Wesley v. British Columbia

2026 BCSC 422 Wesley v. British Columbia IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Wesley v. British Columbia, 2026 BCSC 422 Date: 20260312 Docket: S202473 Registry: Victoria Between: Joanne Wesley and Dr. Paulette Steeves Plaintiffs And: His Majesty the King in Right of the Province of British Columbia, Dr. T.C. MacKenzie, John/Jane Doe #1, John/Jane Doe #2, John/Jane Doe #3, John/Jane Doe #4, John/Jane Doe #5, and the Attorney General of Canada Defendants Corrected Judgment: The text of the judgment was corrected on the cover page, paragraphs 37, 57, 132, 154 and under heading 4 on page 46, on April 2, 2026. Before: The Honourable Justice V. Jackson Reasons for Judgment Counsel for the Plaintiffs: P. Dudding, R. Sahota and E. Bocancea Counsel for the Defendant, Attorney General of Canada: M. French, V. Broughton D. Nunez Counsel for the Defendant, His Majesty the King in right of the Province of British Columbia: L. Mauro, T. Bant and K. Kotliarsky Counsel for the Defendant, Dr. T.C. MacKenzie: W. Clark and S. Marcinkow Place and Date of Hearing: Victoria, B.C. October 28-31, November 18-20, November 22, and 25-29, 2024 Written Submissions of the Attorney General of Canada: February 6, 2025 Written Submissions of His Majesty the King in right of the Province of British Columbia: February 6, 2025 Written Submissions of the Plaintiffs: February 20, 2025 Further Written Submissions of the Attorney General of Canada: January 30, 2026 Further Written Submissions of His Majesty the King in right of the Province of British Columbia: January 30, 2026 Further Written Submissions of the Plaintiffs: February 27, 2026 Place and Date of Judgment: Victoria, B.C. March 12, 2026 Table of Contents I. INTRODUCTION.. 5 II. LEGAL FRAMEWORK.. 6 A. The test for certification. 6 B. The first stage of the certification analysis parallels the test for striking a claim on the basis that it does not disclose a reasonable cause of action. 6 C. The identifiable class requirement 8 D. The common issues requirement 9 E. The preferable procedure requirement 10 F. The representative plaintiff requirement 12 III. FACTUAL BACKGROUND.. 12 IV. ANALYSIS. 15 A. Does the SANOCC disclose causes of action?. 15 1. The Claims of the Family Class. 16 2. The Claims against His Majesty the King in right of the Province of British Columbia and Attorney General of Canada. 16 a) Negligence. 17 b) Breach of fiduciary duty. 19 c) Unjust enrichment 20 d) Misfeasance in public office. 21 e) The Indigenous Claims. 24 f) Crown immunity. 30 (1) The Province. 31 (2) Canada. 31 (3) Analysis and conclusion. 31 3. The claims against Dr. MacKenzie and vicarious liability. 35 a) Battery. 35 b) (Medical) negligence. 36 c) Breach of fiduciary duty. 37 d) Vicarious liability of the Province and Canada. 37 4. Limitation periods. 39 5. Conclusion on cause of action analysis. 42 B. Is there an identifiable class of two or more persons?. 43 1. There is some evidence that there is a Class of two or more persons who would have claims as advanced in the SANOCC.. 43 2. The Class is not overbroad. 44 3. There are no conflicts between the Class. 45 4. Conclusion on an identifiable class of two or more. 46 C. Do the claims raise common issues? 46 D. Is a class proceeding the preferable procedure?. 51 E. Is there a representative plaintiff who would fairly and adequately represent the interests of the Class. 60 a) Positions of the parties. 61 b) Analysis and conclusion. 61 V. CONCLUSION AND SUMMARY. 63 I. INTRODUCTION [1] The plaintiffs have filed a notice of civil claim, which was subsequently twice amended ("the SANOCC"), seeking damages from the defendants for injury and loss stemming from systemic sexual, physical, and mental abuse they allege they and others suffered while they were detained at an industrial home for girls (the "School") during its operation between April 3, 1914 and August 21, 1973 (the "Class Period"). [2] The plaintiffs apply under s. 2(2) of the Class Proceedings Act, R.S.B.C. 1996, c. 50 [CPA] for an order certifying this action as a class proceeding. The plaintiffs also wish to add a plaintiff, Shirley May Williams, to be a representative plaintiff. The plaintiffs bring their certification application on behalf of the Class (being all persons who were admitted or committed to or resided at the School during the Class Period), an Indigenous Subclass (being all "Indians" as that term is used in s. 91(24) of the Constitution Act, 1867, and all "Aboriginal peoples" as that term is used in s. 35(2) of the Constitution Act, 1982, including all Indigenous persons, status Indians, non-status Indians, Inuit and Métis persons, who were incarcerated at the School during the Class Period), and a Family Class (meaning all persons who are or were the spouse, parent, grandparent, stepparent, child or stepchild of a member of the Class). [3] The defendants acknowledge the seriousness of the plaintiffs' allegations However, they all argue the plaintiffs' applications should be dismissed. Both of the government defendants apply to strike parts of the SANOCC, without leave to amend, on the basis that it discloses no reasonable claim and to dismiss the action as against them: Supreme Court Civil Rule 9-5(1)(a). [4] The four applications were argued together. II. LEGAL FRAMEWORK A. The test for certification [5] Section 4(1) of the CPA establishes the test for certification. On application, the Court must certify a proceeding as a class proceeding if the following requirements are met: (a) the pleadings disclose a cause of action; (b) there is an identifiable class of 2 or more persons; (c) the claims of the class members raise common issues, whether or not those common issues predominate over issues affecting only individual members; (d) a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues; (e) there is a representative plaintiff who (i) would fairly and adequately represent the interests of the class, (ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and (iii) does not have, on the common issues, an interest that is in conflict with the interests of other class members. B. The first stage of the certification analysis parallels the test for striking a claim on the basis that it does not disclose a reasonable cause of action [6] Because the requirement that a pleading disclose a cause of action is assessed on the same standard of proof that applies to a motion to dismiss, it is not uncommon for the Court to hear a certification application and an application to dismiss for disclosing no cause of action concurrently, as the parties jointly asked the Court to do so in this case. [7] The pleading discloses a cause of action unless, assuming the pleaded facts to be true and making allowances made for deficiencies in drafting, it is plain and obvious that a plaintiff's claim cannot succeed, in which case the application to strike will triumph: Pro‑Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57 [Pro-Sys]; at para. 63; Finkel v. Coast Capital Savings Credit Union, 2017 BCCA 361 at paras. 16-17; Hollick v. Toronto (City), 2001 SCC 68 at para. 25; Jiang v. Peoples Trust Company, 2017 BCCA 119 (Jiang CA) at para. 55. To that end, I have assumed the pleaded facts to be true for the purposes of considering whether the SANOCC discloses a cause of action. [8] A plaintiff is not to be prevented from proceeding with their case because of the length and complexity of the issues, the novelty of the cause of action, or the potential for a defendant to present a strong defence: Hunt v. Carey Canada Inc., [1990] 2 SCR 959 at 980. If there is a chance the plaintiffs might succeed, they are not to be "driven from the judgment seat": Hunt at 980. [9] However, a claim will not survive an application to strike simply because it is novel: Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19 at para. 19. Meaningful access to justice is nourished where claims that are doomed to fail, including novel claims that provide no legal justification for a protracted and expensive trial, are disposed of at an early stage in the proceedings: Babstock at para. 19, citing Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38 at para. 19. The guidance the Supreme Court of Canada has given to lower courts is that "if a court would not recognize a novel claim when the facts as pleaded are taken to be true, the claim is plainly doomed to fail and should be struck", even though it means courts will need to resolve complex questions of law and policy in making their determination: Babstock at para. 19. Our Court of Appeal has also recognized that "scarce judicial resources may be squandered when difficult questions of law are continually side-stepped in the class action context" and that insofar as reasonably possible, difficult questions of law that arise on the pleadings should be addressed directly at the certification stage: Wakelam v. Wyeth Consumer Healthcare/Wyeth Soins de Sante Inc., 2014 BCCA 36 at para. 64; Finkel at para. 18. [10] Although the merits of the claim are not the focus of the inquiry at the certification stage, the Court is nonetheless required to perform a gatekeeping function to ensure only claims in the common interest of class members are advanced: Finkel at para. 15. The Court does not fulfil its gatekeeping role where it only undertakes a perfunctory examination of the proposed class proceeding and the objects of the CPA are not furthered where an action fails when heard on its merits because the test for certification was not properly applied: Finkel at para. 15; Pro-Sys at para. 103. C. The identifiable class requirement [11] There must be some evidence of an identifiable class of two or more persons: CPA, s. 4(1)(b). Former Chief Justice Bauman summarized the principles governing the identifiable class requirement in Jiang CA at para. 82: - the purposes of the identifiable class requirement are to determine who is entitled to notice, who is entitled to relief, and who is bound by the final judgment; - the class must be defined with reference to objective criteria that do not depend on the merits of the claim; - the class definition must bear a rational relationship to the common issues -- it should not be unnecessarily broad, but nor should it arbitrarily exclude potential class members; and - the evidence adduced by the plaintiff must be such that it establishes some basis in fact that at least two persons could self-identify as class members and could later prove they are members of the class. [12] A plaintiff must establish there is some basis in fact to believe there are two or more potential claimants within the class as defined, although it is not necessary to show more than one person within the class is motivated to bring the class proceeding: Harrison v. Afexa Life Sciences Inc., 2018 BCCA 165 (Harrison CA) at para. 32, leave to appeal to SCC ref'd 2019 CarswellBC 250; Keatley Surveying Ltd. v. Teranet Inc., 2015 ONCA 248 at para. 72. However, a lack of interest by class members in pursuing an action may be an important factor for the Court when considering whether class proceedings is the preferable procedure under s. 4(1)(d) of the CPA: Harrison CA at para. 32. The inclusion of individuals who may ultimately not have an individual claim against the defendants is not a bar to certification: Boulanger v. Johnson & Johnson Corporation, 2007 CanLII 735 (ON SC) at para. 22, [2007] O.J. No. 179; Heward v. Eli Lilly & Company, 2007 CanLII 2651 (ON SC) at paras. 67-69, [2002] O.J. No. 404, aff'd 91 O.R. (3d) 691 (SCDC). D. The common issues requirement [13] There must be some evidence that claims of class members raise common issues: CPA, s. 4(1)(c). The term "common issues" is defined in s. 1 of the CPA: "common issues" means (a) common but not necessarily identical issues of fact, or (b) common but not necessarily identical issues of law that arise from common but not necessarily identical facts; [14] A plaintiff need only establish a minimum factual basis for the existence of common issues, namely that there is "some basis in fact": Fulawka v. Bank of Nova Scotia, 2012 ONCA 443 at para. 79, leave to appeal to SCC ref'd, 34932 (21 March 2013). Common issues need to be a substantial ingredient of each class member's claim and must advance the litigation in a material way for the benefit of class members: Kett v. Mitsubishi Materials Corporation, 2020 BCSC 1879 at para. 121. However, a question can constitute a common issue even where the answer to the question could be nuanced to reflect individual claims: Rumley v. British Columbia, 2001 SCC 69 (Rumley SCC) at para. 32. [15] The requirement that there be some basis in fact that there are common issues only requires a plaintiff to establish there is a triable factual or legal issue that, once determined, will advance or terminate the litigation in a meaningful way; it is not necessary for the common issues to be determinative of liability: Service v. University of Victoria, 2019 BCCA 474 at para. 59 [Service CA]; Finkel at para. 22. In Pro-Sys at para. 108, Justice Rothstein, writing for the Court, summarized the principles applicable to the common issues analysis: [108] In Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, this Court addressed the commonality question, stating that "[t]he underlying question is whether allowing the suit to proceed as a [class action] will avoid duplication of fact-finding or legal analysis" (para. 39). I list the balance of McLachlin C.J.'s instructions, found at paras. 39-40 of that decision: (1) The commonality question should be approached purposively. (2) An issue will be "common" only where its resolution is necessary to the resolution of each class member's claim. (3) It is not essential that the class members be identically situated vis-à-vis the opposing party. (4) It not necessary that common issues predominate over non-common issues. However, the class members' claims must share a substantial common ingredient to justify a class action. The court will examine the significance of the common issues in relation to individual issues. (5) Success for one class member must mean success for all. All members of the class must benefit from the successful prosecution of the action, although not necessarily to the same extent. [16] For a question to be common, success for one member of the class does not necessarily have to lead to success for all members, but it must serve to advance the resolution of every class member's claim: Vivendi Canada Inc. v. Dell'Aniello, 2014 SCC 1 at paras. 45-46. However, success for one member must not result in failure for another. A common issue is one that can be determined without individualized investigation: Ewert v. Canada (Attorney General), 2022 BCCA 131 (Ewert CA) at para. 25. E. The preferable procedure requirement [17] There must be some evidence that a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues: CPA, s. 4(1)(d). As noted by Chief Justice McLachlin for the Court in Hollick: [28] The report of the Attorney General's Advisory Committee makes clear that "preferable" was meant to be construed broadly. The term was meant to capture two ideas: first the question of "whether or not the class proceeding [would be] a fair, efficient and manageable method of advancing the claim", and second, the question of whether a class proceeding would be preferable "in the sense of preferable to other procedures such as joinder, test cases, consolidation and so on": Report of the Attorney General's Advisory Committee on Class Action Reform, [Toronto: The Committee, 1990], at p. 32. [18] A certification application focuses on the form of the proceeding, not its underlying merit. The question at the certification stage is not whether the claim is likely to succeed, but whether the suit is appropriately prosecuted as a class action: Hollick at para. 16; Pro‑Sys at paras. 99-100. In determining whether a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues, s. 4(2) of the CPA requires the Court to consider all relevant matters, including: (a) whether questions of fact or law common to the members of the class predominate over any questions affecting only individual members; (b) whether a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate actions; (c) whether the class proceeding would involve claims that are or have been the subject of any other proceedings; (d) whether other means of resolving the claims are less practical or less efficient; (e) whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means. [19] The possibility of the need for individualized inquiries is also a relevant factor when considering whether other means of resolving the claims are less practical or less efficient: Jiang CA at para. 105. [20] None of the statutory factors are prerequisites to certification or determinative of whether a class proceeding is the preferable procedure: Kirk v. Executive Flight Centre Fuel Services, 2017 BCSC 726 at para. 138, rev'd on other grounds 2019 BCCA 111, leave to appeal to SCC ref'd, 38678 (17 October 2019). [21] Courts are not to take an overly restrictive approach to interpreting the CPA, but rather are to approach their task in a manner that gives full effect to the benefits of class proceedings: Hollick at para. 15. The preferability inquiry is to be conducted through the lens of the three principal advantages of class actions--judicial economy, access to justice, and behaviour modification: AIC Limited v. Fischer, 2013 SCC 69 at para. 22; Hollick at para. 27; Service CA at para. 64. In the context of this analysis, access to justice is concerned with claimants being afforded both a fair process for resolving their claims and a just and effective remedy for their claims if established: AIC Limited at para. 24. [22] The Court must not refuse to certify a class proceeding merely because the relief claimed includes a claim for damages that would require individual assessment after determination of the common issues, different remedies are sought for different class members, the number of class members or the identity of each class member is not known, and / or the class includes a subclass whose members have claims that raise common issues not shared by all class members: CPA, s. 7. F. The representative plaintiff requirement [23] For a proceeding to be certified as a class proceeding, there must be some evidence there is a representative plaintiff who would fairly and adequately represent the interests of the class, has presented a workable litigation plan for advancing the action, and who is not prevented from serving as a representative plaintiff by reason of having a conflict of interest on the common issues: CPA, s. 4(1)(e). [24] This suitability threshold is relatively low. In assessing suitability, the Court may look to the motivation of the representative, the competence of the representative's counsel, and must be satisfied they will vigorously and capably prosecute the interests of the class, but the proposed representative "need not be 'typical' of the class, nor the 'best' possible representative": CPA, s. 4(1)(e), Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46 at para. 41. III. FACTUAL BACKGROUND [25] On July 20, 1908, the Juvenile Delinquents Act received Royal Assent: Juvenile Delinquents Act, S.C 1908, C. 40 and amendments thereto (JDA). The JDA was enacted on the basis that it was considered to be "inexpedient that youthful offenders be classed or dealt with as ordinary criminals, the welfare of the community demanding that they should on the contrary be guarded against association with crime and criminals, and should be subjected to such wise care, treatment and control as will tend to check their evil tendencies and to strengthen their better instincts": JDA, preamble. The JDA defined the "juvenile delinquent" as any child who violated any provision of the Criminal Code, any federal or provincial statute, or municipal bylaw, punishable by a fine or imprisonment, or who was "liable by reason of any other act to be committed to an industrial school or juvenile reformatory under the provisions of any federal or provincial statute", and defined the offence of "delinquency" as "the commission by a child of any of those acts": JDA, ss. 2(c), 3. [26] When a child (defined as a boy or girl apparently or actually under the age of 16) was found to be a juvenile delinquent, the Court could commit them to an industrial school, either for boys or girls, approved by the Lieutenant Governor in Council. Once committed, the child remained a ward of the Court until discharged by order of the Court or they turned 21. In provinces where a superintendent of neglected and dependent children had been appointed under a provincial statute, the child was not to be released from the industrial school by the judge without a report from the superintendent recommending their release. Even children under the age of twelve could be committed as juvenile delinquents where other efforts to reform the child had failed and the Court found that the best interests of the child, and the welfare of the community, required their commitment: JDA, s. 21. [27] In 1912, British Columbia adopted the Industrial Home for Girls Act, S.B.C. 1912, 2 Geo. 5, c. 11 (the "Act"). An industrial home for girls included a prison, reformatory, and house of correction, within the meaning of British Columbia or federal statutes established for the custody and detention of detained girls, with a view to their education, industrial training, and moral reclamation: Act, ss. 2, 4. [28] From 1914 to 1973, the government of British Columbia operated the School as a correctional facility for girls under the age of 18. The School was initially located on Cassiar Street in Vancouver. In April 1959, it was moved to Willingdon Avenue in Burnaby and became known as the Willingdon School for Girls. The School was over capacity when it moved to Willingdon, a trend which continued. [29] The School primarily received girls committed to either an indefinite period under s. 16 of the JDA or an indefinite period of not less than two years under s. 6 of the Act, for offences such as "incorrigibility", "sexual immorality" (which included the crime of being homosexual), and, for Indigenous girls, the offence of being intoxicated off a reserve. Some of the girls were detained at the School because they were considered to be "unmanageable". [30] The SANOCC alleges that while at the School, Ms. Wesley, Dr. Steeves and other members of the proposed Class, were victims of sexual, physical, and mental abuse, carried out by employees, including teachers and medical staff, and sometimes other girls. The SANOCC pleads that some of the girls at the School were subjected to forced sterilization under An Act Respecting Sexual Sterilization, R.S.B.C. 1933, c. 59 and subsequent legislation. [31] The SANOCC alleges that girls detained at the School ranged in age six (6)[1] to eighteen (18) years old and were not separated by age, or risk, such that girls who were younger or 'better behaved' were not separated from those described as 'persistently incorrigible and vicious' or those with criminal backgrounds. [32] The SANOCC alleges that upon detention, each girl received a complete physical examination, which included a genital examination, and was kept in "quarantine" for 14 days in one of five solitary confinement cells, commonly referred to as "the hole". The SANOCC alleges that the hole was widely used at the School as a form of discipline. [33] The SANOCC alleges the School was more prisonlike than it was an educational institution. There were prison style haircuts, uniforms, work detail, and meals were eaten in silence under rigid surveillance. The School had secure "cell chambers" made by repurposing "cages" from a nearby prison farm. The School was described, in internal documentation, as a "house of horror"". [34] The SANOCC alleges that the defendant Dr. MacKenzie, or a locum, frequently conducted genital examinations on escapees following their recapture, pursuant to guidelines put in place by the School. [35] The SANOCC alleges that the plaintiff Joanne Wesley was held at the School from December 2, 1971, when she was 14, until June 17, 1972 ,and that she spent approximately half her time in solitary confinement. [36] The SANOCC alleges that the plaintiff Dr. Paulette Steeves is Cree-Métis and was incarcerated at the School at various times between the ages of 13 and 16 years old, roughly between 1968 and 1971. The SANOCC alleges that at one point, Dr. Steeves was confined in the hole for a six week period. [37] The SANOCC alleges that Indigenous girls were overrepresented at the School, many displaced from communities far away from Vancouver, and that the School's curriculum aimed to deliberately extinguish the cultural identities of Indigenous girls. The SANOCC alleges that girls, including Indigenous girls, were not released until there was an adequate release plan and that the federal Department of Indian Affairs, through the Inspector of Indian Agents, had a responsibility to play a role in the development of the needed release plans so that their return was not delayed. [38] The School closed in 1973. IV. ANALYSIS A. Does the SANOCC disclose causes of action? [39] At the outset it should be noted that the SANOCC at times refers to various breaches by "the Defendants" globally and without distinction . This practice should be avoided. As Justice Voith, then of this Court, succinctly pointed out in Sahyoun v. Ho, 2013 BCSC 1143 at para. 54, "neither a defendant nor a trier of fact should have to parse through a notice of civil claim and either cobble together or speculate about what cause of action is being advanced against which defendant". [40] My cause of action analysis begins with the asserted claims of the Family Class. Thereafter I address by the causes of action the plaintiffs argue they have advanced as against the Province and Canada. Finally, I address the causes of action the plaintiffs argue they have advanced as against Dr. MacKenzie, including the vicarious liability asserted against the government defendants for the actions of Dr. MacKenzie and the Doe defendants, the latter alleged in the SANOCC as being employed by the Province as superintendents, teachers or staff at the School. 1. The Claims of the Family Class [41] The defendants all argue the claims of the Family Class are bound to fail. I agree. Despite being twice amended, the SANOCC does not advance any factual or legal basis for the claim being advanced on their behalf. I conclude there is none. [42] The plaintiffs plead reliance on the Family Compensation Act, R.S.B.C. 1996, c. 126, however that statute creates a statutory cause of action for the benefit of the spouse, parent or child of a person whose death has been caused by wrongful act, neglect or default: ss. 2, 3. The SANOCC does not allege any class member died as a result of wrongful act, neglect or default of any of the defendants. Unlike legislation such as Ontario's Family Law Act, R.S.O. 1990, c. F.3, s. 61, which provides a right, in certain circumstances and to certain dependants, to sue in tort where a person is killed or injured by the fault or neglect of another, the Family Compensation Act does not create any statutory cause of action for harms, injury, or loss alleged as being derivative of harm suffered by a family member short of death. [43] It is plain and obvious the claims of the Family Class cannot succeed. Those aspects of the SANOCC are struck. 2. The Claims against His Majesty the King in right of the Province of British Columbia and Attorney General of Canada [44] The plaintiffs allege systemic wrongs - both actions and omissions - by His Majesty the King in right of the Province of British Columbia (the Province) and the Attorney General of Canada (Canada) that caused them to suffer injury and loss. They argue these wrongs give rise to equitable and tort claims for the Class in negligence, breach of fiduciary duty, misfeasance in public office, unjust enrichment (at times the "Tort Claims" for ease of reference), vicarious liability for the wrongful conduct of Dr. MacKenzie and the Doe defendants, as well as claims for the Indigenous Subclass for breach of constitutional duties and Aboriginal rights (the "Indigenous Claims"). a) Negligence [45] To establish a claim in negligence a plaintiff must establish the defendant owes them a duty of care, breached that duty, and that the breach caused them to suffer damage. A prima facie duty of care has two required elements: reasonable foreseeability of harm, and a sufficiently proximate relationship between the parties such that it would be just and fair having regard to that relationship to impose a duty of care in law on the defendant: Canada (Attorney General) v. Frazier, 2022 BCCA 379 at para. 27. In negligence actions against governments in relation to the exercise of legislative powers, it "may be challenging for a plaintiff to establish a relationship of proximity between a government actor and individual members of the public potentially affected by the exercise, or failure to exercise, legislative powers intended for the good of the public as a whole": Frazier at para. 34. As noted at para. 34 of Frazier, in negligence actions against government a private law duty of care may arise in one of three ways: 1. the statute itself implicitly or explicitly creates a private relationship of proximity giving rise to a prima facie duty of care; 2. proximity arises from a series of specific interactions between the government and the claimant, through which the government has entered into a special relationship with the claimant that is sufficient to establish proximity; or 3. through a combination of specific interactions between the parties and the government actor's statutory powers and duties. [46] Canada argues the negligence claims against it cannot succeed because there is no relationship of proximity between Canada and the Class. It submits Canada cannot be liable for enacting legislation: Mackin v. New Brunswick (Minister of Finance); Rice v. New Brunswick, 2002 SCC 13 at para. 78. It further submits that the negligence claim against it is based on the enactment of the JDA which cannot give rise to a duty of care. [47] I agree Canada's passage of the JDA alone would not create a proximate relationship that could ground a cause of action in negligence by the Class. However, that is not the extent of the allegations against Canada, nor are the allegations against Canada limited to its duty and alleged failures in discharge planning in relation to the Indigenous Subclass. [48] The SANOCC pleads that Canada had "involvement with the operation of the School", imposed "practices and guidelines governing the operation of the School", funded the School, and that "Canada and British Columbia embarked on a unilateral undertaking related to the education, housing, social development and rehabilitation of Class members". Those allegations are facts, not conclusions incapable of being proven, and they are presumed to be true for the purpose of the plaintiffs' certification application and the Province and Canada's applications to strike. Whether those facts will ultimately be proven is not at issue in this certification hearing. [49] Canada also argues that to the extent that a duty of care is alleged to arise because of Canada's involvement with the School through imposition of practices and guidelines, these constitute "core policy" decisions for which it would have general immunity provided the policy was neither irrational nor taken in bad faith: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 at para. 74; Nelson (City) v. Marchi, 2021 SCC 41 at para. 35. However, as the Court noted in Imperial Tobacco at para. 78, it is "notoriously difficult to decide whether a particular government decision falls on the policy or operational side of the line". In my view whether Canada's involvement constituted a core policy for which it was immune is not an issue that can properly be determined at this certification hearing. [50] The negligence claim, as against the Province and Canada, is pled as being rooted in the allegation that both government entities played a role in operating the School and it is not plain and obvious that this alleged relationship is incapable of giving give rise to a duty of care to the Class or that the facts alleged to have occurred at the School would not constitute breaches of that duty. [51] The SANOCC pleads facts that, if established, disclose a cause of action in the tort of negligence against the Province and Canada. b) Breach of fiduciary duty [52] The constituent elements of breach of fiduciary duty are (1) the defendant was in a fiduciary relationship with the plaintiff, (2) the defendant acted in a manner inconsistent with that fiduciary relationship, and (3) loss or damage resulted: Testar Estate v. Leslie, 2023 BCSC 611 at para. 46, aff'd 2024 BCCA 129. [53] Canada argues it is plain and obvious that the SANOCC does not disclose a reasonable cause of action for breach of fiduciary duty because there is nothing in the SANOCC which establishes that Canada had a fiduciary duty, much less breached it. It notes there are three elements for establishing an ad hoc fiduciary duty - an undertaking of responsibility to act in the best interests of a beneficiary (which may arise from the relationship between the parties), the beneficiary must be a defined person / class of persons who are vulnerable to the fiduciary in the sense that the fiduciary has a discretionary power over them, and the power of the fiduciary to affect the legal or substantial practical interests of the beneficiary: Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24 at paras. 29-32; Wewaykum Indian Band v. Canada, 2002 SCC 79 at para. 96. Canada argues those facts are not pled and cannot be established. [54] Again, I disagree. The plaintiffs' breach of fiduciary duty claim against Canada is not based on some broad duty to act in the general public interest and it is not plain and obvious that the "many hats" and interests which Canada may represent in the factual context alleged - the operation of the School - would defeat any determination that a fiduciary duty was owed to the Class. The plaintiffs' claim is that Canada had a fiduciary duty to the Class, as girls admitted or committed to the School, and that the content of that fiduciary duty included a duty to provide for their security and protection from harm while they were confined there. To repeat, the SANOCC pleads that Canada had "involvement with the operation of the School", imposed "practices and guidelines governing the operation of the School", funded the School, and that "Canada and British Columbia embarked on a unilateral undertaking related to the education, housing, social development and rehabilitation of Class members". Assuming those facts as true, it is not plain and obvious Canada and the Province would not have a fiduciary duty to the girls who were admitted or committed to the School: R.(L.) v. R., 65 B.C.L.R. (3D) 382 (SC) (Rumley SC 1998) at para. 37, rev'd in part on other grounds, 1999 BCCA 689 (in particular para. 25), aff'd Rumley SCC; Brown v. Attorney General of Canada, 2014 ONSC 6967. [55] The SANOCC pleads facts that if established disclose a cause of action for breach of fiduciary duty against the Province and Canada. c) Unjust enrichment [56] At the hearing the plaintiffs advised they no longer seek to have certified any common issues regarding unjust enrichment by the Province or Canada however, the SANOCC has not been amended to give clear effect to that stated intention. In their applications, the Province and Canada both ask that the portions of the SANOCC that may be aimed at pleading an unjust enrichment cause of action be struck. [57] I agree that the facts pled in the SANOCC do not disclose a reasonable claim of unjust enrichment against the Province or Canada. [58] Unjust enrichment has three essential elements: a) an enrichment of the defendant; b) a corresponding deprivation of the plaintiff; and c) the absence of any juristic reason for the enrichment: Ileman v. Rogers Communications Inc., 2014 BCSC 1002 at para. 100, aff'd 2015 BCCA 260, leave to appeal to SCC ref'd 36600 (11 February 2016); Tucci v. Peoples Trust Company, 2017 BCSC 1525 at para. 170, rev'd in part on other grounds 2020 BCCA 246 [Tucci SC]. The SANOCC pleads that Canada "received funding from municipalities and from the parents of Class members, pursuant to s. 20(2) of the Juvenile Delinquents Act, 1929, S.C. 1929, c. 46 (JDA 1929), for the support of Class members at the school". However, the SANOCC does not plead that the Class members themselves made any payment that corresponded to an enrichment of Canada. A pleading that their parents made such a payment is insufficient. [59] Further, s. 20(2) of the JDA 1929 provided the court with the power to make an order requiring a child's parent or the applicable municipality to contribute to the institution's support in an amount the court determined to be appropriate, with the municipality being able to recover any such sum from the child's parents. The payments were not trust funds designated for a particular child's benefit and the SANOCC does not allege payments beyond those contemplated by legislation were made. Where any such payments were ordered, and payment made, the legislation and corresponding court orders would constitute a juristic reason for the deprivation. [60] It is plain and obvious that the claims of unjust enrichment against the Province and Canada cannot succeed as there is no reasonable claim. Those aspects of the SANOCC are struck. d) Misfeasance in public office [61] The B.C. Court of Appeal outlined the elements of misfeasance in public office in J.P. v. British Columbia (Children and Family Development), 2017 BCCA 308, leave to appeal to SCC ref'd, 37817 (8 March 2018): [321] The tort is based on the premise that those who hold public office may not exercise their power in a deliberate and unlawful manner for the ulterior or improper purpose of harming a member of the public. The rationale for the tort was articulated by Lord Steyn in Three Rivers D.C. v. Bank of England, [2000] W.L.R. 1220 at 1230 (U.K.H.L.): " in a legal system based on the rule of law executive or administrative power 'may be exercised only for the public good' and not for ulterior and improper purposes." [322] In Odhavji Estate v. Woodhouse, 2003 SCC 69 at para. 30, the Court explained the rationale of the tort as "to protect each citizen's reasonable expectation that a public officer will not intentionally injure a member of the public through deliberate and unlawful conduct in the exercise of public functions." [323] For good reason, the ambit of the tort has always been narrow. As was observed by Madam Justice Newbury in Powder Mountain Resorts Ltd. v. British Columbia, 2001 BCCA 619: [2] But for reasons that are perhaps obvious, the tort must be used cautiously. Otherwise, the courts risk straying into the arena of political decision-making, bypassing the normal restraints associated with judicial review, and becoming the arbiters of the personal thought processes of public officials. One recent commentator (Phillip Allott, "EC Directives and Misfeasance in Public Office", [2000] 59 Camb. L.J. 4) has written that the court should not, by means of the tort, take on the role of "ombudsman, a parliamentary committee, or an organ of public opinion in reviewing even egregious acts of maladministration, official incompetence, or bad judgement." (at 6.) To avoid dangers of this kind, a balance must be sought between curbing unlawful behaviour on the part of governmental officials on the one hand, and on the other, protecting officials who are charged with making decisions for the public good, from unmeritorious claims by persons adversely affected by such decisions. [324] There are two branches of the tort; both share two common elements: (1) deliberate unlawful conduct by a public officer in the exercise of his or her powers (the actus reus); and (2) the awareness (knowledge) that the unlawful conduct is likely to injure the particular plaintiff (the mens rea): Odhavji at para. 23. With respect to the nature of the conduct, "the essential question to be determined is not whether the officer has unlawfully exercised a power actually possessed, but whether the alleged misconduct is deliberate and unlawful": Odhavji at para. 24. [325] The two ways this tort can arise were first described by the House of Lords in Three Rivers and subsequently adopted by the Supreme Court in Odhavji: [22] In Three Rivers, the House of Lords held that the tort of misfeasance in a public office can arise in one of two ways, what I shall call Category A and Category B. Category A involves conduct that is specifically intended to injure a person or class of persons. Category B involves a public officer who acts with knowledge both that she or he has no power to do the act complained of and that the act is likely to injure the plaintiff. [326] Category A misfeasance is established when a public officer exercises his or her power for the specific purpose of harming the plaintiff. Three Rivers described it as "targeted malice" that includes conduct done for the ulterior or improper purpose of harming the plaintiff. Proof of the specific intent to harm the plaintiff will be sufficient to establish that the public officer had knowledge his or her conduct was likely to harm the plaintiff: Odhavji at para. 23. [327] Category B misfeasance is more complex. It does not require a finding of specific intent to harm the plaintiff, but rather an objective determination that the public officer knowingly engaged in a deliberate unlawful act with an awareness that his or her conduct would likely harm the plaintiff or a class of plaintiffs. Knowledge of harm alone is insufficient to establish that the public officer acted in bad faith or dishonestly. Rather, the officer must know that the deliberate conduct is inconsistent with the obligations of the office, including that it exceeds the powers of the office, or omits a legally required act: Odhavji at para. 28 and Powder Mountain at para. 67. [329] The mental element of Category A or Category B misfeasance establishes the "bad faith" or "dishonesty" of the public officer. Accordingly, it requires "clear proof commensurate with the seriousness of the wrong": Powder Mountain at para. 8 and Odhavji at para. 28. Awareness or knowledge that the unlawful act is likely to harm the plaintiff requires at least a subjective recklessness or wilful blindness, if not actual knowledge, of the likely consequences of the unlawful act: Powder Mountain at paras. 7 and Odhavji at paras. 25 and 38. Subjective recklessness or wilful blindness requires a higher standard of proof than objective foreseeability of harm for negligence. The mental element of the tort thus constrains its ambit from including inadvertent or negligent conduct by a public officer in the discharge of his or her official obligations: Odhavji at para. 26. [330] In Powder Mountain, Newbury J.A. addressed this important distinction as follows: [7] Thus there remains what in theory at least is a clear line between this tort on the one hand, and what on the other hand may be called negligent excess of power - i.e., an act committed without knowledge of (or subjective recklessness as to) its unlawfulness and the probable consequences for the plaintiff. [8] In First National Properties Ltd. v. McMinn (2001) 2001 BCCA 305 (CanLII), 198 D.L.R. (4th) 443, we also stated that courts should be cautious in dealing with the tort because it is an exception to the normal disinterest of the civil law in the motive underlying conduct, as opposed to the conduct itself; see Bradford Corp. v. Pickles (1895) A.C. 587 (H.L.). (The criminal law distinguishes between "motive" and "intention" but that distinction seems inoperative in the present context.) Motive is of course notoriously difficult to discern, and one may act for more than one motive. [Emphasis in original.] [331] The policy rationale behind this narrow application of the tort was also explained in Odhavji: [28] In a democracy, public officers must retain the authority to make decisions that, where appropriate, are adverse to the interests of certain citizens. Knowledge of harm is thus an insufficient basis on which to conclude that the defendant has acted in bad faith or dishonestly. A public officer may in good faith make a decision that she or he knows to be adverse to the interests of certain members of the public. In order for the conduct to fall within the scope of the tort, the officer must deliberately engage in conduct that he or she knows to be inconsistent with the obligations of the office. [Emphasis added.] [62] The SANOCC pleads that Canada engaged in a deliberate course of conduct by directing and promoting the incarceration of Indigenous Subclass members at the School. However, it does not plead facts that establish the incarceration was unlawful. As the plaintiffs acknowledge, all detention would have been pursuant to legislation which the plaintiffs do not allege was invalid. [63] However, the SANOCC also alleges the Province and Canada knowingly engaged in unlawful conduct, by failing to take adequate or any steps to fulfil duties owed to the Class in the operation of the School, including by failing to take steps to protect the Indigenous Subclass from cultural assimilation, failing to develop and implement adequate rehabilitation or discharge plans for the Indigenous Subclass, and by treating the Indigenous Subclass as a "political football", knowing such conduct was likely to injure the Class including the Indigenous Subclass. [64] The SANOCC pleads facts that if established disclose a cause of action for misfeasance in public office against the Province and Canada. e) The Indigenous Claims [65] The Province and Canada argue it is plain and obvious the Indigenous Claims are bound to fail for several reasons. [66] The Province and Canada both argue it is plain and obvious the plaintiffs' Indigenous Claims are bound to fail because Aboriginal rights are collective rights that cannot be claimed by individuals, and therefore "no individual plaintiff or Indigenous Subclass member has standing to assert collective Aboriginal rights": MacDonald v. British Columbia, 2022 BCCA 381, leave to appeal to SCC ref'd, 40551 (1 June 2023); Hwlitsum First Nation v. Canada (Attorney General), 2018 BCCA 276, leave to appeal to SCC ref'd, 38325 (28 March 2019); R. v. Desautel, 2021 SCC 17 at paras. 90-92; R. v. Van der Peet, [1996] 2 SCR 507 (Van der Peet) at paras. 31, 55, 63, 69; Lax Kw'alaams Indian Band v. Canada (Attorney General), 2011 SCC 56 at para. 40-41, 46. [67] The Province argues Indigenous communities have sole authority to decide who can speak on their behalf and submits no Indigenous community has authorized this claim to be advanced on their behalf. Canada similarly argues that generally, Aboriginal rights cannot be advanced on a general and universal basis, but instead musty be determined in relation to specific Indigenous communities and their specific practices, customs, and traditions. [68] Canada also argues there are no material facts pled that would demonstrate Canada exercised discretionary control over a cognizable Indigenous interest that could give rise to a sui generis fiduciary duty to the Indigenous Subclass: Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), 2018 SCC 4 at para. 44; Wewaykum Indian Band at para. 81; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 at para. 49; Guerin v. The Queen, [1984] 2 SCR 335 at pp. 382-387. Canada argues an Aboriginal claim cannot be adjudicated on a general basis and that claims must focus on the particular Indigenous group alleged to have held the practices, customs or traditions alleged to have been breached: Van der Peet, at paras. 31, 55, 63, 69; Lax Kw'alaams Indian Band at paras. 40-41, 46. [69] I disagree with the Province and Canada's position that it is plain and obvious the plaintiffs' Indigenous Claims are bound to fail. [70] The plaintiffs' Indigenous Claims are based on allegations that the Province and Canada, in their alleged respective roles associated with the operation of the School, breached generic constitutionally protected Aboriginal rights of the Indigenous Subclass, including by failing to protect the languages, cultural practices and traditional spiritual beliefs of the Indigenous Subclass, failing to take steps to protect the Indigenous Subclass from cultural assimilation, and failing to take steps to minimize their disconnection from their Indigenous communities, including alleged systemic failures in the development of discharge plans to facilitate the return of the Indigenous Subclass without unreasonable delay. [71] Read generously it is inherent in that pleading that the Indigenous Subclass held generic - in the sense of common and universal to all Indigenous persons - Indigenous rights to maintain their respective Indigenous languages, cultural practices, and traditional spiritual beliefs. The plaintiffs Indigenous Claims are rooted in an allegation that the actions and inactions of the Province and Canada played a role in causing the plaintiffs to become disconnected from their Indigenous culture, breaching their generic right to maintain their cultural integrity by breaking the chain of their individual connection to their respective Indigenous communities. Contrary to Canada's submission, the Indigenous rights alleged are specifically identified, albeit as generic rights. [72] The plaintiffs' Indigenous Claims are based on the theory that all Indigenous peoples and Indigenous individuals enjoy the generic right to cultural integrity. They argue no pre-contact Indigenous peoples spoke English, practiced the Christian faith, or engaged in Anglo-Christian cultural practices: United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc. A/RES/61/295 (UNDRIP), Articles 8 [Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture] and 9 [Indigenous peoples and individuals have the right to belong to an Indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned]. The plaintiffs say there is no merit to the argument that evidence of pre-contact practices is crucial to resolving their generic Indigenous Claims and argue a common issues trial would not inquire into the circumstances of individual class members or whether any specific Indigenous collective community had a right to any specific language, any discrete cultural practice, or any particular spiritual tradition. The Plaintiffs argue that instead, the question for the Court will be whether the Province and Canada operated the School in a manner which violated the cultural integrity of Indigenous Subclass members by imposing the English language, the Christian faith, and Eurocentric cultural practices upon them. [73] The plaintiffs' conceptualization of their Indigenous Claims has some support in the work of Professor Brian Slattery: Slattery, Brian, "What are Aboriginal Rights?" (2007). Comparative Research in Law & Political Economy. Research Paper No. 1/2007, https://digitalcommons.osgoode.yorku.ca/clpe/218. In this research paper, Professor Slattery outlined the distinction between specific and generic rights that emerged from Van der Peet at paras. 149, 152, 156, and Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 SCR 1010. According to Professor Slattery generic rights (perhaps one could perhaps also use 'common' or 'shared' as an appropriate descriptor) are a set of fundamental rights held by aboriginal groups in Canada which are both uniform and universal, which provide the foundation for, and supply the criterial for governing, specific rights: p. 2. The same view has subsequently found support in the jurisprudence: R. v. Côté, 1996 CanLII 170 (SCC), [1996] 3 SCR 139 at para. 56; First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 (CanLII) at para. 106; Renvoi à la Cour d'appel du Québec relatif à la Loi concernant les enfants, les jeunes et les familles des Premières Nations, des Inuits et des Métis, 2022 QCCA 185 at paras. 58, 468-494; rev'd in part 2024 SCC 519 at paras. 34, 86, 98, 113, 114; Varley v. Canada (Attorney General), 2025 FC 753 at para. 131. [74] Whereas the existence, nature and scope of specific Aboriginal collective rights are determined by factors that are particular to and differ between each Indigenous group and sometimes take quite specialized forms, "generic rights are rights of a uniform character whose basic contours are established by the common law of aboriginal rights", the "essential nature" of which "does not vary according to factors peculiar to the group": Slattery, pp. 3, 7. According to Professor Slattery, generic rights of all Indigenous peoples include "the right of cultural integrity": p. 8. [75] Professor Slattery further describes the generic right of cultural integrity as giving birth "to a host of specific rights that differ from group to group in accordance with their distinctive practices, customs and traditions, such as the right to hunt, the right to fish, the right to harvest certain natural resources, the right to practice a certain religion, the right to speak a certain language, and so on" but that "despite such differences, these specific rights fall into a number of broad classes, which relate to such subjects as livelihood, religion, language, and art" which he describes as "generic cultural rights of intermediate generality": p. 16. Professor Slattery refers to the examples of "the intermediate right to practice a traditional religion, which in turn shelters a plethora of specific religious rights vested in particular aboriginal groups" and "the right to speak an aboriginal language" as having "a strong claim to qualify as a cultural right of intermediate generality": p. 16. But for both such intermediate rights the "abstract dimensions ... are identical in all aboriginal groups where the right occurs": p. 17. Professor Slattery posits that "the right of cultural integrity forms a pyramid with three levels. At the top is the abstract right itself, which takes the same general form in all Aboriginal groups. Beneath this lies a tier of intermediate generic rights which relate to distinct subject-matters such as livelihood, religion, language and art. At the bottom rests a broad range of specific rights that differ from group to group in accordance with their particular cultural characteristics" Understood in this way, I am not convinced the plaintiffs' Aboriginal claims would involve the breadth of evidence Canada and the Province describe. [76] According to Professor Slattery, generic rights are uniform in character and universal in distribution and "make up a set of fundamental rights presumptively held by all aboriginal groups in Canada" such that "there is no need to prove in each case that a group" has these rights and that "very strong evidence would be needed to overturn this presumption": pp. 23, 25. [77] The Province's position is that the Declaration on the Rights of Indigenous Peoples Act, SBC 2019, c 44 ("BC Declaration Act") does not create new "generic" rights under s. 35 of the Constitution Act, 1982: Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430 at paras. 7, 144. However, quite aside from the BC Declaration Act, Professor Slattery's compelling work takes the plaintiffs' Indigenous Claims beyond the bound to fail threshold. [78] Further, courts "must take judicial notice of historical and ongoing colonialism, displacement, and attempts by the government to assimilate Indigenous peoples, including through residential schools and 'the 60s Scoop'" and "acknowledge that these methods of assimilation are often the very things that give rise to an Indigenous person's alienation from their Indigenous community or culture", with the result that "not everyone with Indigenous roots can prove those roots": R. v. Hamer, 2021 BCCA 297 at para. 115, leave to appeal ref'd, 39948 (7 April 2022), citing R. v. Ipeelee, 2012 SCC 13. Our Court of Appeal has recognized that women of Indigenous heritage are at risk for poor outcomes in our society, including social and economic marginalization, instability, vulnerability to living in abusive and dangerous environments and the development of mental health issues and substance use disorder" and that "it is widely recognized that an Indigenous woman's disconnection from a functional and protective Indigenous community increases her risk of experiencing these outcomes": R. v. Kehoe, 2023 BCCA 2 at paras. 46, 68, citing for example "Reclaiming Power and Place: The Final Report of the National Inquiry into Missing and Murdered Indigenous Women Girls," Vol 1b. at 108, 143. [79] In my view, it cannot be said that it is plain and obvious that the plaintiffs lack standing to advance the Aboriginal rights claims pled. Other courts have certified class actions in which a breach of Aboriginal rights has been advanced by Indigenous individuals and not just by collective Indigenous communities and Nations: Gottfriedson v. Canada, 2015 FC 706 at paras. 41, 47 (certifying a class action in relation to day school survivors of residential schools in B.C.); [80] The Province endeavours to distinguish Gottfriedson on the basis that the proposed representative plaintiffs included the Chiefs of two Bands who were presumably authorized by their communities to assert Aboriginal rights on their collective behalf". However, only one of the three classes certified (the band class) involved participation by two Indigenous communities - the Tk'emlúps te Secwépemc Indian Band (Kamloops) and the Shíshálh Band (Sechelt): at para. 17. The two other classes (the "survivor" class, being all Aboriginal persons who attended at an identified residential school from 1920 to 1997, and the "descendant" class, being all persons who are descendant from "survivor" class members) were not collectively represented by an Indigenous community collective: paras. 17, 33, 42. As the Province and Canada acknowledge, Aboriginal rights have been advanced by individuals in certain contexts and it has been left as an open question in others: R. v. Sparrow, [1990] 1 S.C.R. 1075; Van der Peet; Behn v. Moulton Contracting Ltd., 2013 SCC 26 at paras. 33, 35; Stonechild Certification. [81] There is also the issue of the BC Declaration Act. The purposes of the Declaration Act are to affirm the application of the UN Declaration to the laws of British Columbia, to contribute to the implementation of the UN Declaration, and to support the affirmation of, and develop relationships with, Indigenous governing bodies: s. 2. The scope of the Declaration Act is disputed. The Act provides that the government must, in consultation and cooperation with the Indigenous peoples in British Columbia, prepare and implement an action plan to achieve the objectives of the Declaration. The Province and Canada argue the Declaration Act is only prospective while the plaintiffs arguing it has broader application. [82] The BC Declaration Act provides that "Nothing in this Act is to be construed as delaying the application of the [UN Declaration] to the laws of British Columbia: s. 1(4). It is not, as the Province and Canada argue, a statement of future post-action plan actions. [83] The Supreme Court of Canada has recognized that declaratory relief is a discretionary remedy that must be considered within the unique context of the legal dispute at issue and that it can serve an important role in assisting future reconciliation efforts and helping to restore the honour of the Crown: Shot Both Sides v. Canada, 2024 SCC 12 at para. 82. [84] Whether the Indigenous Claims will be proven is not a matter before me on these applications, but it is not plain and obvious the plaintiffs' Indigenous Claims are bound to fail. f) Crown immunity [85] The Province argues it is plain and obvious none of the equitable and Tort Claims of the Class can succeed because of Crown immunity. Canada argues it is plain and obvious the equitable and Tort Claims of the Class that arose before 1953 cannot succeed because of Crown immunity. [86] Although the Province and Canada argued it is plain and obvious the Aboriginal claims are bound to fail because the Plaintiffs' lack standing to advance them, neither the Province nor Canada argued such claims are precluded on the basis of Crown immunity. (1) The Province [87] Prior to August 1, 1974, when legislation was introduced permitting claims against the provincial Crown, the Province was immune from both common law and equitable claims: Crown Proceedings Act, S.B.C. 1974, c. 24, now CPA; Arishenkoff v. British Columbia, 2005 BCCA 481, leave to appeal to SCC ref'd 31231 (27 April 2006) at paras. 56-57; Richard v. British Columbia, 2009 BCCA 185, leave to appeal to SCC ref'd33233 (29 October 2009) at paras. 46-47, 64. Given that the Province is immune from direct equitable and tort liability for events that took place before August 1974, and given the School closed in 1973, the Province argues it is plain and obvious all of the equitable and Tort Claims advanced by the Class against the Province are bound to fail. (2) Canada [88] Canada was immune from private law claims until the Crown Liability Act, S.C. 1942-53, 1-2 Elizabeth II, c. 30, received royal assent on May 14, 1953. The Crown Liability Act made the Crown liable in tort for the damages for which, if it were a private person of full age and capacity, it would be liable, in respect of a tort committed by a servant of the Crown, or in respect of a breach of duty attaching to the ownership, occupation, possession or control of property, however liability was not retroactive: ss. 3, 24. Canada argues Crown immunity protects it from being from directly liable for equitable and Tort Claims of the Class arising from conduct that occurred before May 14, 1953. (3) Analysis and conclusion [89] It is plain and obvious all of the Tort Claims of the non-Indigenous members of the Class against the Province are bound to fail because they arose before August 1, 1974, and the Province's direct liability is precluded by Crown immunity. Those claims are dismissed. [90] It is plain and obvious the Tort Claims of the non-Indigenous members of the Class against Canada that arose before May 14, 1953 are bound to fail because Canada's direct liability is precluded by Crown immunity. It is not plain and obvious those claims that arose after that date cannot succeed. [91] However, the plaintiffs argue Crown immunity does not apply to the equitable and Tort Claims of the Indigenous Class against the Province and Canada arguing that Crown immunity has been "superseded" by the enactment of the BC Declaration Act and Canada's adoption of the United Nations Declaration on the Rights of Indigenous Peoples Act, SC 2021, c 14 ("Canada Declaration Act"). The plaintiffs' position that Crown immunity does not apply to the tort law claims of the Indigenous Class against the Province is based on the view that the prospective nature of the CPA is inconsistent with the UN Declaration. In the SANOCC the plaintiffs seek, as one of several declaratory orders, that the BC Declaration Act and the UN Declaration supersede Crown immunity in relation to the claims of the Indigenous Subclass members. [92] The plaintiffs argue the legal landscape has changed significantly since Richard was decided by our Court of Appeal in 2009 in particular by the enactment of the BC Declaration Act and submit the Province's position that the Tort Claims of the Indigenous Subclass members are precluded by Crown immunity "is directly at odds" with the BC Declaration Act and "would serve to deprive, rather than provide, Indigenous Subclass members with 'an effective mechanism of ... redress' for their experiences at the School": UN Declaration, s. 8(2)(a), (c), and (d). The plaintiffs submit that the purposes of the BC Declaration Act support taking a cautious approach in considering threshold applications, such as a motion to strike or to certify a class proceeding, where the claim could be an avenue of reconciliation for Indigenous persons: Patrick v. British Columbia, 2023 BCSC 2147 and Servatius v. Alberni School District No. 70, 2022 BCCA 421; Gitxaala v. British Columbia (Chief Gold Commissioner), 2025 BCCA 430 (Gitxaala CA). [93] Patrick involved a sequencing application within a proposed class proceeding seeking damages for alleged systemic discrimination in the provision of health care services to Indigenous people in British Columbia hospitals. Justice Kirchner held that reconciliation mandates a need for "cautious management of novel litigation that is grounded in reconciliation to ensure Indigenous people have the full opportunity to pursue legitimate claim", but also held doing so "does not immunize a claim ... from an application to strike": paras. 39-40. [94] In Servatius, an evangelical Christian parent sought a declaration that her and her children's religious freedom protected by the Charter had been infringed when a Nuu-chah-nulth Elder visited a Port Alberni public elementary school and demonstrated the practice of smudging and a prayer was said in the course of an Indigenous dance that was performed at a school assembly, both as part of an effort to acquaint the school's students with Indigenous culture and to promote a sense of belonging in Indigenous children. In upholding the dismissal of what was effectively the parent's application for judicial review of the discretionary decisions of employees of the Ministry of Education, made under the School Act, R.S.B.C. 1996, c. 412, and its regulations, to allow two guests into the school to demonstrate aspects of Indigenous culture, Justice Griffin, writing for the majority noted the courts in B.C. have not decided on the extent to which the UN Declaration creates substantive rights under s. 25 of the Charter [Aboriginal rights and freedoms not affected by Charter]: para. 46. Justice Griffin also observed that reconciliation encompasses the goal of forging a mutually respectful path forward and noted that there has been "great pressure on all of Canada's institutions to take concrete steps to address the harms and prejudices of the past": para. 105. [95] In Gitxaala CA, Justice Dickson, writing for a majority of the Division, held that the legislative affirmation in the BC Declaration Act "amounts to a binding Crown promise [to] act as though the existing legal rights, obligations, principles, minimum standards and goals expressed in [the UN Declaration] in specific relation to Indigenous peoples apply to British Columbia laws, including the common law" and that "properly interpreted, s. 3 [measures to align laws with Declaration] of the BC Declaration Act "does not preclude judicial adjudication of whether a British Columbia law is consistent with [the BC Declaration Act] or oust court jurisdiction to do so when asked by an Indigenous litigant to resolve a dispute with the Crown on an allegedly duty-triggering inconsistency": at paras. 161 and 175. [96] The Province argues that the BC Declaration Act does not limit the Province's Crown immunity for events that occurred before 1974. The Province argues that although the BC Declaration Act incorporates the UN Declaration into the positive law of British Columbia with immediate legal effect, that does not mean that s. 2(a) of the BC Declaration Act [one of the purposes of the BC Declaration, being to affirm the application of the UN Declaration to the laws of British Columbia] creates or confers new substantive legal rights or obligations arising from the UN Declaration or creates causes of action against the Province for events that occurred before 1974: Gitxaala CA at paras. 7, 144. The Province argues the Court of Appeal has affirmed that the BC Declaration Act provides an interpretive lens through which British Columbia laws must be viewed and the minimum standards against which they are to be measured: Gitxaala CA at para. 7. [97] The Province acknowledges that if the prospective nature of the CPA is found to be inconsistent with s. 8(2) of the UN Declaration, which the Province does not concede and, even assuming it raises a justiciable question, which is also not a matter for me to determine on this certification application, that it is accurate that the BC Declaration requires Cabinet, in consultation and cooperation with Indigenous peoples, to develop and table a bill that, if enacted by the Legislature, would amend the CPA to make it consistent with the UN Declaration. Even if there are inconsistencies between the CPA and the UN Declaration, the Province argues such inconsistencies are not actionable for damages given that the BC Declaration does not create new rights, although a court could make a declaration of inconsistency. [98] The plaintiffs' position amounts to an argument that the CPA, being valid provincial legislation of general application, does not apply to equitable and Tort Claims by Indigenous persons. This is a novel position which may fail. I note for example the plaintiffs did not address how such an argument would be reconciled with s. 88 of the Indian Act, R.S.C., 1985, c. I-5, which provides that, subject to certain exceptions, "all laws of general application from time to time in force in any province are applicable to and in respect of Indians in the province". [99] However, the state of the law in this area is rapidly developing and I conclude it is not plain and obvious the Tort Claims of the Indigenous Subclass members against the Province and Canada are precluded by Crown immunity. 3. The claims against Dr. MacKenzie and vicarious liability [100] At the hearing, the plaintiffs clarified that the claim against Dr. MacKenzie is limited to battery, (medical) negligence, and breach of fiduciary duty. [101] In his response to the SANOCC, Dr. MacKenzie pleads he is a retired physician and that he was "employed by and / or contracted to" provide medical services to some students at the School between 1960 and 1973. He pleads that he only provided medical care at the School on Tuesday mornings each week for approximately one to two hours and only provided medical services to students based on their own medical complaints and requests for medical care, as coordinated and organized by a nurse at the School. He pleads that he was not responsible for, aware of, or involved in, performing any routine genital examinations or swabs for venereal disease for new students or students who had been absent without leave, or any sterilization procedures, and that if such examinations or procedures acts were undertaken at the School they were performed by someone else. a) Battery [102] Battery involves the intentional infliction of unlawful force on another person: Norberg v. Wynrib, [1992] 2 S.C.R. 226 at 246, 1992 CanLII 65 (SCC). Express consent is an affirmative defence to battery, which means a defendant bears the onus of proving it on a balance of probabilities. Lack of consent is not something a plaintiff must prove to establish their claim, unlike in a criminal trial for sexual assault, where the onus is on the Crown to prove a lack of consent beyond a reasonable doubt: Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24 at paras. 1, 2, 6, 8, and 22. There is no separate tort of "sexual" battery: Non-Marine Underwriters, Lloyd's of London v. Scalera, 2000 SCC 24 at para. 27. While in a particular case the force applied may be sexual in nature, sexual gratification or force of a sexual nature is not an essential element of the tort of battery. [103] Dr. MacKenzie acknowledges the SANOCC pleads a complete cause of action in battery with respect to Ms. Wesley but denies a complete cause of action has been pled with respect to Dr. Steeves. I disagree. The SANOCC alleges "frequent sexual abuse" of Dr. Steeves by Dr. MacKenzie. This is not a "bare allegation" or "conclusory legal statement" that "rests on assumption and speculation" or a "vague statement" or a generality "akin to personal opinion" as described by the cases relied on by Dr. MacKenzie: Situmorang v. Google LLC, 2022 BCSC 2052 at para. 22, rev'd other grounds 2024 BCCA 9; Banman v. Ontario, 2023 ONSC 6187 (Banman Certification) at para. 205. The SANOCC must be read and interpreted as a whole, and when that is done it is clear the "sexual abuse" alleged is the forced genital examinations. Again, in her affidavit Dr. Steeves deposes the "school doctor" performed a "medical exam" on her which included a gynecological procedure to which she did not consent and which she describes as "horrific". [104] The tort of battery of both plaintiffs and the Class by Dr. MacKenzie is properly pled. b) (Medical) negligence [105] Again, Dr. MacKenzie acknowledges the SANOCC pleads a complete cause of action in negligence with respect to Ms. Wesley but denies, for the same reasons he advances with respect to the tort of battery, that a complete cause of action has been pled with respect to Dr. Steeves. Again, I disagree for the same reasons I have already noted. [106] The tort of negligence by Dr. MacKenzie in relation to both plaintiffs and the Class is properly pled. c) Breach of fiduciary duty [107] Dr. MacKenzie argues it is plain and obvious the plaintiffs have not pled the material facts to support a claim in breach of fiduciary duty because their cause of action is based on an allegation of sexual abuse but the plaintiffs "do not allege Dr. MacKenzie engaged in overtly sexual acts" with the Class. I disagree. As I interpret the SANOCC, the breach of fiduciary duty claim arises from the same factual allegations as the battery - namely, that Dr. MacKenzie performed genital examinations on the Class without their consent - as well as an allegation that he (and all the defendants) knew or ought to have known that abuse, violence, neglect and misconduct at the School posed a serious risk of foreseeable harm to the Class, and that he had a duty to but failed to take steps to protect the Class from physical abuse they suffered at the hands of others at the School, when he knew or ought to have known it was occurring. Just as the sexual gratification is not an essential element of the tort of battery, it is not an essential element to establish a breach of a fiduciary duty. [108] The SANOCC properly pleads breaches by Dr. MacKenzie of fiduciary duties he owed to the Class. d) Vicarious liability of the Province and Canada [109] The doctrine of vicarious liability imputes liability to the employer or principal of a tortfeasor, not on the basis of the fault of the employer or principal, but on the ground that as the person responsible for the activity or enterprise in question, the employer or principal should be held responsible for loss to third parties that result from the activity or enterprise: John Doe v. Bennett, 2004 SCC 17 (Bennett) at para. 17. Vicarious liability is based on the idea that the person who puts a risky enterprise into the community may fairly be held responsible when those risks emerge and cause loss or injury to members of the public: Bennett at para. 20. The concept serves the goal of effective compensation and deterrence, since the hope is that holding the employer or principal liable will encourage such persons to take steps to reduce the risk of harm in the future: Bennett at para. 20. [110] In the context of employer/employee relationships, the Supreme Court of Canada held in Bazley v. Curry, [1999] 2 S.C.R. 534 at para. 10, 1999 CanLII 692 (SCC), that determination of whether an employer will be vicariously liable for the acts of its employees is to be determined based on the Salmond test, which holds employers responsible for: 1) employees' acts authorized by the employer; and 2) unauthorized acts that are so connected with authorized acts that they may be regarded as modes of doing an authorized act. See also Bennett at para. 20. [111] In the context of intentional torts, such as battery, determining whether there is a sufficient connection involved consideration of factors including: (a) the opportunity that the enterprise afforded the employee to abuse his or her power; (b) the extent to which the wrongful act may have furthered the employer's aims (and hence be more likely to have been committed by the employee); (c) the extent to which the wrongful act was related to friction, confrontation or intimacy inherent in the employer's enterprise; (d) the extent of power conferred on the employee in relation to the victim; (e) the vulnerability of potential victims to wrongful exercise of the employee's power. Bennett at para. 21, citing Bazley at para. 41. [112] The SANOCC pleads facts of an employment relationship that could sustain the vicarious liability of the Province for those causes of action advanced against the Doe defendants and Dr. MacKenzie that I have concluded are not bound to fail. [113] However, the SANOCC does not plead a relationship between Canada and either the Doe defendants or Dr. MacKenzie that could sustain Canada's vicarious liability. The plaintiffs confirmed at the hearing they were not seeking to have this branch of liability certified but the SANOCC has not been amended to evidence that that intention. [114] Canada asks that the vicarious liability claim be struck from the SANOCC. It is plain and obvious any claim that Canada was vicariously liable for actions of the Doe defendants or Dr. MacKenzie is bound to fail. Those aspects of the SANOCC are struck. 4. Limitation periods [115] All of the defendants make arguments touching on limitation issues. [116] Our Court of Appeal has held that limitation issues are a matter that relates to the merits of a claim and generally should not be considered at the certification stage absent exceptional circumstances, which the plaintiffs say are absent here: Godfrey v. Sony Corporation, 2017 BCCA 302 at paras. 55, 67-68, 100, aff'd 2019 SCC 42. [117] Nonetheless, Canada argues it is plain and obvious the misfeasance in public office claim is bound to fail because it is barred by the Limitation Act, S.B.C. 2012, c. 13 ("2012 Act"). Canada argues the misfeasance in public office claim is barred by the ultimate limitation period as a "pre-existing claim" for which a former limitation period applied before the "effective date" (being the day s. 30 of the 2012 Act came into force, which was June 1, 2013) and that former limitation period under the Limitation Act, R.S.B.C. 1996, c. 266 ("1996 Act"), expired before the effective date: 2012 Act, ss 30(1), 30(2), 30(4); 1996 Act, s. 8(1)(c). Under the 1996 Act, no action could be brought after the expiration of 30 years "from the date on which the right to do so arose", that date being the date when all elements of a cause of action exist, including the date when the damage occurs, irrespective of a plaintiff's state of knowledge: K & L Land Partnership v. Canada (Attorney General), 2014 BCSC 1701 at para. 24, citing Kennedy v. Beckmann, 2008 BCSC 323 at para. 25. Canada observes that the postponement provisions were explicitly excluded from the ultimate limitation period under the 1996 Act and the outer limit for damage claims is 30 years from the date that damage occurred: Armstrong v. West Vancouver (District of), 2003 BCCA 73 at para. 16. [118] The Province advances a similar argument as a basis to limit the Class definition to individuals born on or after June 1, 1964. The Province argues that the transitional provision in the 2012 Act, the 30-year ultimate limitation period in the 1996 Act, and the age of majority, mean it is plain and obvious claims against the Province by a person born on or before May 31, 1964 are time-barred. The Province notes that in Richard, the Court held that the class definition should begin on a date that reflected the Province's Crown immunity prior to August 1, 1974, and argues a similar approach which accounts for what it says is a clear expiry of the ultimate limitation period in this case. [119] Dr. MacKenzie also argues that, except for the sexual abuse claim, the claims against him are barred by application of both the 2012 Act and the 30 year ultimate limitation period under the 1996 Act. Dr. MacKenzie argues the core of the plaintiffs' claims against him relate to physical, psychological and cultural abuse and are not integrally linked to allegations of sexual abuse. He submits the determination of whether the ultimate limitation period has expired is not bound up in the facts, and as such the policy reasons for the general rule that limitation questions are addressed as part of the merits and not certification do not apply. [120] Dr. MacKenzie submits the pleaded facts of this claim are analogous to those in other cases where courts have considered limitation defences at the certification stage: Singh v. RBC Insurance Agency Ltd., 2023 ONSC 1439 at para. 202 (a proposed class action alleging a failure by the defendants to pay vacation and public holiday pay to certain insurance advisors in which Justice Glustein held that the Court ought not permit a class action to proceed against a defendant when, if the pleadings are taken as true, the claim is statute-barred); Daniels v. Canada (Attorney General), 2003 SKQB 58 at para. 31 (where, in the context of a proposed class action by Indigenous war veterans alleging they had been treated differently than non-Indigenous veterans and their benefits improperly administered, Justice McLellan held that if the claims of all the plaintiffs in a proposed class action are statute barred, that issue ought to be decided at the certification stage since "it would make no sense if it were otherwise"); Coulson v. Citigroup Global Markets Inc., 2010 ONSC 1596 and 2010 ONSC 2553, aff'd 2012 ONCA 108 (where a proposed class proceeding of a commercial claim involving a corporate public offering of common shares was dismissed because the claim was statute barred under applicable limitation legislation). [121] First, I disagree with Dr. MacKenzie that the core of the plaintiffs' claims against him relate to physical, psychological and cultural abuse and are not integrally linked to allegations of sexual abuse. The focus of the claim against Dr. MacKenzie is directly connected to allegations of unnecessary, forced, violent genital examinations he conducted on the girls committed at the School during his tenure which would arguably, if not certainly, fall within the category of misconduct of a sexual nature or a cause of action based on sexual assault. [122] I also disagree with the plaintiffs' argument that they have alleged willful concealment by the Province and that such allegations must be taken as true on the certification application. In my view, the plaintiffs have not pled facts of wilful concealment which must be presumed to be true, but rather have pled [at paras. 78(d), 79(e), 80(g) and 81] bald conclusions that the Province wilfully concealed various actions. Further, as I read the SANOCC, that pleading only refers to the breach of trust claim, which the plaintiffs advised at the hearing they were no longer pursuing. [123] Considering a limitation defence, where it is clear, is consistent with courts taking a rigorous approach to certification applications and not merely rubber stamping a claim that is ultimately doomed to fail and passing the buck to the next judicial presider to make that call. However, as all the defendants acknowledge, there is no limitation period for a claim relating to misconduct of a sexual nature, a claim relating to sexual assault, or a claim relating to assault or battery if it occurred while the claimant was a minor: 2012 Act, ss. 3(1)(i),(k) and (k), 30(5); see also 1996 Act, ss. 3(4)(k). The words "relating to" are capable of a very broad meaning: Nowegijick v. The Queen et al, [1983] 1 S.C.R. 29 at p. 39, 1983 CanLII 18 (SCC); Northern Thunderbird Air Ltd. v. Royal Oak & Kemess Mines Inc., 2002 BCCA 58 at para. 40. The extensive overlap between the various causes of action arising from common facts of alleged sexual abuse, and the fact that limitation periods do not apply to some of the plaintiffs' Tort Claims, lead me to conclude that the limitation issues are more suitably addressed at the merits stage, not certification. [124] It is not plain and obvious the plaintiffs' claims are statute barred under the 2012 Act. 5. Conclusion on cause of action analysis [125] For the reasons set out above, I conclude: 1. It is plain and obvious the plaintiffs' unjust enrichment claims against the Province and Canada are bound to fail because the SANOCC does not establish this as a cause of action; 2. It is plain and obvious the remaining Tort Claims advanced by the Class, except the Indigenous Subclass, against the Province are bound to fail because of Crown immunity; 3. It is not plain and obvious the remaining Tort Claims advanced by the Indigenous Subclass against the Province are bound to fail; 4. It is plain and obvious the remaining Tort Claims that arose before May 14, 1953, advanced by the Class, except the Indigenous Subclass, against Canada are bound to fail because of Crown immunity; 5. It is not plain and obvious the remaining Tort Claims that arose before May 14, 1953, advanced by the Indigenous Subclass against Canada are bound to fail; 6. It is not plain and obvious the claims advanced by the Class against Dr. MacKenzie are bound to fail; 7. It is plain and obvious the vicarious liability claims advanced by the Class, except the Indigenous Subclass, against the Province for the actions of Dr. MacKenzie are bound to fail; 8. It is plain and obvious the vicarious liability claims advanced by the Class against Canada for the actions of Dr. MacKenzie are bound to fail; 9. It is not plain and obvious the Indigenous Claims advanced by the Indigenous Subclass against the Province and Canada are bound to fail. B. Is there an identifiable class of two or more persons? [126] The proposed Class and Indigenous Subclass are defined with reference to objective criteria that do not depend on the merits of the claim. However, the defendants raise other objections with respect to this certification criterion. For the reasons that follow, I reject those arguments. 1. There is some evidence that there is a Class of two or more persons who would have claims as advanced in the SANOCC [127] The Province does not dispute there is some evidence there is a Class of two or more persons who would have claims as advanced in the SANOCC as against them, beyond the limitations of the SANOCC they put forward that I have already addressed. However, Canada and Dr. MacKenzie argue the plaintiffs' evidence has failed to establish there are at least two or more individuals with similar claims against them. Canada argues that because there is no basis in fact to support the claims advanced against Canada in the SANOCC, in consequence there is no basis in fact to support a finding that there is a Class, or a Subclass, of two or more persons who would have claims as advanced against Canada. Dr. MacKenzie points to what he says are specific deficiencies in the plaintiffs' evidence. [128] I disagree. First, as Justice Groberman held for a unanimous division in Douez v. Facebook, Inc., 2018 BCCA 186 at para. 53, leave to appeal to SCC ref'd, 38233 (28 March 2019), (Douez CA) "it is not generally necessary for a representative plaintiff to specifically demonstrate, through affidavit evidence, that a second person has a claim" since the "existence of more than one claim can be apparent from the very nature of the claim being advanced"; see also Keatley Surveying at para. 70. [129] With respect to the claims advanced as against Dr. MacKenzie, Dr. Steeves deposes to a forced genital examination by the male school doctor and Ms. Wesley deposes to multiple forced genital examinations by Dr. MacKenzie, including following returns after escapes in accordance with guidelines established by the School. The evidence is that while located on Cassiar Street, the School was surrounded by a tall fence topped with barbed wire, which did not seem to deter attempts at escape. Despite that barbed wire, escapes were so prevalent that in 1956 (which I recognize was before Dr. MacKenzie deposes he worked at the School) it was reported that out of a total of 132 girls committed at the School, 77 attempted escape. The evidence also reveals that the number of escapes did not decrease when the School moved to Burnaby, which would have been during Dr. MacKenzie's tenure according to his evidence. 2. The Class is not overbroad [130] Dr. MacKenzie argues the Class is overbroad because it includes people who attended the School approximately 48 years before Dr. MacKenzie began working there as a doctor, people who attended after he stopped working there, and people who he did not treat. As a result, he submits there would be a large cohort of Class members with no claim against him and that the Class is therefore overbroad and should not be certified: Harrison v. Afexa Life Sciences Inc., 2016 BCSC 2123 (Harrison SC) at paras. 53-54, aff'd 2018 BCCA 165, leave to appeal to SCC ref'd, 38196 (7 February 2019) dismissed 2019 CanLII 7957. [131] Harrison SC was a proposed class action where "the essential complaint [was] that the defendants misrepresented that Cold-Fx provide[d] short term relief of cold and flu symptoms": para. 55. It is distinguishable from this case because Justice Dillon concluded there was "no evidential link between any member of the proposed class and a complaint based upon the alleged misrepresentations": para. 55. Dr. MacKenzie does not suggest there are members of the Class who would not have a claim against any of the defendants. The CPA has never required all Class members be identically situated as against all defendants: Vivendi at para. 76-78; Rumley SCC at para. 32. The fact that some Class members may not have a claim as against him does not make the Class overbroad. Where the Class includes a subclass whose members have claims that raise common issues not shared by all Class members, the Court must not refuse to certify a proceeding as a class proceeding merely on that basis: CPA, s. 7(e). The CPA provides ample flexibility to deal with limited differentiation amongst the class members as and if such differentiation becomes evident as litigation proceeds: Rumley SCC at para. 32. 3. There are no conflicts between the Class [132] The Province says there are conflicts between members of the Class and that class members cannot have opposing interests: Ewert CA at para. 25; R v. Nixon, [2002] OJ No. 1009 (SCJ), at paras. 7-8, 21 C.P.C.(5th) 269 (O.N.S.C.). The Province argues that because the SANOCC pleads facts, and the plaintiffs' evidence reveals, that the systemic problems associated with the operation of the School created opportunity for some Class members to be victimized by other Class members, making, the Province argues, the abusers within the Class liable to the Province for contribution and indemnity. [133] I disagree. There is no conflict between members of the Class on the common issues. The proposed common issues do not involve individual incidents of assault or abuse of a member of the Class by another Class member, and it is not necessary to identify any such wrongdoers in the common issues phase: Ewert v. Canada (Attorney General), 2016 BCSC 962 (Ewert SC) at para. 79. Instead, like in Johnson v. Ontario, 2016 ONSC 5314 at para. 83, the focus of the common issues is on the systemic manner in which the Province and Canada operated the School, within their respective spheres of involvement, including Dr. MacKenzie's role in those operations. 4. Conclusion on an identifiable class of two or more [133(a)] Given the evidence about the number of girls admitted or committed to the School, and the over-representation of Indigenous girls at the School, and for the reasons already given, I am satisfied there is some evidence of both an identifiable Class and an identifiable Indigenous Subclass of two or more persons who would have claims against all of the defendants, including Canada and Dr. MacKenzie. C. Do the claims raise common issues? [134] At the hearing, the plaintiffs abandoned several of the common issues they had proposed in the certification application and agreed with the framing proposed by the Province with respect to others. [135] The Province acknowledges, reasonably in my view, that the systemic negligence and systemic breach of fiduciary duty claims against the Province, if not bound to fail, could give rise to some common issues about duty of care, standard of care, and punitive damages. However, the Province submits the proposed common questions with respect to constitutional duties owed to the Indigenous Subclass (and breached) by the Province and Canada are disconnected from the pleadings because such duties are not pled in the SANOCC. The Province further argues the proposed common question involving whether the Province or Canada breached Aboriginal rights is not common because, as it argued in the cause of action analysis, it involves individualized questions for each member of the Indigenous Subclass: Van der Peet at para. 46. [136] Canada submits that there is no basis in fact that Canada operated or managed the School, and that a common issue should not be certified where there is no evidence of it: O'Connor v Canadian Pacific Railway Limited, 2023 BCSC 1371 at para. 263; Aksidan v. Canada (Attorney General), 2008 BCCA 43 at paras. 14 and 16. However, Canada acknowledges there is evidence demonstrating Canada's involvement in the social welfare of Indigenous girls in British Columbia, including in relation to discharge planning at the School. As a consequence, Canada argues there is no basis in fact to support a finding that the claims of the Class raise common issues against Canada. [137] Aksidan was an appeal from a trial judgment dismissing the appellants' claims against Canada for damages for sexual assault by a teacher employed at a B.C. elementary school, advanced on the basis of the appellants' Indigenous status and the duties of Canada under the Indian Act. As the appeal was from a trial judgment, whether viva voce or summary is unclear, I do not find it particularly helpful in considering the procedural question of whether there is some basis in fact that the claims of Class members raise common issues. [138] Dr. MacKenzie argues that in relation to negligence, the proposed common issues only relate to the administration and management of the School and keeping students safe from abuse while at the School, not in respect to any medical negligence claim against him. I do not understand that the plaintiffs are excluding medical negligence from the proposed common question involving duty of care. The claim against Dr. MacKenzie is based in his relationship to and actions towards the Class, including his alleged genital examinations of the Class, carried out as part of the operation of the School and in furtherance of School policy. Further, contrary to Dr. MacKenzie's submission, the plaintiffs are not alleging Dr. MacKenzie was a fiduciary to them for all purposes: McInerney v. MacDonald, [1992] 2 SCR 138 at para. 149, 1992 CanLII 57 (SCC),. Their claims are founded on the nature of their relationship to Dr. MacKenzie while they were detained at the School, and the duty and standard of care that arose in the context of that particular relationship. Likewise the breach of fiduciary duty claim. Whether the applicable standard of care included an obligation to protect the Class from abuse, by him, and by others of which he was or ought to have been aware, is a common question and its determination, in the negative or affirmative, will advance the litigation. [139] Dr. MacKenzie also argues "the case law is clear that issues related to individual claims of battery, medical negligence, and sexual abuse are inherently individual and are not amendable to resolution on a class-wide basis". The Province supports that position. As support for that position Dr. MacKenzie cites Nette v. Stiles, 2010 ABQB 14, Choyce v. Gaum, 2023 NSSC 177, Massie v Provincial Health Services Authority, 2023 BCSC 1275, Fehringer v. Sun Media Corp., 27 C.P.C. (5th) 155, 2002 CanLII 29073 (ON SC), Doucet v. The Royal Winnipeg Ballet, 2018 ONSC 4008, and Banman Certification. [140] The plaintiffs take the position they have proposed common issues which reflect those certified in the jurisprudence, which are grounded by the facts in the record before the Court. They submit that the allegations of vicarious liability are appropriate as common issues because the conduct of Dr. Mackenzie arose in the scope of his employment and is alleged to have been systemic. Similarly, the plaintiffs submit that the claims against Canada are common as they relate to protecting the culture and language of the Indigenous Subclass members and the safety of all Class members: Brown; Gottfriedson; Rumley SCC. The plaintiffs submit that certification is not the appropriate stage for resolving the factual dispute alleged by Dr. Mackenzie, namely that the genital examinations were individually determined, and not systemic, non-consensual and arbitrary, as the plaintiffs allege. [141] In Nette, the plaintiff alleged injuries caused by the defendant, a chiropractor, and sought to certify a class proceeding against him, as a representative defendant, and the Alberta College and Association of Chiropractors (ACAC). Certification was opposed on the basis that it was in essence multiple chiropractic malpractice claims under the umbrella of a single class proceeding. The action was not certified as a class proceeding on the basis that causation and consent issues were inherently individualized and variable and the proposed common issues in that case did not have a substantial common ingredient: at paras. 86-89. The proposed common issues in Nette (e.g. was scientific evidence, or lack of it, relevant to ACAC's regulation of chiropractic and the establishment the standards of practice of chiropractors? What information did the ACAC and the Class Defendants have regarding the clinical relevance of vertebral misalignment / subluxation, and the efficacy of adjustments in addressing this entity in patients?) reflected that the case was in reality an attack on the practice of chiropractic medicine, and are distinguishable from the focussed, and legally relevant, common issues proposed in this case. [142] Choyce was a proposed class action alleging damages caused by assault, battery, and negligence, of children by a dentist's behavioural management techniques during dental visits. The chambers judge held it was "uncontroverted" that a professional such as the defendant in that case owed a duty of care to patients that he treated: para. 45. At the hearing, Dr. MacKenzie acknowledged he would have owed a duty of care to any of the girls committed to the School who were his patients, and that therefore a determination of that common issue would not be necessary. However, in his response to the SANOCC, he denies he owed any duty of care to the plaintiff or the proposed class. Determination of that question would advance the litigation. Beyond the duty of care question however, the proposed questions in Choyce (e.g. the standard for informed consent, the range of damages for pain and suffering and punitive damages) are inherently individualized and in that sense differ significantly from the common issues proposed in this case. [143] Massie was a proposed class action against an alleged unlicensed nurse who directly or indirectly provided various sorts of nursing care to approximately 1,150 patients. Again, the proposed questions (e.g. whether the health authority was liable in negligence, whether the treatments (which were wide ranging) constituted the tort of battery, what damages were suffered by class members) would have required a determination of causation and other individualized investigations, and in that sense also differ significantly from the questions that have been proposed in this case. I observe however, that in Massie, Justice Stephens was of the view that there was "some basis in fact that the questions of the existence of a duty of care, and breach of the standard of care (in the health authority's hiring of the individual) could likely be properly determined separately on a common basis": at para. 100. Those questions are more analogous to the proposed common issues in this case. [144] Fehringer was a proposed class action arising out of the allegations that a photographer employed by the corporate media defendants and assigned to photograph women who wished to be selected as Sunshine Girls for a local newspaper, had forced the proposed class to pose nude or topless and subjected them to lewd comments and other inappropriate conduct. Again, the proposed questions (e.g. whether the defendants were negligent) would have necessitated individual determinations including with respect to causation and damage: at paras. 15,17. [145] Doucet was a proposed class action by a student of the ballet defendant for alleged civil wrongs arising out of an employee's photographing of the students in private settings. While the proposed common questions that involved a determination of liability were found not to be common questions, the Court held that questions similar to those proposed in this case did raise common issues (e.g. whether Mr. Monk owe a duty of care to the Student Class, the applicable standard of care, whether Mr. Monk owed a fiduciary duty to the members of the Student Class, would the Royal Winnipeg Ballet be vicariously liable for the wrongful conduct of its employee, Mr. Monk). [146] Banman Certification was a proposed class action involving the psychiatric treatment of the class members when they were patients detained in the forensic psychiatric unit of St. Thomas Psychiatric Hospital. The claim advanced causes of action in negligence, breach of fiduciary duty and vicarious liability. Justice Perrell concluded that several questions related to the breach of fiduciary duty, negligence, and vicarious liability, were common issues because, at a systemic level, there was commonality, and the resolution of the common issues would suitably advance the class members' causes of action: at para. 288. [147] The plaintiffs have proposed common issues about policies and practices in place at the School. Such questions can be certified: T.L. v. Alberta (Director of Child Welfare), 2006 ABQB 104 at para. 110 (first attempt to certify - dismissed by Slatter J.) (TL #1); T.L. v. Alberta (Child, Youth and Family Enhancement Act, Director), 2008 ABQB 114, para. 112 (d)(ii) (second attempt to certify - granted by Thomas J.)(TL #2); aff'd 2009 ABCA 182 - a class proceeding alleging the class suffered personal injuries that would have entitled them to damages or to make claims under the victims of crime legislation for which the defendants should have pursued claims on their behalf and did not do so. At certification, one of the common issues was what policies, practices and systems the defendants had in place during the class period relating to the prosecution of civil claims on behalf of children in care. However, such common issues must be tailored to the claims being advanced to make them workable and to avoid the risk of a general and far-reaching inquiry. [148] I find there is some evidence that claims of Class members raise common issues, the determination of which will advance the litigation in a material way for the benefit of the Class. D. Is a class proceeding the preferable procedure? [149] The available options identified by the parties for the claims of the proposed Class are limited to a class proceeding or individual actions. [150] Dr. MacKenzie submits the claim against him is so individualized that a class proceeding is not the preferable procedure. Dr. MacKenzie's position on this point is grounded in part on his view that the plaintiffs' claims do not give rise to common issues, which I have rejected. Dr. MacKenzie also argues the claims against him are analytically and factually distinct from the broader systemic claims against the Province and Canada. However, there is significant overlap between the claims against Dr. MacKenzie and the other defendants. His actions and omissions are alleged to be in furtherance of alleged School policies and the operation of the School. Dr. Mackenzie also says the claim as against him is too individualized, shares no common factual features as between members of the Class, and will inevitably break the proceeding into individual proceedings for findings of fact and law. The need for determinations of causation and injury with respect to individual plaintiffs is not a bar to certification. As the plaintiffs point out, the same could be said about many actions certified as class proceedings where systemic negligence leading to injury has been alleged: Rumley SCC, paras. 30, 36-38; TL #1 at paras. 133, 136; TL #2. [151] Canada's view is that there are no common issues as against Canada (because there are no causes of action) and that therefore a class proceeding is not the preferable procedure: Finkel at para. 25. Again, I have already rejected that view. Canada also argues that because, in its view, the plaintiffs do not have standing to advance the Indigenous Claims, a class proceeding is not the appropriate procedure for advancing claims for collective Aboriginal rights, but rather a representative action, brought by the collective that is the rights holder, is the correct form for such claims: Kelly v. Canada (Attorney General), 2013 ONSC 1220 at para. 107-110, rev'd on other grounds 2014 ONCA 92; Kwicksutaineuk / Ah-Kwa-Mish First Nation v. Canada (Attorney General), 2012 BCCA 193 at paras. 12 (majority judgment of Garson JA) and 107 (concurring judgment of Smith JA); Gill v. Canada, 2005 FC 192 at para. 13; Soldier v. Attorney General of Canada; Bone v. Attorney General of Canada, 2006 MBQB 50 at paras. 71, 73-75, aff'd 2009 MBCA 12. [152] Canada argues the Court of Appeal's decision in Malii v. British Columbia, 2024 BCCA 406 (Malii) supports and provides further rationale for its position that a class proceeding is not the preferable procedure for the just, practical, or efficient resolution of the plaintiffs' proposed Aboriginal rights claims. In Malii the Court of Appeal observed that claims involving Aboriginal rights are some of the most difficult and complex to litigate, and that litigation can sometimes be extraordinarily expensive in both economic and human terms: Malii at paras. 95 and 96. Justice Griffin writing for the Division commented on the risk that "when there are too many issues in a single proceeding, it becomes unwieldy and risks an unsatisfactory outcome for all participants, including the courts": para. 98. The concerns about complexity and the attendant risks can be compounded where multiple Indigenous collectives are involved: Malii at paras. 99-101. [153] Canada argues Malii supports Canada's position that a class proceeding would be an unfair, inefficient, and unmanageable method of advancing the proposed Aboriginal rights claims and a class proceeding would involve excessive complexity and undue delay of an Aboriginal rights claim because they involve more than one Indigenous collectivity, and that such a procedure for these claims will diminish rather than promote meaningful access to justice. [154] The Province argues that Malii confirms "generic" Aboriginal rights are just as complex to adjudicate as other Aboriginal rights. The Province submits that even though the plaintiffs' Aboriginal rights claims will not require the kinds of historic use and occupation of land evidence that are tendered in Aboriginal title cases, they will nonetheless inevitably require evidence about the specific Indigenous cultural practices (200 years ago) of each of the collectives from which Indigenous Subclass members are descended before contact. [155] The Province concedes that "not every one of the pleaded rights will require distinct evidence from each of the various Indigenous collectives", and that as an "example, the right pleaded in para. 55A(xii)(a) to an 'Indigenous language different than that of the European' would likely require little if any evidence" since "it can be assumed that every Indigenous collective spoke a language or languages at the time of contact". Nonetheless the Province argues "that assumption ... does not alleviate the procedural problem that each class member would need to individually prove that they spoke an Indigenous language before coming to the School and their concomitant language right was breached". The Province says that other Aboriginal claims pled would require evidence specific to each collective, such as the right pled in para. 55A(xii)(e) to the "benefit and expectation of a large extended family or clan system [ ] where [ ] there is a communal responsibility for the care and rearing of the child within the extended family and clan". The Province argues that evidence about child rearing practices (200 years ago) in each of the collectives from which Indigenous Subclass members are descended would be required. [156] The positions of both Canada and the Province with respect to the class proceedings not being the preferable procedure for the plaintiffs' Aboriginal claims are tethered to the position that the plaintiffs' claims are "multiple Indigenous collectives' claims" each of which would require collective specific evidence of the nature and content of the right. [157] The Malii case involved a claim by Gitanyow Nation, and a potential competing claim by Tsetsaut / Skii km Lax Ha Nation, of Aboriginal title. As Justice Griffin noted, one possible interpretation of the law is that a declaration of Aboriginal title by an Indigenous group over a particular territory necessarily excludes any other Indigenous group from holding Aboriginal title over the same area: at para. 68. [158] The nature of the plaintiffs' Aboriginal claims are qualitatively different in my view. While members of the Indigenous Subclass may have historical connections to multiple Indigenous collectives, I do not understand the nature of these plaintiffs claims to raise the exclusivity / overlap tension or paradox that Justice Griffin described in Malii as potentially arising in cases of competing or intersecting Aboriginal title claims. [159] I agree the plaintiffs' Aboriginal rights claims are novel and may present various challenges and complexities in their determination on the merits. But in my view, that risk may provide support for the class proceeding being the preferred procedure. These complexities may be more manageable with case management, which accompanies class proceedings but is generally rare in individual civil actions. [160] I have already concluded that it is not plain and obvious the plaintiffs' do not have standing to advance the Indigenous Claims. If the plaintiffs are unsuccessful advancing their generic rights theory which underpins the Indigenous Claims, having that issue determined in a single proceeding is much preferable than having it raised in numerous ones with the risk of inconsistent determinations. [161] Canada and the Province also argue the scope and complexity of the plaintiffs' claim, which covers a significant period of time, complex government operations, support the conclusion that a class proceeding is not the preferable procedure. They submit individual proceedings would better serve members of the Class because the scope of the proposed class proceeding renders it unmanageable. The defendants point to several cases where similar complexities have led courts to question the utility or benefit to plaintiffs post certification: Rumley v. B.C. (Province of), 2003 BCSC 234 at paras. 30, 75 (Rumley SC 2003); Carcillo v. Canadian Hockey League, 2023 ONSC 886 (Carcillo SC) at para. 410, aff'd 2025 ONCA 652 (Carcillo CA) at paras. 4, 5, 6, 16, 50-74. [162] The Province points to comments made by Justice Paul Perrell, now retired but well known for his writing in relation to class proceedings, characterizing systemic claims as "a penny wise, pound foolish way to secure access to justice because it will make proof of the individual members' claims more difficult" that do not facilitate but rather impede access to justice for the individual class members: Cavanaugh v. Grenville Christian College, 2012 ONSC 2995 (Cavanagh SC) at paras. 155, 157-160. Justice Perrell held that the claim against the Incorporated Synod of the Diocese of Ontario did not reveal a cause of action as framed and dismissed the claim as against it and concluded that a class proceeding was not the preferable procedure with respect to the remaining defendants. [163] However, the Ontario Divisional Court allowed the appeal brought by the plaintiffs with respect to the dismissal of the application in favour of the defendants other than the Diocese: 2014 ONSC 290 (Cavanagh Div Ct) at para. 19. Writing for the Division, Justice Rady concluded Justice Perrell had "made a palpable and overriding error in the analysis and decision as to the preferable procedure" and had committed "an error of law in imposing an alternative procedure": at para. 17. Justice Rady noted at para. 19 that Justice Perrell had not had the benefit of the refined framework for the preferability analysis provided in AIC Limited, including the questions to be considered in determining the access to justice factor: · what are the barriers to access to justice? · what is the potential of the class proceeding to address those barriers? · what are the alternatives to a class proceeding? · to what extent do the alternatives address the barriers identified? · how do the available proceedings compare? [164] Justice Rady concluded the plaintiffs faced a "powerful economic barrier to access to justice" in the litigation costs associated with advancing individual claims, that "the resolution of the common issues, including whether systemic abuse existed, would move the litigation forward in a significant way" via a process that would be "streamlined, involving a discreet set of examinations for discovery and documentary disclosure" and a single claim in which "any expert testifying on the issue of institutional abuse would testify but once" would all promote the goals of access to justice and judicial economy and avoid the risk of inconsistent outcomes: at paras. 20-21. [165] The nature of the claim sought to be certified in Carcillo differs significantly from the plaintiffs' claim in this case. Carcillo involved a proposed class action against 78 defendants who owned 60 amateur hockey teams situated in every Canadian province except Newfoundland and Labrador, as well as in four American states, requiring consideration and determination of defences, including limitation issues, in 13 jurisdictions, as well as choice of law issues with respect to the common law, civil law, and potentially American law(s): Carcillo SC at paras. 1, 396. It was a proposed claim of extraordinary scope and complexity, which rendered it "unmanageable": Carcillo SC at paras. 396, 423; Carcillo CA at para. 13. Given the factual basis within which the broad claims in Carcillo were to be advanced, there was no single, uniform system of conduct and that establishing liability would therefore require individualized trials, and that the proposed class action was not the preferable procedure. The chambers judge also found that a class proceeding would not achieve judicial economy because the common issues trial would not make the inevitable individual issues trials more efficient or manageable: Carcillo SC at para. 394. [166] The factual and legal landscape of this case is much different. The plaintiffs claim involves allegations of systemic wrongs within one single institution, in one Province, with a small number of defendants, factors which in my view distinguish it from Carcillo and bring it more in line with cases relied on by the plaintiffs, including both Rumley, Cloud v. Canada (Attorney General), 73 O.R. (3d) 401, 2004 CanLII 45444 (ON CA): Carcillo CA at para. 59. [167] Class actions have frequently been viewed as the preferable procedure for institutional abuse claims raising issues of systemic liability, that is, liability not specific to the individual circumstances of particular plaintiffs but to the Class as a whole. In addition to the Cavanagh which I have already addressed, the following are some further examples: a) Canada v. Greenwood, 2021 FCA 186, leave to appeal to SCC ref'd, 39885 (17 March 2022). Greenwood was a class action brought on behalf of current or former RCMP members alleging negligence and seeking damages for non-sexual bullying, intimidation and harassment, alleged to be systemic in RCMP workplaces, and for alleged related reprisals suffered by those who have raised complaints. The certified questions included whether the RCMP owed a duty of care to the plaintiffs to take reasonable steps in the operation or management of the force to provide them with a work environment free from bullying, intimidation and harassment, whether there was a breach of that duty by the RCMP's agents, servants, and employees, and if so, whether the RCMP was vicariously liable. b) Araya v. Canada (Attorney General), 2023 FC 1688 - certifying a class proceeding alleging systemic negligence and breaches of ss. 7 and 15(1) Charter rights brought on behalf of black persons who allege that they were subjected to physical, emotional and / or psychological abuse while incarcerated in a Correctional Service of Canada (CSC) Facility during the Class Period, and who are alive on the date this action is certified. The certified questions included whether Canada breached a duty of care owed to the Class to protect them from actionable physical or psychological harm, in its operation or management of the CSC and whether Canada breached the Charter rights of the Class. c) Nasogaluak v. Canada (Attorney General), 2021 FC 656, varied in part but maintaining certification 2023 FCA 61, leave to appeal to SCC ref'd 40734 (14 December 2023) - a class action on behalf of Aboriginal persons alleging they were assaulted while detained or held in custody by RCMP officers in the Northwest Territories involving systemic negligence, ss. 7 and 15(1) Charter breaches and breach of a fiduciary duty owed by the RCMP to the Indigenous people in NWT (the latter cause of action found to be bound to fail on appeal). Common issues certified included whether the defendant breached a duty of or the Charter rights of the class in its operation or management of the RCMP. d) Rumley - a class proceeding on behalf of former students of the Jericho Hill School and others for systemic negligence and breach of fiduciary duty for failing to protect students from sexual abuse in the operation and management of the school. e) Francis v. Ontario, 2021 ONCA 197 - class action for systemic negligence, certified on a consent basis, brought on behalf of seriously mentally ill inmates and inmates left in segregation for 15 or more consecutive days at the Toronto South Detention Centre, base don systemic negligence. [168] Nonetheless, I am mindful that the preferability as a class proceeding is not a presumption: Carcillo SC at para. 390. [169] The Province also argues there are inevitable issues involving access to records of members of the Main Class under the Youth Criminal Justice Act which would be more complicated in a class proceeding because for any given class member class counsel is not their counsel. I am not satisfied that is the case: Burke v. Red Barn at Mattick's Ltd., 2024 BCSC 965 at para. 43. [170] The Province also argues that if the Indigenous Claims give rise to common issues (which it did not concede), the trial of those common issues would substantially delay the claims of non-Indigenous members of the Class. Again, I am satisfied that is something that can be addressed through judicial case management. [171] I place significant weight on the access to justice factor in this case. Assuming Class members could find a lawyer willing to represent them in bringing an individual action, the financial cost of doing so would be high. The Class consists of vulnerable individuals. The class proceeding procedure may exact a less severe human cost than individual litigation given that there is often strength, and collective support, in numbers: Carcillo CA at para. 6. In the context of litigation for various forms of abuse, I would not underestimate the importance of such factors in the preferable procedure analysis. I place less weight on the analysis undertaken in Carcillo SC, given the absence of consideration of how class actions can help victims overcome significant psychological and social barriers to seeking justice: Carcillo CA at para. 6. The determination of the common issues will advance the litigation and avoid the risk of inconsistent outcomes based on a variation in the determinations on those common issues. [172] If it becomes apparent that the claim is unmanageable, it is open for an application to be made seeking to decertify the action or amend the common issues. Such an application was made in Rumley SC 2003. I observe however, that despite her comments questioning the utility of the class proceeding (on which the defendants rely), Justice Humphries nonetheless refused to decertify the action but did amend one common issue: Rumley SC 2003 at para. 92. [173] I am satisfied certifying this action as a class proceeding would facilitate access for justice for the Class, serve the objective of judicial economy, and avoid the risk of inconsistent outcomes on material common issues. For these reasons, and the other reasons set out in this judgment, I conclude a class proceeding is the preferable procedure. E. Is there a representative plaintiff who would fairly and adequately represent the interests of the Class [174] In the initial certification application filed April 8, 2022, Joanne Wesley, at that time the sole plaintiff, proposed that she be appointed as the representative plaintiff of the proposed Class (at that time proposed as comprising of the non-Indigenous Class, the Indigenous Class and the Family Class). On June 15, 2023, a new certification application was filed seeking to have Ms. Wesley appointed as the representative plaintiff of the proposed non-Indigenous Class and Dr. Steeves (not yet a plaintiff) appointed as the representative plaintiff of the proposed Indigenous Class. [175] On June 29, 2023, the SANOCC was filed, which added Dr. Steeves as a plaintiff to the action. However, a party cannot be added by pleadings amendment: Supreme Court Civil Rule 6-1(1); Alexis v. Duncan, 2015 BCCA 135 at paras. 3, 24-25. While maintaining their objections to certification, the defendants concede, reasonably in my view, this situation is an irregularity that can properly be cured by an order properly adding Dr. Steeves as a plaintiff party to the action: Supreme Court Civil Rules 6-2(7)(b) and 22-7(1). The defendants submit that if the action is not certified as a class proceeding, no such order is needed. [176] On February 8, 2024, the defendants inquired about the province of residency of Ms. Wesley and Dr. Steeves. On March 14, 2024, counsel for the plaintiffs confirmed that both were resident in Ontario. [177] Shortly thereafter the plaintiffs filed an application to have Shirley May Williams appointed as the representative plaintiff for the Class and to have Dr. Steeves appointed as representative plaintiff for the Indigenous Subclass. [178] Ms. Williams deposes that she was at the School for approximately two years between 1962 and 1964, deposes that she experienced the same conditions and types of abuse alleged in the SANOCC, including being detained in the hole for extended periods of time, forced genital examinations, which caused her to suffer damage and loss. She was a resident of B.C. at the time the action was initiated, remains a resident of B.C., and is prepared to act as a representative plaintiff. She does not depose that she is Indigenous. a) Positions of the parties [179] All of the defendants take the position that Ms. Wesley and Dr. Steeves lack standing to be certified as representative plaintiffs arguing the plaintiffs have not established either were B.C. residents at the time the action was initiated. [180] The defendants point out that Ms. Williams is not yet a plaintiff in the proceeding, a prerequisite to being a representative plaintiff, and while maintaining their objections to certification, do not otherwise take issue with Ms. Williams' standing to be certified as a representative plaintiff for the Class. [181] The plaintiffs concede Ms. Wesley does not have standing to be a representative plaintiff of the Class. Section 2(1) of the CPA provides: A resident of British Columbia who is a member of a class of persons may commence a proceeding in the court on behalf of the members of that class. [182] However, the plaintiffs argue the defendants' residency concerns can be addressed by appointing Ms. Williams as the representative plaintiff for the entire Class and Dr. Steeves as representative plaintiff for the Indigenous Subclass. b) Analysis and conclusion [183] The plaintiffs argue the standing provision of the CPA is to be approached generously and flexibly, pointing to 2018 amendments to the CPA relating to multi-jurisdictional class proceedings. However, the retention of the residency requirement despite those amendments supports an interpretation that the residential requirement remains intended to limit standing and entitlement to initiate a proposed class proceeding in B.C., to members of the public served by the courts of British Columbia: MM Fund v. Excelsior Mining Corp., 2024 BCCA 163 at para. 81. [184] As support for their position that flexibility is required the plaintiffs rely on Ewert SC. The claim in Ewert SC stemmed from a lockdown at Kent Institution, a maximum-security penitentiary in Agassiz, B.C., and the associated restriction of inmates' activities and searches of both inmates and their cells which the claim alleged were unlawful. The defendant argued Mr. Ewert was not a suitable representative plaintiff because at the time of the application, he was incarcerated in Québec. However, Justice Blok was satisfied Mr. Ewert was an appropriate representative plaintiff given that he had been a resident of British Columbia at the time the action was commenced, which is all s. 2(1) of the CPA requires: Ewert SC at paras. 116-117. [185] In Jiang v. Peoples Trust Company, 2018 BCSC 299 (Jiang SC), Justice Bowden observed it is open to the Court to conditionally certify a proceeding, adjourn the proceedings, and allow a plaintiff to provide further evidence of her residency at the time this application was commenced. After the concerns about the plaintiffs' residency were raised by the defendants, Dr. Steeves did file a further affidavit, in which she did not attest to being resident in B.C. at the time the action was filed. [186] This case is not analogous to Douez v. Facebook, Inc., 2019 BCSC 715 (Douez SC) relied on by the plaintiffs. In Douez, the representative plaintiff in an already certified class action, sought to amend the certification order to add residents of Manitoba, Saskatchewan, and Newfoundland and Labrador to the class, and to continue as the representative plaintiff. Justice Iyer noted that s. 6 of the CPA does not prohibit a single representative plaintiff representing both resident and non-resident subclasses as long as resident and non-resident sub-classes share the same common issues: at para. 57 citing Jiang SC at paras. 41-42. The Court was satisfied Ms. Douez, a B.C. resident, was an appropriate representative of the non-resident subclasses. [187] The differences the between the issues affecting the Class and the Indigenous Subclass are not limited to residency. The Indigenous Subclass is seeking to advance causes of action that are not available to the entire Class and as such there is not a sharing of common issues across the Class. [188] Based on the evidence presented, I am satisfied Ms. Williams would fairly and adequately represent the interests of the Class as a representative plaintiff. However, I am not satisfied Ms. Williams could adequately represent the interests of the Indigenous Subclass. In my view, the protection of the interests of the Indigenous Subclass would require that they be separately represented by someone who is a member of the Indigenous Subclass. Dr. Steeves is such a person. [189] While the CPA restricts the standing of those who can initiate a proposed class proceeding to a member of the proposed class who is a B.C. resident, there is no such requirement in the CPA with respect to a representative plaintiff for a subclass: CPA, s. 6(1). A determination under s. 6(1) of the CPA of who can serve as a representative plaintiff for a subclass takes place within the context of certification application, and focusses on the Court's view about capacity to represent the interests of a subclass in a class proceeding which has been properly initiated by a B.C. resident who is a member of the class: Vivendi at para. 77. [190] I am satisfied Dr. Steeves could fairly and adequately represent the interests of the Indigenous Subclass as a representative plaintiff. Dr. Steeves is added as a plaintiff party to this action and appointed as the representative plaintiff for the Indigenous Subclass. [191] The plaintiffs have submitted an initial litigation plan they submit is workable. None of the defendants expressed concerns about the proposed litigation plan. If any deficiencies in the litigation plan become evident, it can be adjusted, if and as necessary, as the litigation unfolds. V. CONCLUSION AND SUMMARY [192] The Province's application to strike parts of the SANOCC as against it for disclosing no cause of action is granted in part, as set out in these reasons, and is otherwise dismissed. [193] Canada's application to strike the SANOCC as against it for disclosing no cause of action is granted in part, as set out in these reasons, and is otherwise dismissed. [194] I find the plaintiffs have met the requirements for certification under s. 4 of the CPA, subject to and as outlined in these reasons, and as such I must and do order certification of the action: CPA, s. 4(1). [195] Dr. Steeves is added as a plaintiff party in this action. [196] Section 8 of the CPA imposes certain requirements with respect to a certification order: Contents of certification order 8 (1) A certification order must (a) describe the class in respect of which the order was made by setting out the class's identifying characteristics, (b) appoint the representative plaintiff for the class, (c) state the nature of the claims asserted on behalf of the class, (d) state the relief sought by the class, (e) set out the common issues for the class, (f) state the manner in which and the time within which a class member may opt out of the proceeding, and (g) [Repealed 2018-16-7.] (h) include any other provisions the court considers appropriate. (2) If a class includes a subclass whose members have claims that raise common issues not shared by all the class members so that, in the opinion of the court, the protection of the interests of the subclass members requires that they be separately represented, the certification order must include the same information in relation to the subclass that, under subsection (1), is required in relation to the class. [197] The Class Period is the period of time between April 3, 1914, and August 21, 1973. [198] The Class shall be described as follows: All persons, other than staff, who were admitted or committed to the School or resided at the School during the Class Period. [199] The Indigenous Subclass shall be described as follows: All persons, other than staff, who are of Indigenous ancestry and who consider themselves to be an Indigenous person, who were admitted or committed to the School or resided at the School during the Class Period. [200] I appoint Ms. Williams to be the representative plaintiff for the Class. [201] I appoint Dr. Steeves to be the representative plaintiff for the Indigenous Subclass. [202] The nature of the claims asserted on behalf of the Class are: 1. As against Canada, negligence, breach of fiduciary duty, and misfeasance in public office; and 2. As against Dr. MacKenzie, battery, negligence, and breach of fiduciary duty. [203] The nature of the additional claims asserted on behalf of the Indigenous Subclass as against the Province and Canada are breach of fiduciary and constitutional duties and Aboriginal rights, and, as against the Province only, vicarious liability for the acts and omissions of Dr. MacKenzie. [204] The Class and the Indigenous Subclass seek damages, including punitive and aggravated damages, declaratory relief, costs and interest under the Court Order Interest Act, R.S.B.C. 1996, c.79. [205] I have modified the language of some of the common issues proposed by the plaintiffs because some were unnecessarily broad rendering them unworkable, some were abandoned, and in order to align with conclusions I have made in the cause of action analysis. [206] The common issues for the Class are as follows: 1. Did the defendants or any of them owe members of the Class a duty of care in their respective roles in the management or operation of the School? 2. If so, what was (were) the standard(s) of care during the Class Period? 3. Did the defendants or any of them breach the standard of care at any time or times during the Class Period? 4. Did the defendants or any of them owe members of the Class a fiduciary duty in their respective roles in the management or operation of the School? 5. If so, did the defendants or any of them breach their fiduciary duty at any time or times during the Class Period? 6. What policies, practices, and procedures relevant to the claims advanced by the Class and the Indigenous Subclass were in place at the School during the Class Period? 7. Did the defendants or any of them implement and / or carry out a scheme of sexual abuse of Class members in respect of systematic medical examinations and testing at the School? If so, when and how? 8. Should the Court order damages, equitable remedies, and/or declarations in respect of the claims made on behalf of the Class? 9. Did the defendants or any of them engage in conduct which justifies an award of punitive damages? If so, when and how? 10. If Class members are entitled to recover damages, can the amount or some portion thereof be determined on an aggregate basis under s. 29 of the CPA? If so, what amount should be paid, and how shall it be distributed among Class members? 11. What procedures should apply to the determination of any individual questions which remain after determination of some or all of the common issues, pursuant to s. 27 of the CPA? [207] The additional common issues for the Indigenous Subclass are as follows: 12. Does Crown immunity apply to any of the Tort Claims of the Indigenous Subclass? If so, does Crown immunity preclude declaratory relief sought in relation to those claims? 13. Is the Province vicariously liable for the acts and omissions of Dr. MacKenzie? 14. What degree of supervision, responsibility, or control did Canada have or maintain in respect of Indigenous Subclass at the School, whether through Indian Agents or other officials or appointees under the Indian Act, S.C. 1876, c. 18 or successor legislation? 15. Did the Province or Canada implement a scheme of systematic cultural assimilation at the School in respect of members of the Indigenous Subclass? If so, when and how? 16. Did the Province or Canada owe constitutional duties to the Indigenous Subclass in the context of their respective roles in the management and operation of the School? If so, a) what is the content of the duties owed, related to the claims advanced by the Indigenous Class? b) did the Province or Canada breach any constitutional duties owed to the Indigenous Class? If so, when and how? 17. Did the Province or Canada breach the Aboriginal rights of the Indigenous Subclass? If so, how and when? [208] The parties shall schedule a further case management conference to speak to any required amendments to the litigation plan, the form, process, and logistics for providing notice to the Class, as well as the manner in which and the time within which a Class member may opt out of the proceeding, and the further advancement of this class proceeding. [209] If the parties cannot agree on the various paragraphs of the SANOCC that are to be stuck, they are to submit a Request to Appear setting out their proposed approach(es) to resolving the issue. [210] In accordance with s. 37(1) of the CPA, I make no award of costs for these applications. [211] I wish to thank all counsel for their helpful submissions. "V. Jackson J." [1] The evidence filed reflects girls as young as eight (8) were detained at the School.