Executive Summary: Key Legal and Evidentiary Issues

• Striking of allegations under article 169 of the Code of Civil Procedure requires caution at the preliminary stage, with the benefit of the doubt given to contested allegations.
• Historical allegations about the Indian residential school system and the Indian Residential Schools Settlement Agreement were held relevant as necessary context for the claims concerning the Louvicourt Residence.
• Allegations concerning specific institutions outside Quebec (schools along the Mackenzie River, the Teulon residences in Manitoba, and the Timber Bay Children's Home in Saskatchewan) were found to exceed the scope of the authorized class action and were struck.
• Evidence about the living conditions of the Kitcisakik community was ruled pertinent, as the treatment of residents cannot be assessed in the abstract.
• Revision of an authorization judgment under article 588 C.p.c. requires new facts showing the authorization conditions are no longer met, and cannot serve as a disguised appeal.
• Canada's proposed additional common questions were characterized as defences that do not depend on the discontinuance against the insurer RSA, and the revision request was refused.

Facts of the case

Chief Régis Pénosway and Véronique Papatie brought a class action in damages against the Attorney General of Canada for events that occurred from 1975 to 1991 at the Résidence Pavillon Notre-Dame de la Route in Louvicourt, in Abitibi. The action was authorized by consent on December 2, 2022, on behalf of a principal group composed of all persons who stayed at the residence between September 1975 and November 1991 while under 18 years of age, and a family group of their close relatives. The originating application, served on March 28, 2023 and later amended in January and February 2025, alleges that Canada breached its obligation to act as a parent concerned with the well-being of its child and its duty of loyalty toward the plaintiffs and class members. The action was originally also brought against Royal & Sun Alliance Canada (RSA), the residence's insurer, but the plaintiffs obtained leave to discontinue against RSA by judgment of January 20, 2025, on the basis that knowledge of the alleged acts by Father Edmond Brouillard — their author and president of the residence's board of directors — rendered the insurance policy null ab initio. Canada's appeal of that judgment was dismissed by the Court of Appeal on February 18, 2026. In the present judgment, rendered on June 29, 2026 by Justice Sylvain Lussier of the Superior Court, the Attorney General of Canada sought, on one hand, the striking of several paragraphs of the amended application (paragraphs 15 to 20, 21 to 30, 34, 35, 41 to 45, 46 to 52, 165 to 169 and 207 to 208) and the rejection of supporting exhibits, and on the other hand, the revision of the authorization judgment to add two additional common questions, which it argued were made necessary by the discontinuance against RSA.

Procedural provisions at issue

Two provisions of the Code of Civil Procedure framed the debate. Article 169 C.p.c. allows a party to ask the court to strike irrelevant allegations from the proceedings. Article 588 C.p.c. provides that the court may, at any time on a party's application, revise or annul the authorization judgment if it considers that the conditions relating to the questions of law or fact or to the composition of the group are no longer met. The two common questions Canada proposed to add asked whether Canada, through its employees or agents, forced the housing of principal group members at the residence, and whether it established, implemented, administered and/or managed the residence.

The court's reasoning and analysis

On the striking request, the court recalled the Court of Appeal's repeated warnings, notably in Charles c. Boiron Canada inc. and Bracken c. Agence du revenu du Québec, that striking allegations at the interlocutory stage is reserved for the clearest cases, with alleged facts taken as proven and any doubt resolved in favour of leaving the matter to the trial judge. Applying this prudence, Justice Lussier held that the paragraphs dealing with the history of the Indian residential school system (paragraphs 15 to 20 and 207 to 208) and with the Indian Residential Schools Settlement Agreement and the Independent Assessment Process (paragraphs 21 to 30) would not be struck: the Louvicourt Residence cannot be isolated from the historical context that preceded it, the allegations refer largely to public inquiry reports and court-approved settlements of which the court may take judicial notice, and they are in fact necessary to a proper understanding of the file. The paragraphs concerning other specific institutions — the schools in the Northwest Territories along the Mackenzie River (paragraphs 34 and 35) and the Teulon residences in Manitoba and the Timber Bay Children's Home in Saskatchewan (paragraphs 41 to 45) — were treated differently. These, the court held, leave the general context and amount to explanatory pleading about unrelated cases outside Quebec, falling outside the scope of the litigation as circumscribed by the authorization judgment. Conversely, the allegations about the Kitcisakik community (paragraphs 46 to 52 and 165 to 169), describing an isolated community without federal funding, running water or electricity, and whose ancestral territory was clear-cut, were held relevant: the treatment of the residence's boarders cannot be examined in the abstract, and these factors both exacerbate the mistreatment the children may have suffered and explain the context in which the residence was created. On the revision request, the court held that a revision under article 588 C.p.c. must flow from a change in circumstances and cannot be a disguised appeal of the authorization judgment. The liability alleged against Canada — extracontractual liability and the government's fiduciary duty — is entirely different from that pleaded against RSA, which rested on a liability insurance contract, so the discontinuance against the insurer did not require reformulating the common questions. The proposed questions were in reality defences, which Canada may raise in its defence, not yet filed; moreover, existing sub-question c) i. already addresses Canada's obligations in the establishment, implementation, administration and management of programs or decisions leading to the housing of members at the residence, and questions o) to u) already address Canada's liability for the acts of others.

Ruling and overall outcome

The court granted the motion to strike only in part, ordering the striking of paragraphs 34, 35 and 41 to 45 of the amended application and the withdrawal of the exhibits referenced in those paragraphs, while dismissing the motion to revise the authorization judgment. The outcome largely favoured the plaintiffs, Chief Régis Pénosway and Véronique Papatie, who preserved the great majority of the contested allegations — including the historical context and the Kitcisakik community evidence — and defeated Canada's attempt to add new common questions. No monetary amount was ordered, granted or awarded in this judgment, which was rendered without legal costs.