The Federal Court granted a motion by various religious orders striking out a Third Party Claim filed against them by the defendant Canada.

The plaintiffs brought this action against Canada for harm allegedly suffered as a result of Canada’s Indian Residential Schools Policy. The two residential schools identified in the action are the Kamloops Indian Residential School and the Sechelt Indian Residential School. A certification hearing is set for October 2014.

Canada filed a third party claim against the religious orders seeking contribution and indemnity, on the basis that the religious orders were responsible for supervision, control and maintenance at those schools.

Paragraph 80 of the Amended Statement of Claim filed by the plaintiffs makes it clear that they seek redress only from Canada. They expressly waive any and all claims that may be attributable to the fault or liability of a third party. The religious orders argued in this motion that the plaintiffs seek redress against Canada severally, and are unable to flow that liability to third parties.

Harrington J. agreed that Canada has no cause of action against the third parties, and there is no reason to keep them in the litigation. He referred to the BC Court of Appeal decision in BC Ferry Corp. v. T&N plc (1995), the Ontario Court of Appeal decision in Taylor v. Canada (2009), and the recent Supreme Court of Canada decision in Sable Offshore Energy (2013) concerning “Pierringer” agreements.

The plaintiffs in this action made a decision not to sue the religious orders, and to focus their claim on Canada.  It is “plain and obvious” that Canada does not have a cause of action against the third parties. The Court may make a declaration as to the liability of non-parties, so it is not necessary for the religious orders to be parties. It was agreed that Canada would have access to the third parties’ documents and will be entitled to examine them for discovery. There is no prejudice to Canada. Harrington J. also rejected a “public policy” argument of Canada that the religious orders should not be “left off the hook”. He concluded by stating: “many of the plaintiffs are elderly. We should get on with it”.

The third party claim filed by Canada was struck without leave to amend.
http://canlii.ca/en/ca/fct/doc/2013/2013fc1213/2013fc1213.html

Scott Kerwin, Partner
Aboriginal Law
BLG, Vancouver
604.640.4029
SKerwin@blg.com

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

Expertise

Aboriginal Law