FACTUM OF THE APPELLANTS (MOVING PARTIES)

COURT OF APPEAL FOR ONTARIO Court of Appeal Court File No. M28645 BETWEEN: MARLENE C. CLOUD, GERALDINE ROBERTSON, RON DELEARY, LEO NICHOLAS, GORDON HOPKINS, WARRN DOXTATOR, ROBERTA HILL, J. FRANK HILL, SYLVIA DELEARY. WILLIAM R. SANDS, ROSEMARY DELEARY and SABRINA YOLANDA WHITEYE - an.d- Plaintiffs(Appellants) THE ATTORNEY GENERAL OF CANADA, THE GENERAL SYNOD OF THE ANGLICAN CHURCH OF CANADA, THE INCORPORATED SYNOD OF THE DIOCESE OF HURON and THE NEW ENGLAND COMPANY FACTUM OF THE APPELLANTS (MOVING PARTIES) Defendants(Respondents) KOSKIE MINSKY Barsters & Solicitors 900-20 Queen Street West Toronto, Ontaro M5H3R3 Kirk M. Baert (#309420) Tel: 416-595-2117 Fax: 416-204-2889 Counsel for the appellants TO: DEPARTMENT OF JUSTICE CANADA The Exchange Tower 3400-130 King Street West Toronto, ON M5X 1K6 James W. Leising Tel: 4.16-973-3746 Fax: 416-973-8253 Solicitors for the defendant, The Attorney General of Canada

- 2- McCARTHY TETRAULT LLP One London Place 2000-255 Queens Avenue London, ON N6A 5R8 Brian T. Daly Tel: 519-660-7239 Fax: 519-660-3599 Solicitors for the defendant, The Incorporated Synod of the Diocese of Huron BORDEN LADNER GERVAIS LLP Scotia Plaza 4100-40 King Street West Toronto, ON M5H 3Y4 Robert Bell Tel: 416-367-6000 Fax: 416-367-6749 Solicitors for defendant, The New England Company T:I20021020144IPLEAOINGSIFACTUM CVRJUNE 27 02.doc

COURT OF APPEAL FOR ONTARIO Court of Appeal Court File No. M28645 BETWEEN: MARLENE C. CLOUD, GERALDINE ROBERTSON, RON DELEARY, LEO NICHOLAS, GORDON HOPKINS, WARRN DOXTATOR, ROBERTA HILL, J. FRANK HILL, SYLVIA DELEARY. WILLIAM R. SANDS, ROSEMARY DELEARY and SABRINA YOLANDA WHITEYE -and- Plaintiffs(Appellants) THE ATTORNEY GENERAL OF CANADA, THE GENERAL SYNOD OF THE ANGLICAN CHURCH OF CANADA, THE INCORPORATED SYNOD OF THE DIOCESE OF HURON and THE NEW ENGLAND COMPANY FACTUM OF THE APPELLANTS (MOVING PARTIES) PART I - THE MOTION Defendants(Respondents) 1. This is a motion by the appellants/plaintiffs (the "appellants") for an order transferrng the appeal from the Divisional Court in London to the Court of Appeal at Toronto. In the event that the appeal is transferred to ths cour, the appellants seek an order expediting the appeal. 2. The respondents/defendants (the "respondents") oppose the motion or take no position. Those respondents that oppose the appellants' motion maintain that the Court of Appeal does not have jurisdiction to hear any par of the proposed appeal. PART II - THE FACTS 3. The appellants' motion to certify this action as a class proceeding under the Class Proceedings Act, 1992 (the "CPA") was heard by Haines J. in London over 8 days in June 2001.

- 2-4. In reasons released on October 9, 2001, Haines J. dismissed the motion to certify the action as a class proceeding. He also concluded that claims of family members pursuant to s. 6 I of the Family Law Act could not be asserted and that the Ontaro Superior Court lacked jursdiction to hear any claim as against the Federal Crown that arose from any event that occurred prior to May 1953. 5. The decision of Haines J. to dismiss the plaintiffs' motion for certification was released nine days before the Supreme Court of Canada released its reasons in Rumley v. British Columbial and in Hollck v. City of Toronto? In Rumley, the Supreme Court of Canada upheld a decision of the B.C. Court of Appeal to certify a class proceeding brought by former students of a provincial school for the deaf, based on allegations of systemic negligence. Although the B.C. Court of Appeal decision in Rumley was cited and referred to before the learned motions court judge, his reasons no contain no reference to that decision. 6. The decision of Haines J. in the instant case is at odds with the approach and reasoning of the Supreme Court of Canada in both Rumley and Hollck, particularly with respect to whether there is an identifiable class under s. 5(1 )(b) of the CPA and whether there are common issues under s. 5(1)( c) of the CPA. 7. The plaintiffs delivered a notice of appeal on November 8, 2001 with respect to: (i) the refusal to certify; (ii) the determination that the Ontario Superior Court of Justice lacks jurisdiction; and (iii) the dismissal of claims arising under s. 61 of the Family Law Act. The J Rumley v. British Columbia (2001), 205 D.L.R. (4th) 39 (S.c.c.) 2 Hollck v. Toronto (2001), 205 D.L.R. (4th) 19 (S.C.c.)

- 3 - appeal was filed in the Divisional Court in London because s. 30(1) of the CPA states that appeals from denials of certification orders lie to the Divisional Cour. 8. On Januar 30, 2002, the Divisional Court released its reasons in Menegon v. Philip Services et al. ("Menegon"). In Menegon, the Divisional Cour ordered that a similar certification appeal be transferred to the Court of Appeal on the basis that certain of the orders made by the motions court judge in that case were "final" orders and that therefore, the appeal lay to the Cour of Appeal, notwithstanding the provisions of the CPA. 9. On February 19, 2002, immediately after the decision in Menegon came to appellants' attention, the appellants served (but did not file) a notice of appeal to the Court of AppeaL. 10. The appellants immediately wrote to the respondents and informed them why a second notice of appeal had been delivered. The appellants asked for the respondents' consent to transfer the entire appeal from the Divisional Court to the Court of AppeaL. The respondents did not consent. 11. Notwthstanding the above, the Divisional Court appeal was pedected on April 16, 2002 in London. The respondents have not filed their respective facta in that appeal, though they were due on June 16, 2002. 12. Many of the members of the proposed class of former students are elderly. Regardless of which court hears the appeal, there is a genuine need to expedite the hearng of the appeal because of the continuing danger that some claimants may die or fall seriously ill before this matter can be heard on its merits. 13. The decision in Lafance Estate v. Canada dated January 11, 2002 ("Lafrance") raises similar issues. An appeal in Lafrance has been launched and is pending in the Court of AppeaL.

- 4- It would serve the interests of consistency and judicial economy for the appeal in Lafrance and the appeal in the instant case to be heard together on the issue of claims by family members pursuant to s. 61 of the Family Law Act. PART III - THE ISSUES AND THE LAW 14. This court has jurisdiction to make the requested transfer order. Section 6(3) of the Courts of Justice Act states: The Court of Appeal may, on motion, transfer an appeal that has already been commenced in the Divisional Court or the Superior Court of Justice to the Court of Appeal for the purpose of subsection 2. 15. Section 6(2) of the Courts of Justice Act states: The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Court or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Court of AppeaL. 16. The issue is whether Haines J. made any orders that are "final" orders that would therefore engage the appeal provisions in the Courts of Justice Act. Section 6(1)(b) of of Justice Act states: the Courts An appeal lies to the Court of Appeal from, (a) an order of the Divisional Court on a question that is not a fact alone, with leave of the Court of Appeal as provided in the Rules of Court; (b) a final order of a judge of the Superior Court of Justice, except an order referred to in clause 19(1 )( a) or an order from which an appeal lies to the Divisional Court under another act; (c) a certificate of assessment of costs issued in a proceeding in the Court of Appeal on an issue in respect of which an objection was served under the Rules of Court. 17. The CPA also contains appeal provisions. The appeal routes vary depending on who is bringing the appeal and on what matter the appeal relates to. With respect to certification, section 30(1) and 30(2) are the relevant provisions. Section 30( I) of the CPA states: A part may appeal to the Divisional Court from an order refusing to certify a proceeding as a class proceeding and from an order decertifying a proceeding.

- 5-18. Section 30(2) of the CPA states: A part may appeal to the Divisional Court from an order certifying a proceeding as a class proceeding, with leave of the Ontario Court General Divisional as provided in the rules of court. 19. By contrast, section 30(3) of the CPA states: A part may appeal to the Court of Appeal from a judgment on common issues and from an order under section 24, other than an order that determines individual claims made by class members. An examination of the orders made by Haines J. 20. In addition to his decision not to certify the action as a class proceeding, Haines J. made a number of final legal determinations on certain of the issues raised by the pleadings. 21. Section 5(1) of the CPA states: The court shall certify a class proceeding on a motion under section 2, 3 or 4 if, (a) the pleadings or the notice of application discloses a cause of action; (b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant; (c) the claims or defences of the class members raise common issues; (d) a class proceeding would be the preferable procedure for the resolution of the common issues; and (e) there is a representative plaintiff or defendant who, (i) would fairly and adequately represent the interests of class, the (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 for the class, an interest in conflict with the interests of other class members. 1992, c. 6, s. 5 (I).

- 6-22. It is conceded that the determinations under sections 5(1 )(b) through 5(1)( e) of the CPA do not involve determinations that could be considered final for the puroses of section 6(1) of the Courts of Justice Act. However, certain of the other determinations of Haines J. made under section 5(1)(a) of the CPA, are, it is submitted, final orders, since he determined that it was "plain and obvious" that the claims could not succeed. Final Order: The issue of jurisdiction 23. On the motion for certification, the defendants contended that all claims based on acts or omissions occurng prior to 1953 were statute-bared by virtue of section 24 of the Crown Liabilty Act. 3 24. The defendants submitted that the provisions of the 1953 Crown Liabilty Act bared the taking of proceedings against the Crown or her agents for anything that occurred or existed before May 14, 1953, the date the Act came into force. They also contended that the Crown Liabilty and Proceedings Act4 was the only vehicle available for bringing proceedings against the Attorney General of Canada in a provincial superior court. 25. The defendants argued that insofar as the plaintiffs purported to bring the action against the Crown pursuant to the Crown Liabilty and Proceedings Act and against other defendants as Crown agents, they failed to plead a cause of action that the Ontario Superior Court of Justice had jurisdiction to entertain with respect to conduct that occured before May 14, 1953. 26. In paragraph 15 of his reasons, Haines J. stated: I agree with this submission. 3 S.C. 1952-53 c. 30 4 R.S.C. i 985, c. C-50

- 7-27. In paragraph 16, of his reasons, Haines J. stated: It seems to me that the language of section s. 24(1) is clear and its meaning on ambiguous. It may be that the plaintiffs have a cause of action that they can pursue under the Exchequer Court Act or its successor, the Federal Court Act, R.S.c. 1985, c. F-7, as amended, but in my view, it is plain and obvious that any claims arising from Acts or omissions that predate May 14, i 953, cannot succeed in this Court under the Crown Liabilty and Proceedings Act. 28. The appellants have appealed this determination. They maintain that the Ontaro Superior Cour of Justice does have jurisdiction for three basic reasons: (i) First of all, the appellants maintain that the Ontario Superior Court of Justice and its predecessors, going back to the Courts of Equity, have always had jurisdiction to entertain equitable claims, such as the claim of breach of fiduciary duty made in this action as against the Crown. (ii) Second, by contrast there was no right to sue the Crown at common law in tort absence of statutory foundation for the claim. The Exchequer Court Act was amended in 1887, 19 i 7 and again in 1938 to permit claims to be brought against the Crown for vicarious liability for negligence of Crown servants or employees acting in the course of their employment. Thus a proceeding against the Crown for vicarious liability for negligence pre 1953 based upon the Exchequer Court Act is not a proceeding against the Crown "under this Act", being the 1953 Crown Liabilty Act. (iii) Third, the appellants maintain that the motions court judge erred in holding that any claim for anything that occurred before May 14, 1953 cannot be asserted in the Ontario Superior Court of Justice because of s. 24( 1) of the Crown Liabilty Act, 1953. The appellants' claims for breach of fiduciar duty are equitable in nature and fall within traditional jurisdiction of the Ontario Superior Court of Justice. The claim is based on pre May i 4, i 953 conduct for vicarious liabilty for negligence are authorized by the Exchequer Court Act, and the Ontario Superior Court of Justice has concurrent in Jurisdiction with respect to such claims under the current Crown Liabilty and Proceedings Act. 29. The determination that the Ontario Superior Cour of Justice does not have jurisdiction with respect to any claims against the Crown for pre-1953 conduct is a final order. Final or Interlocutory? 30. In Ball v. Donais, this court stated: The effect of the order of Daudlin J. was to preclude the defendants' entitlement to raise thereafter, as a defence to this action, the plaintiffs' failure to sue within

- 8 - the limitation period prescribed by the Highway Traffc Act. While that order did not finally dispose of the rights of the part to the litigation, it did, subject to appeal therefrom, finally dispose of the issue raised by that defence, and thereby deprive the defendant of substantive right which could be determinative of the entire action. The view from that prospective, the order of Daudlin J. was a final order within the contemplation of the decisions of this court in (citations omitted) Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.) 31. It is submitted that the decision of this court Ball v. Donais is dispositive of the issue of whether the order in question is final or not. The effect of the order under appeal is to preclude the appellants from again raising the issue that the Ontario Superior Court of Justice has jurisdiction to make awards of damages for conduct that occurred prior to 1953. The order under appeal finally disposes of that jurisdictional issue and deprives the appellants of this substantive right that could be determinative of the case itself. Ball v. Donais (1993), 13 O.R. (3d) 322 (C.A.) 32. In Menegon v. Philp Services Corp.,s the Divisional Court had an opportunity to deal with a similar issue. In that action, the plaintiffs sought certification of an action for securities misrepresentation and named the issuer, the underwters and the auditors. The motions judge, Gans J., did not allow an amendment to the claim of the plaintiff in that action but rather dismissed the action on the cross-motion of the defendants on the basis of rule 2 I. 33. The plaintiffs appealed to the Divisional Court. In ordering that the appeal be transferred to the Court of Appeal, Farley J. stated: Although an appeal from a refusal to certify an action as a class proceeding is to the Divisional Court, the refusal here was based on the failure of Menegon in the statement of claim to disclose a cause of action. However that same failure is the foundation of the determination of Gans J. to dismiss the action and refuse leave to amend. The action having been dismissed, the question of its certification as a 5 (2002) OJ. No. 370 (Div. Ct.)

- 9- class proceeding is moot; in order to have certification of the action, the judgement dismissing the action would have to be put aside. The dismissal of the action, as discussed, is a final order, an appeal from which only lies to the Court of Appeal in these circumstances. 34. If Menegon was properly transferred to the Court of Appeal, so should the instant case. Final Order: Family Law Act issue 35. Haines J. also held that the claim made under the Family Law Act could not succeed with respect to certain class members. 36. At paragraph 48 of his reasons, Haines J. noted that at common law there was no cause of action available to relatives for loss of care, guidance and companionship resulted from death or injuries suffered by a family member. He also noted that it was only with the passage of the Family Law Reform Act 6 in 1978 that a statutory cause of action for such losses was created. 37. Haines J., relying on the decision of this court in Yuil v. McMilan? held that s. 60 of the Family Law Reform Act was not retrospective so as to confer a right of action for acts or omissions that occurred before the Family Law Reform Act came into force. 38. Haines J. agreed with the respondents' argument that since the events that give rise the claims of the proposed siblings and family classes all occurred well before the passage of s. 60 of the Family Law Reform Act, those claims were not sustainable at law and did not disclose a cause of action. 39. 'The order is final because it finally determined and ended the paricular proceeding with respect to the s. 61 Family Law Act damages. Such an order is not interlocutory simply because 6 R.S.O. 1980, c. 152 7 (1979), 100 D.L.R. (3d) 370 (H.C.J.), affirmed 110 D.L.R. (3d) 256 (C.A.)

- i 0- it does not finally determine, the other, quite possibly larger, issues between the paries which may subsequently be determined in this proceeding or by some other process. Buck Bros. Ltd. v. Frontenac Builders Ltd. et af. (1994), 19 O.R. (3d) 97 (C.A.) 40. The order of Haines J. has finally determined, in the context of this lawsuit as it is presently formulated, the rights of the parties as they relate to the s. 61 Family Law Act aspect of the claim. This characterization renders his order a final one for the purposes of determining the appropriate appellate route. 41. The order in question determines the merits of the case between the paries with respect to the Family Law Act claim. In such circumstances, the order is clearly a final order. Transferring the appeal 42. Based on the fact that the determinations with respect to the Family Law Act and the determinations with respect to the jurisdiction of the Ontario Superior Cour of Justice are final orders, it is clear that s. 6(2) of the Courts of Justice Act is engaged. The appeal lies to the Divisional Cour with respect to the determinations under ss. 5( 1 )(b), (c), (d) and (e) of the CPA as set out in s. 30 of the CPA. The appeal lies to the Court of Appeal with respect to the determinations that there is no cause of action disclosed under the Family Law Act and that the Ontario Superior Court of Justice does not have jurisdiction with respect to claims made for conduct that occurred prior to 1953. 43. Where such a situation arses, the proper approach is to have the appeals combined and heard in the higher court, namely the Cour of AppeaL. Fracturing the appeal into two separate appeals would delay the matter, risk inconsistent results and would not be consistent with the proper administration of Justice.

- 11 - The Lafrance Appeal 44. There is a fuher reason to transfer the appeal to the Court of AppeaL. In Lafrance Estate v. Canada,8 Poupore J. determined in another residential school proceeding that the claims made under s. 61 ofthe Family Law Act could not succeed with respect to conduct that took place prior to the passage of that statute. In doing so, Mr. Justice Poupore also relied on the decision of this court in Yuil v. McMilan.9 45. Poupore J. also dismissed claims made by varous estates where the claim had been made more than two years after the date ofthe deceased, and relied on s. 38(3) of the Trustee Act. By contrast, Haines J. refused to strike out similar claims in the instant case 46. Poupore J. and Trainor J. are case-managing all residential schools litigation in Ontario. They have suggested that the Lafrance appeal (also known as Bonaparte) be heard at the same time as this appeal in order to allow the Court of Appeal to deal with the issues arsing from the Family Law Act and the Trustee Act. Combining the two appeals and having them heard together will ensure consistent results and save the paries time and expense. 47. All paries in this case are agreed that in the event the appeal is transferred to the Court of Appeal, the appeal should be expedited. PART IV - ORDER REQUESTED 48. The appellants request that the motion be granted, with costs. 8 (2002) OJ. NO.1 12 9 Supra note 7

- 12 - June 27, 2002 ALL OF WHICH IS RESPECTFULLY SUBMITTED )~ Kirk M. Baert KOSKIE MINSKY Of counsel for the appellants/moving paries T:I20021020144\PlEAOINGS\FACTUM JUNE 27 02.doc

SCHEDULE "A" LIST OF AUTHORITIES REFERRD TO Rumley v. British Columbia (2001),205 D.L.R. (4th) 39 (S.C.C.) Hollckv. Toronto (2001), 205 D.L.R. (4th) 19 (S.C.C.) Crown Liabilty Act (1952-53), c. 30 (S.c.) Crown Liabilty and Proceedings Act (1985), R.S.C. c. C-50 Menegon v. Philp Services Corp., (2002) O.J. No. 370 (Div. Ct.) Family Law Reform Act (1980), R.S.O. c. 152 Yuil v. McMilan (1979), 100 D.L.R. (3d) (H.C.J.), affirmed 110 D.L.R. (3d) 256 (C.A.) Lafance Estate v. Canada, (2002) OJ. No. 112

SCHEDULE "B" TEXT OF STATUTES REFERRD TO Class Proceedings Act Section 5(1) of the Class Proceedings Act: The cour shall certify a class proceeding on a motion under section 2, 3 or 4 if, (a) the pleadings or the notice of application discloses a cause of action; j j (b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant; (c) the claims or defences of the class members raise common issues; (d) a class proceeding would be the preferable procedure for the resolution of the common issues; and (e) there is a representative plaintiff or defendant 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 for the class, an interest in conflct with the interests of other class members. i 992, c. 6, s. 5 (1). Section 30(1) of the CPA: A pary may appeal to the Divisional Court from an order refusing to certify a proceeding as a class proceeding and from an order decertifying a proceeding. Section 30(2) of the CPA: A party may appeal to the Divisional Court from an order certifying a proceeding as a class proceeding, with leave of the Ontario Court General Divisional as provided in the rules of court.

Section 30(3) of the CPA: A pary may appeal to the Cour of Appeal from a judgment on common issues and from an order under section 24, other than an order that determines individual claims made by class members. Courts of Justice Act Section 6(3) of the Courts of Justice Act: The Court of Appeal may, on motion, transfer an appeal that has already been commenced in the Divisional Cour or the Superior Court of Justice to the Court of Appeal for the purose of subsection 2. Section 6(2) of the Courts of Justice Act: The Court of Appeal has jurisdiction to hear and determine an appeal that lies to the Divisional Cour or the Superior Court of Justice if an appeal in the same proceeding lies to and is taken to the Cour of AppeaL. Section 6(1)(b) of the Courts of Justice Act: An appeal lies to the Cour of Appeal from, (f) an order of the Divisional Cour on a question that is not a fact alone, with leave of the Court of Appeal as provided in the Rules of Court; (g) a final order of a judge of the Superior Cour of Justice, except an order referred to in clause 19(1)(a) or an order from which an appeal lies to the Divisional Court under another act; (h) a certificate of assessment of costs issued in a proceeding in the Cour of Appeal on an issue in respect of which an objection was served under the Rules of Court.

MARLENE CLOUD et al and THE ATTORNEY GENERAL OF CANADA et al Plaintiffs Defendants Court of Appeal Court File No. M28645 COURT OF APPEAL FOR ONTARIO PROCEEDING COMMENCED AT LONDON FACTUM OF THE APPELLANTS (MOVING PARTIES) KOSKIE MINSKY 900-20 Queen Street West Toronto, Ontario M5H 3R3 Kirk M. Baert (LSUC #309420) Tel: 416-595-2 i 17 Fax: 416-204-2889 Counsel for the appellants