paul, St. Louis Parish, and the Board of Trustees of Lakeland Roman Catholic Separate School Division for physical, psychological, and sexual abuse suffered by Indigenous students.

• The Attorney General of Canada, the Diocesan Defendants, and the School District did not oppose certification on agreed, narrowed terms, but Alberta objected, arguing the pleadings did not disclose a cause of action against it.

• The Court analyzed the statutory framework and found that Alberta did not owe a direct duty of care or fiduciary duty to the Survivor Class, nor was it vicariously liable for the acts of school staff.

• Certification was granted against the Attorney General of Canada, the Diocesan Defendants, and the School District, but denied against Alberta.

• No costs were awarded for the certification application except that Alberta was granted costs for its successful objection.

Background and facts of the case

Cynthia Iris Youngchief brought this action as Representative Plaintiff under the Class Proceedings Act, S.A. 2003 c C-16.5, representing the Survivor Class defined as all aboriginal persons, wherever they may now reside or be domiciled, who attended a school in Bonnyville, Alberta, with the name Notre Dame during the Class Period of September 1, 1966, to June 28, 1974. The action concerns the alleged conduct of the Defendants in their operation of Notre Dame school. It is alleged that the Defendants jointly and severally established, funded, oversaw, operated, supervised, controlled, maintained, and supported Notre Dame school through common national and provincial policies and procedures.

The Amended Amended Statement of Claim alleges that Survivor Class members were subjected to frequent physical, psychological, and sexual abuse, and that the Defendants were jointly and severally negligent and breached their fiduciary duty owed to the Survivor Class members. It is alleged that the Defendants’ negligence and breach of fiduciary duty resulted in enormous harm to the class.

The Claim pleads, by way of background, amendments to the Indian Act in 1884 that made it mandatory for aboriginal children to attend a day school, industrial school, or residential school. The Government of Canada ceased operation of its Indian day school on Kehewin Cree Nation in 1964. There were no replacement schools, teachers, or other educational facilities in Kehewin at that time. It is alleged that the Defendants jointly decided to begin transporting children from Kehewin Cree Nation to and from the nearby Town of Bonnyville to attend school. These day students attended Notre Dame school and now form the Survivor Class as defined.

There have been several changes to the structure of the school districts in place during the Class Period when the Notre Dame school was in operation. The Claim pleads that in 1943, the Lac La Biche School Division was formed; in 1971, the Beaver River School District #5460 assumed jurisdiction; and on September 25, 1980, the Lakeland Roman Catholic School District #150 was established.

The Claim alleges that the Attorney General of Canada was responsible for the maintenance, funding, operation, oversight, and/or management of Canadian schools for aboriginal children including Notre Dame school, and that Canada’s maintenance, funding, operation, oversight, and/or management of schools, through its agents, breached its duty of care and fiduciary duty owed to Survivor Class members. Canada is also alleged to be vicariously liable for the acts and omissions of its agents in respect of the maintenance, funding, operation, oversight, and/or management of Notre Dame school.

The Claim alleges that His Majesty the King in Right of Alberta had jurisdiction, authority, and control over Alberta Education, and that the authority and duties described in the Claim as against Canada were delegated from Canada to Alberta under the School Act, R.S.A. 1952, c.329, School Act, R.S.A. 1970, c.329, Department of Education Act, R.S.A. 1955, c.-95 and the Department of Education Act, R.S.A. 1970, c-96. The Claim alleges that Alberta owed a duty of care to Class members through its governance and support of Notre Dame school, that the Class members were in the care and control of Alberta’s agents at the school, that Alberta had breached its duty to the Class members by failing to take reasonable steps to prevent or stop physical, emotional, sexual, and psychological harm, that it was vicariously liable for the wrongful acts of school staff, and that it breached a fiduciary duty owing to the Survivor Class members.

The Claim alleges that Le Diocèse de Saint-Paul and/or The Diocese of Saint-Paul, including St. Louis Parish, owed a duty of care to Class members through its support of Notre Dame school, exercised care and control over the Class members, breached their duty in failing to ensure the Class members were in a safe environment, and were vicariously liable for the wrongful acts of the school staff and had breached their fiduciary duty to the Class members.

The Claim alleges that the Board of Trustees of Lakeland Roman Catholic Separate School Division and its predecessors owed a duty of care to the Class members through its establishment, oversight, operation, supervision, care and control, maintenance, and support of Notre Dame school. It alleges that the School District breached its duty in failing to ensure policies were in place that guaranteed the Class members were in an abuse-free environment and that the School District breached its duty of care by failing to take reasonable steps to prevent or stop physical, emotional, sexual, and psychological harm. The Claim also alleges that the School District is vicariously liable for the wrongful acts of school staff and that it had breached its fiduciary duty to Class members.

Certification application and legal framework

The Plaintiff applied for certification of this class action pursuant to s 5(1) of the Class Proceedings Act, which sets out five preconditions to certification: (a) the pleadings disclose a cause of action; (b) there is an identifiable class of two or more persons; (c) the claims of the prospective class members raise a common issue; (d) a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues; and (e) there is a person eligible to be appointed as a representative plaintiff who will fairly and adequately represent the interests of the class, has produced a plan for the proceeding, and does not have a conflict of interest.

During the case management process and discussion among counsel for the parties, the Defendants, Canada, the School District, and the Diocesan Defendants arrived at agreements to certification. Canada agreed to the terms of certification and not to oppose certification on specified terms, including the definition of the Survivor Class and Class Period, the appointment of Cynthia Iris Youngchief as Representative Plaintiff, the appointment of Grey Wowk Spencer LLP as Class Counsel, the limitation of common questions to whether and to what extent each defendant was involved in the operation and management of the schools, whether each owed a duty to the Plaintiff, and whether there was a breach of that duty, and that there would be no costs payable by Canada in respect of the certification application.

The Diocesan Defendants neither consented to nor opposed certification on the revised and narrowed terms, and the Plaintiff would not seek or obtain costs against the Diocesan Defendants in respect of the certification application. The agreement by the Diocesan Defendants not to oppose certification was not an admission of liability or any fact pleaded in the Claim.

The School District did not oppose the certification under the proposed terms, including the definition of the Survivor Class and Class Period, the appointment of Cynthia Iris Youngchief as Representative Plaintiff, the appointment of Grey Wowk Spencer LLP as Class Counsel, the limitation of common issues, and that there would be no costs payable to the Board of Trustees in respect of the certification application.

Certification of the Claim as against Alberta

Alberta objected to certification of the Claim as against it on the basis that the pleadings do not disclose a cause of action (s 5(1)(a)), the claims of the prospective Class members do not raise a common issue involving Alberta (s 5(1)(c)), and a class proceeding would not be the preferable procedure for the fair and efficient resolution of the common issues as they may affect Alberta (s 5(1)(d)).

The Court reviewed the relevant legislation and found that the School Act 1955 and the School Act 1970 did not give Alberta or the responsible Minister the power to control or monitor the management or operation of schools, or deem the school boards or school staff to be agents of Alberta or the responsible Minister, nor did they give Alberta or the responsible Minister the power to control the activities of the school board. These duties lay legally with the independent school board.

The Court relied on appellate authority, including A.H. v Alberta (Minister of Education), 2020 ABCA 54, and Wiggins v British Columbia, 2009 BCSC 121, to conclude that Alberta did not owe a direct duty of care or fiduciary duty to students and was not vicariously liable for the acts of school staff. The Court also found that the Plaintiff’s alleged breaches of duty may apply to the School District and its predecessors, but not to Alberta, and that there was no “close and direct relationship” between the Survivor Class members and Alberta during the Class Period.

Outcome and orders

The Court certified this class action as against the Defendants, the Attorney General of Canada, the Diocesan Defendants, and the School District, as follows:

1. The Survivor Class means all aboriginal persons, wherever they may now reside or be domiciled, who attended a school in Bonnyville, Alberta, with the name Notre Dame during the Class Period.

2. The Class Period is defined as the period between September 1, 1966, to June 28, 1974.

3. The Representative Plaintiff shall be Cynthia Iris Youngchief.

4. Grey Wowk Spencer LLP shall be appointed as Class Counsel for the Survivor Class.

5. The common issues shall be limited to and certified as follows: (i) whether and to what extent each of the Defendants were involved in the operation and management of the school; (ii) whether each of the Defendants owed a duty to the Plaintiff; and (iii) whether there was a breach of that duty.

6. There will be no costs payable by these Defendants in respect of the certification application.

The application for certification was dismissed as against the Defendant, His Majesty the King in Right of Alberta, with costs for an application with brief under Column 1 of Schedule C of the Rules of Court.

The Court directed that counsel for the Plaintiff prepare an updated Proposed Litigation Plan for consideration by counsel for the parties against which this class action has been certified. A Case Management Conference will be scheduled in order for the Court to confirm a Proposed Litigation Plan.

No specific monetary amount was determined or awarded at this stage.