Reference re Broome v. Prince Edward Island

Reference re Broome v. Prince Edward Island
Collection
Supreme Court Judgments
Date
2010-04-01
Neutral citation
2010 SCC 11
Report
[2010] 1 SCR 360
Case number
33051
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Prince Edward Island
Subjects
Torts
Notes
SCC Case Information: 33051
Decision Content
SUPREME COURT OF CANADA
Citation: Reference re Broome v. Prince Edward Island,
2010 SCC 11, [2010] 1 S.C.R. 360
Date: 20100401
Docket: 33051
IN THE MATTER OF A Reference from the Lieutenant Governor in Council
pursuant to s. 18(1) of the Supreme Court Act, R.S.P.E.I. 1988, c. S‑10,
regarding Broome, et al. v. Government of Prince Edward Island and
Prince Edward Island Protestant Children’s Trust
Hardy Broome, et al.
Appellants
v.
Government of Prince Edward Island and
Prince Edward Island Protestant Children’s Trust
Respondents
‑ and ‑
Susan M. Marshall and Blair E. Ross
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 69)
Cromwell J. (McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ. concurring)
______________________________
Reference re Broome v. Prince Edward Island, 2010 SCC 11, [2010] 1 S.C.R. 360
IN THE MATTER OF a Reference from the Lieutenant Governor in Council pursuant to s. 18(1) of the Supreme Court Act, R.S.P.E.I. 1988, c. S‑10, regarding Broome et al. v. Government of Prince Edward Island and Prince Edward Island Protestant Children’s Trust
Hardy Broome et al. Appellants
v.
Government of Prince Edward Island and
Prince Edward Island Protestant Children’s Trust Respondents
and
Susan M. Marshall and Blair E. Ross Interveners
Indexed as: Reference re Broome v. Prince Edward Island
2010 SCC 11
File No.: 33051.
2009: November 10; 2010: April 1.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for prince edward island
Torts — Negligence — Duty of care — Relationship between Province and children residing in a privately operated children’s home — Children allegedly physically and sexually abused while residing in home between 1928 and 1976 — Whether Province owed duty of care to children by virtue of common law, its statutory authority and responsibility or doctrine of parens patriae — Whether there was sufficient proximity between Province and children living in home to give rise to prima facie duty of care.
Torts — Duty of care — Non‑delegable statutory duty — Children allegedly physically and sexually abused while residing in a privately operated children’s home between 1928 and 1976 — Whether Province under statutory duty to care for residents of homes.
Torts — Vicarious liability — Fiduciary duty — Children allegedly physically and sexually abused while residing in a privately operated children’s home between 1928 and 1976 — Whether sufficient control exercised over home by Province through legislative authority and statutory duties to establish vicarious liability of Province for alleged acts of physical and sexual abuse — Whether direct placement of some children in home by Province provides foundation for Province’s vicarious liability — Other than Crown wards, whether Province owed fiduciary duty to residents by virtue of their being either children or residents of children’s home.
In an action against the Prince Edward Island Protestant Children’s Trust (“Trust”) and the Government of Prince Edward Island (“Province”), the plaintiffs alleged physical or sexual abuse as children while they resided in a privately owned and managed children’s home (“Home”) between 1928 and 1976. Children were taken to the Home for care; some had been orphaned while others could not be cared for by their parents. The Home was closed in 1976 and its remaining assets were vested in the Trust. Both the Province and the Trust deny liability. As a result of the action, the Lieutenant Governor in Council brought a reference to the Prince Edward Island Court of Appeal based upon an Agreed Statement of Facts asking the court for its opinion about whether the Province had certain duties toward children who had allegedly been abused while residing in the Home. In particular, the reference posed 21 questions asking whether the Province (1) owed a general duty of care to the children; (2) had a non‑delegable duty in respect of the care given to the residents of the Home; (3) was vicariously liable for the acts or omissions of the Board of Trustees who were entrusted to operate the Home, or the volunteers or staff at the Home; or (4) owed a fiduciary duty to the residents of the Home. The Court of Appeal advised that the Province owed no such duties, subject to certain qualifications regarding: children who were placed in the guardianship of the Province; and those children who had been proposed for placement in the Home by a provincial employee in respect of whom the court declined to give an opinion.
Held: The appeal should be dismissed.
The reference questions were correctly answered by the Court of Appeal. Subject to the same qualifications stated by the Court of Appeal, the Province owed no duties towards the children residing in the Home. At all relevant times, the legislative scheme maintained two separate streams of child welfare, one private and one public. In order for a privately run children’s home to have been considered part of the public stream, either the governing body must have consented to the application of the relevant terms of the legislation or approval must have been granted by the Lieutenant Governor in Council. Given that there is no evidence in the record that the Board of Trustees consented to the application of the relevant legislation to the Home or that approval was either sought or given, the Province had no statutory duties or obligations with respect to the operation, management or supervision of the Home which would give rise to a duty of care. Similarly, the legislation incorporating the Home in 1921 did not impose duties or obligations on the Province. As well, the fact that the Province indirectly funded the operation of the Home cannot support the existence of sufficient proximity between the Province and the children to give rise to a duty of care. The grants were given to the Home with no restrictions and with no accountability requirements; their use was solely at the discretion of the Board of Trustees. Finally, the power of courts to make orders in the best interests of a child under the parens patriae doctrine does not support the existence of a private law duty of care on the part of the Province towards children in the care of third parties, and no authority was presented for the proposition that the doctrine imposes a positive duty on the Crown to seek out and address cases of potential child abuse. As found by the Court of Appeal, no duty of care in negligence arose. The facts, considered in light of the applicable legislation, do not support the existence of sufficient proximity between the Province and the residents of the Home, pursuant to the two‑stage test used to determine whether a novel duty of care should be recognized.
With respect to the claim that the Province owed a non‑delegable duty of care to the residents of the Home, the plaintiffs failed to show that the Province was subject to a statutory duty to use care in the first place. Subject to the qualification given by the Court of Appeal, the Home was not a child welfare agency under the legislation, the children were not foster children or wards of the Province, and the legislation created no role for the Province in the operation of the Home, for the care of the residents, for directing their care, or for ensuring that no harm came to them in the course of their care by the representatives of the Home.
The Court of Appeal also correctly rejected the contention that the Province was vicariously liable for the alleged acts of physical and sexual abuse by the Home’s employees. Neither legislative authority nor the placement of children by the Province directly in the Home alone provides a foundation for the Province’s vicarious liability. A sufficiently close connection between the Home and the Province has not been established.
Finally, the authority and duties of the Board of Trustees with respect to the operation of the Home and the supervision of the children left no room for a fiduciary relationship between the Province and the children. Other than children who were in provincial guardianship, there were no changes in the relationship between the Province and the residents of the Home, either as a result of a change in factual circumstances or legislative amendments, that would have given rise to a fiduciary relationship.
The limited record put forward in this case, namely a very brief statement of facts and a compendium of legislation, impeded the Court of Appeal in making definitive pronouncements on the issues raised in the reference. The utility of the reference procedure may be called into question where the factual basis for the reference is quite limited.
Cases Cited
Distinguished: K.L.B. v. British Columbia, 2003 SCC 51, [2003] 2 S.C.R. 403; M. (K.) v. M. (H.), [1992] 3 S.C.R. 6; Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3; Bazley v. Curry, [1999] 2 S.C.R. 534; referred to: Reference re Same‑Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; Reference re Objection by Quebec to a Resolution to Amend the Constitution, [1982] 2 S.C.R. 793; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Anns v. Merton London Borough Council, [1978] A.C. 728; Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2; Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537; Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562; Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263; Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643; Holland v. Saskatchewan, 2008 SCC 42, [2008] 2 S.C.R. 551; Design Services Ltd. v. Canada, 2008 SCC 22, [2008] 1 S.C.R. 737; Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, [2000] 1 S.C.R. 298; Ryan v. Victoria (City), [1999] 1 S.C.R. 201; Hill v. Hamilton‑Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129; Carmarthenshire County Council v. Lewis, [1955] 1 All E.R. 565; Ellis v. Home Office, [1953] 2 All E.R. 149; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388; British Columbia v. Canadian Forest Products Ltd., 2004 SCC 38, [2004] 2 S.C.R. 74; King v. Low, [1985] 1 S.C.R. 87; Re: B.C. Family Relations Act, [1982] 1 S.C.R. 62; Lewis (Guardian ad litem of) v. British Columbia, [1997] 3 S.C.R. 1145.
Statutes and Regulations Cited
Act to Incorporate The Prince Edward Island Protestant Orphanage, S.P.E.I. 1921, c. 27.
Children’s Act, S.P.E.I. 1940, c. 12, Part II [rep. & sub. 1950, c. 6, s. 22], ss. 7, 15, 107.
Children’s Protection Act, R.S.P.E.I. 1951, c. 24 [rep. & sub. 1961, c. 3, s. 29].
Children’s Protection Act, 1961, S.P.E.I. 1961, c. 3, ss. 1(d), (n), 3(2), 4 to 7, 14, 15, 25.
Children’s Protection Act of Prince Edward Island, S.P.E.I. 1910, c. 15, ss. 2(b), 3, 5, 13.
Deserted Wives’ and Children’s Maintenance Act, S.P.E.I. 1932, c. 7.
Indian Act, S.C. 1951, c. 29.
Supreme Court Act, R.S.P.E.I. 1988, c. S‑10 [rep. 2008, c. 20, s. 73], s. 18.
Authors Cited
Hogg, Peter W. Constitutional Law of Canada, vol. 1, 5th ed. Supp. Scarborough, Ont.: Thomson Carswell, 2007 (updated 2009, release 1).
Klar, Lewis N. Tort Law, 4th ed. Toronto: Thomson Carswell, 2008.
Strayer, Barry L. The Canadian Constitution and the Courts, 3rd ed. Toronto: Butterworths, 1988.
APPEAL from a judgment of the Prince Edward Island Court of Appeal (Jenkins C.J.P.E.I. and McQuaid and Murphy JJ.A.), 2009 PECA 1, 282 Nfld. & P.E.I.R. 61, 868 A.P.R. 61, 304 D.L.R. (4th) 384, [2009] P.E.I.J. No. 3 (QL), 2009 CarswellPEI 3, in the matter of a reference concerning issues of whether the Province had various duties towards children allegedly sexually and physically abused while residing in a privately owned children’s home. Appeal dismissed.
Clinton G. Docken, Q.C., Reynold A. J. Robertson, Q.C., and Mark Freeman, for the appellants.
Denise N. Doiron, for the respondent the Government of Prince Edward Island.
Mark R. Frederick and David W. Hooley, Q.C., for the respondent the Prince Edward Island Protestant Children’s Trust.
Written submissions only by the intervener Susan M. Marshall.
No one appeared for the intervener Blair E. Ross.
The judgment of the Court was delivered by
Cromwell J. —
I. Introduction
[1] This appeal arises from a reference by the Lieutenant Governor in Council to the Prince Edward Island Supreme Court, Appeal Division (now the Court of Appeal). The reference asked the court for its opinion about whether the provincial government, in the period between 1928 and 1976, had certain duties toward children who had allegedly been physically and sexually abused while residing in a privately operated children’s home. The court opined that, subject to certain qualifications, there were no such duties and the appellants now contest that conclusion (2009 PECA 1, 282 Nfld. & P.E.I.R. 61). The Court of Appeal, in my respectful view, made no error and the appellants’ appeal ought to be dismissed.
II. Overview of the Facts and Proceedings
[2] The appellants are plaintiffs in an action in the Supreme Court of Prince Edward Island. This proceeding was brought against the Prince Edward Island Protestant Children’s Trust and the Government of Prince Edward Island (the “Province”). The appellants allege that they were physically or sexually abused as children while residing in the privately owned and managed Mount Herbert Orphanage, the legal name for which was the Prince Edward Island Protestant Orphanage or, from 1962, the Prince Edward Island Protestant Children’s Home (“Home”). Children were taken to the Home for care; some had been orphaned while others could not be cared for by their parents. The Home was closed in 1976 and its remaining assets were vested in the Prince Edward Island Protestant Children’s Trust. Both the Province and the Trust deny liability.
[3] Central to the appellants’ claims against the Province is that it had either a direct or indirect role in the Home’s operation, management and supervision and that this gave rise to various duties to its residents. The Province and the Trust take the position that the Home was privately operated and that the Province had neither a role in, nor any authority with respect to its operation, management or supervision.
[4] In an attempt to clarify the role and responsibilities of the Province in relation to the Home and its residents, the Lieutenant Governor in Council referred 21 questions to the Prince Edward Island Court of Appeal. This reference procedure, at the relevant time provided for by the Supreme Court Act, R.S.P.E.I. 1988, c. S-10, s. 18, permitted the executive branch to seek an advisory opinion from the appellate court of the Province (P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), at p. 8-16). The relevant parts of the section provided:
18. (1) The Lieutenant Governor in Council may refer any question to the Appeal Division for hearing and consideration.
(2) The Appeal Division shall certify its opinion to the Lieutenant Governor in Council, accompanied by a statement of the reasons therefor, and any judge who differs from the opinion may in like manner certify his opinion and reasons.
. . .
(7) The opinion of the court upon a question is deemed a judgment of the court, and an appeal shall lie therefrom as from a judgment in an action.
[5] The reference asked the Court of Appeal for its opinion as to whether the relevant legislation and other factors gave rise to various duties and responsibilities on the part of the Province in relation to the residents of the Home. In brief, the Court of Appeal was asked whether the Province: owed a general duty of care to the children placed in the Home; had any statutory duty to supervise the operation of the Home; was vicariously liable for the acts or omissions of the Board of Trustees, who were entrusted to operate the Home, or the volunteers or staff at the Home; owed a fiduciary duty to the residents of the Home; or had a non-delegable duty in respect of the care given to the residents of the Home. This proceeding did not address directly the rights of or the harm inflicted on the alleged victims, or the Province’s liability for the alleged abuse; it simply sought the opinion of the Court of Appeal concerning the Province’s duties, if any, to the children resident in the Home at the relevant times, based on the Agreed Statement of Facts and the legislation. The complete text of the 21 questions and the statement of agreed facts referred to the Court of Appeal are set out in an appendix to my reasons.
[6] I underline the point that the factual basis for the reference is quite limited. The record consists of a very brief statement of facts and a compendium of legislation. In light of this limitation, the opinion of the court is and must be understood to be based on the record provided to the court: B. L. Strayer, The Canadian Constitution and the Courts (3rd ed. 1988), at pp. 331-32. Moreover, the court has discretion to give qualified answers to, or to decline to answer, the reference questions if the record does not permit a definitive response: Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698, at para. 10; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at p. 545; Reference re Objection by Quebec to a Resolution to Amend the Constitution, [1982] 2 S.C.R. 793, at p. 806; and Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at paras. 26-30.
[7] The very limited factual basis for the reference impedes the Court in making definitive pronouncements about the issues raised to the point of putting the utility of the reference process in question. The Court of Appeal appropriately found that it had to limit the scope of its answers. It thus added two important qualifications to its general conclusion that the duties for which the appellants contend did not arise. The reference relates to the situation of the plaintiffs who, as noted, were residents of the Home between 1928 and 1976 and who were taken there primarily by their parents, family members, guardians or charities (Agreed Fact #6). The Court of Appeal found it necessary, however, to make distinctions among this group and these distinctions led the court to add the two qualifications to which I have just referred (paras. 85-93).
[8] First, 14 of the plaintiffs were placed in the guardianship of the Province between 1956 and 1964 while still resident in the Home (Agreed Fact #9). The Court of Appeal concluded that the Province owed a duty of care to those specific children for the period of the wardship (paras. 29-31, 89-93, and 138). The Province also owed these 14 children a fiduciary duty as wards during the period of the wardship (paras. 120-22 and 142). Second, between 1958 and 1962, 10 of the 14 plaintiffs just described were proposed for placement in the Home by a provincial employee, before they were accepted as residents (Agreed Fact #8). The Court of Appeal ultimately declined to give an opinion concerning a duty to these children. It reasoned the potential liability of the Province in connection with negligent placement of children was not before the court, as the reference questions and the Agreed Statement of Facts focussed on the duties of the Province to children as residents of the Home, rather than because of their placement by the Province in the Home (paras. 33, 85 and 137).
[9] These qualifications were not challenged in this appeal and what follows is subject to them.
III. Analysis
[10] The appellants contend that, contrary to the Court of Appeal’s conclusion, the child welfare legislation in force at the time, along with other factors, support the existence of various duties or liabilities owed to them by the Province. Their position may best be considered by answering four questions:
1. Did the Province owe a duty of care by virtue of the common law, its statutory authority and responsibility, or the doctrine of parens patriae?
2. Did the Province owe a non-delegable duty?
3. Was the Province vicariously liable for the acts or omissions of the Trustees, staff, or volunteers, working in the Home?
4. Did the Province owe a fiduciary duty to the residents of the Home?
[11] I will address these questions in turn.
A. Duty of Care in Negligence
(1) The Appellants’ Position and the Relevant Legal Principles
[12] As the Court of Appeal correctly noted, the appellants must establish either the duty of care for which they contend has been settled by existing authority, or that their case meets a two-stage test which is used to determine if a new duty of care should be recognized. Although the appellants maintain that their situation is analogous to cases in which a duty of care has been found, they do not contend, nor in my view could they, that their case is sufficiently similar to other decided cases so that it could be said that the existence of a duty of care to them is settled by authority. Thus, I agree with the Court of Appeal that their claim is based on a novel duty of care and must be assessed according to the two-stage test used to determine whether such duties should be recognized.
[13] That two-stage test was first enunciated in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), and later accepted and endorsed by this Court in Kamloops (City of) v. Nielsen, [1984] 2 S.C.R. 2. Since then, the Anns/Kamloops test has been applied by the Court in many cases including Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, Edwards v. Law Society of Upper Canada, 2001 SCC 80, [2001] 3 S.C.R. 562, Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, Childs v. Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643, Holland v. Saskatchewan, 2008 SCC 42, [2008] 2 S.C.R. 551, and Design Services Ltd. v. Canada, 2008 SCC 22, [2008] 1 S.C.R. 737. This test is the appropriate one even though the appellants mainly rely on statutory duties. Such duties do not generally, in and of themselves, give rise to private law duties of care. The Anns/Kamloops test determines whether public as well as private actors owe a private law duty of care to individuals enabling them to sue the public actors in a civil suit: see, e.g., Ingles v. Tutkaluk Construction Ltd., 2000 SCC 12, [2000] 1 S.C.R. 298, at para. 16; Ryan v. Victoria (City), [1999] 1 S.C.R. 201, at para. 22.
[14] The first step under the Anns/Kamloops test is to ask whether the relationship between the appellants and the respondents discloses sufficient foreseeability and proximity to establish a prima facie duty of care. If it does, the analysis moves to the second step which is concerned with whether there are residual policy considerations, transcending the relationship between the parties, that negate the existence of such a duty.
[15] The appellants submit that the Province had a duty of care to the children in the Home because its relationship to them was a type of paternalistic relationship of supervision and control analogous to that between a parent and child. They separate their submissions into distinct arguments about a duty of care arising at common law, by statute or by virtue of the parens patriae doctrine. However, in my view, all of these submissions must be considered in relation to the critical question of whether there was sufficient foreseeability of harm and sufficient proximity between the Province and the children living in the Home to give rise to a prima facie duty of care. Although the Court of Appeal found that the harm was not foreseeable, in my view the limited facts before the Court make it difficult to come to a decision about the issue of foreseeability. For example, we have no facts about what the Province knew or might reasonably be taken to have known at the time the alleged harm occurred. Accordingly, in my view, it is better to focus the analysis on whether there was sufficient proximity between the Province and the children in the Home.
[16] The question of whether there is sufficient proximity is concerned with whether the relationship between the plaintiff and defendant is sufficiently close and direct to give rise to a legal duty of care, considering such factors as physical closeness, expectations, representations, reliance and the property or other interests involved: Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41, [2007] 3 S.C.R. 129, at paras. 23-24 and 29.
[17] While the appellants rely heavily on the relevant statutory provisions, they also point to a number of other considerations which they say establish the necessary proximity between them and the Province. These factors include that the Province provided funding to the Home; that there was a parens patriae duty owed by the Province to the children in the Home; and that there were children in the Home whom the Province had proposed for placement there or for whom it had guardianship while they were residing there. Citing Carmarthenshire County Council v. Lewis, [1955] 1 All E.R. 565 (H.L.), and Ellis v. Home Office, [1953] 2 All E.R. 149 (C.A.), they say that their relationship to the Province is similar to the relationship between teachers and students, or prison officials and prisoners, both categories of cases in which a duty of care has been recognized. The parties place no reliance on any possible distinction between nonfeasance and misfeasance in their submissions on proximity.
[18] Before moving on to the relevant legislation, I note that in the Court of Appeal, the appellants relied on the fact of the regular presence in the Home of Dr. Beck, a psychiatrist in the employ of the provincial Department of Health, between 1964 and 1967. According to the Agreed Statement of Facts, Dr. Beck became involved with the Home on his own initiative as a volunteer and reported to the Board of Trustees, not the Province. Although he is said to have authored a report which he provided to the Board, containing recommendations regarding the future role and operation of the Home, there is no further information in the record about its contents (Agreed Fact #5). The Court of Appeal concluded that, on these facts, Dr. Beck’s involvement did not materially contribute to the appellants’ attempt to establish proximity between the Province and the residents of the Home. In this Court, the appellants have not pursued any arguments relying on the facts relating to Dr. Beck. I will therefore say nothing further about them other than that I see no reason to doubt the correctness of the Court of Appeal’s approach to this issue.
[19] I will now turn to the relevant legislation.
(2) The Legislation
[20] Whether sufficient proximity exists here turns mainly on the role of the Province in relation to the Home. This, in turn, is primarily a question of statutory interpretation although, as mentioned, the appellants rely on other factors as well in support of the existence of a duty of care on the part of the Province. The relevant legislation consists of the child welfare laws of the Province during the period and the statutes relating to the incorporation and operation of the Home. I will deal with these two types of legislation in turn.
(a) The Child Welfare Legislation
[21] During the period in issue, Prince Edward Island’s child welfare legislation effectively created a two-stream system of child welfare. One stream was essentially a private one. This private stream consisted of orphanages and children’s homes, like the one in issue here, which were operated by benevolent organizations. While some of these organizations received funding from the Province, on the face of the legislation they operated independently. As we shall see, contrary to the position advanced by the appellants and Ms. Marshall, who had intervener status before the Court of Appeal and made written submission in this Court, the legislation enacted by the Province during this period did not create any general duty of care towards children residing in the Home. The other stream was a public one, consisting of Children’s Aid Societies (or Child Welfare Agencies, as they were later called) which were approved by the Province under statute and were subject to statutory standards and obligations in relation to child welfare.
[22] Until 1961, the statutes do not support the appellants’ contention that the Province had any role in the operation, management or supervision of the Home. A more difficult question is whether this changed with the significant amendments made in 1961. However, for reasons I will set out below, my view is that these amendments did not fundamentally change the structure of the provincial child welfare scheme. It continued to consist of two streams, a public one and a private one, with the Home being part of the latter.
[23] My detailed review of this legislation follows.
(i) Legislation to 1961
[24] I will consider here two pieces of legislation: the child welfare legislation enacted in 1910 and in 1940. Both of these Acts were amended on a number of occasions. However, these amendments were not placed before the Court on the reference and no submissions have been directed to them. I will therefore not address the various amendments in my reasons other than in passing.
1. The 1910 Act
[25] The time period covered by the reference begins in 1928. At that time, the child welfare legislation in effect was The Children’s Protection Act of Prince Edward Island, S.P.E.I. 1910, c. 15. It provided for the appointment by the Lieutenant Governor in Council of the Superintendent of Neglected and Dependent Children, who was responsible for assisting in the establishment of Children’s Aid Societies (organizations whose object was the care and protection of children), and in visiting institutions where children were placed pursuant to the legislation. The 1910 Act provided for the creation and supervision of temporary homes or shelters for neglected children, and made provisions for the apprehension of neglected children, the selection of foster homes (by Children’s Aid Societies), the surrender of children by parents, and wardship.
[26] Contrary to the appellants’ submissions, the 1910 Act did not impose obligations on the Superintendent in respect of privately run institutions such as the Home. While the appellants are correct to point out that the Superintendent had statutory obligations in relation to establishing and advising Children’s Aid Societies (s. 3), there is no evidence that the Home was a Children’s Aid Society. Put another way, the Home was a privately run orphan or children’s home, not a provincially approved child welfare provider (i.e. a society approved by the Lieutenant Governor in Council for the purposes of the 1910 Act, s. 2(b)). Similarly, while the Superintendent had a statutory duty to direct and supervise the visiting of a place where a neglected or dependent child had been placed, this statutory duty only applied to children placed pursuant to the provisions of the Act (s. 3(d)). This included places in the public stream: temporary homes and shelters provided for under the Act by the municipal government (s. 5), Children’s Aid Societies, and foster homes. It did not include institutions such as the Home which were operated by third parties. The 1910 Act applied to such institutions only when the governing body agreed to become part of the public stream. There is no evidence that the Home did so. So, for example, an orphan or children’s home could be used as a temporary home or shelter under the Act, but only with the consent of the governing body of the orphan or children’s home (s. 5(2)). The consent of the governing body of an orphan or children’s home (operating as a temporary home or shelter under the 1910 Act) was further required for a Children’s Aid Society to supervise and manage the children there (s. 5(3)). However, as noted, there is nothing in the record to show that the Home ever did so.
[27] The appellants contend that the 1910 Act conferred on the Superintendent a right of inspection and that this provision in effect created a duty to inspect the Home (s. 13). However, as pointed out earlier in the discussion of s. 3(d), this right of inspection only applied to places where a child was committed for care under the provisions of the Act. There is no evidence in the record that any of the appellants were so committed.
[28] In short, the legislative scheme maintained two separate streams of child welfare, one private and one public. The Province only had roles and duties in relation to an institution in the private stream, such as the Home, if its governing body consented to the involvement of the Province. I conclude, as did the Court of Appeal, that on the record before the Court, the 1910 Act did not impose on the Province any statutory duties in relation to children residing in the Home. The statute thus does not support the existence of any proximity between those children and the Province by virtue of their residence in the Home at that time.
2. The 1940 Act
[29] The 1940 Act, entitled The Children’s Act, S.P.E.I. 1940, c. 12, repealed and replaced the 1910 Act, as well as the previous legislation dealing with financial support for deserted wives and children (The Deserted Wives’ and Children's Maintenance Act, S.P.E.I. 1932, c. 7). The 1940 Act, Part II, maintained the distinction between privately and publicly streamed institutions and the corresponding role of the provincial government (through the Superintendent, or as the office was later called, the Director of Child Welfare) as it existed in the 1910 Act. Nothing in the 1940 Act imposed any new duties on the Superintendent in respect of privately run orphan or children’s homes such as the Home. As in the earlier legislation, the Superintendent’s right of inspection of places where children were being cared for was only engaged when such children were placed there under the terms of the Act (s. 15). The 1940 Act also maintained the public/private streams that existed in the 1910 Act through the inclusion of provisions that required the consent of the governing body of private institutions, before the duties of the Superintendent would be engaged in relation to children in private care. Once again, an orphan or children’s home could be used as a temporary home or shelter for neglected children, but only when the governing body of the orphan or children’s home consented to such an arrangement (ss. 7(2) and 7(3)).
[30] I agree with the Court of Appeal that the 1940 Act “did not create any role for the Superintendent in the management, operation, or supervision of privately operated children’s homes or orphanages” (para. 15). Throughout the time when the 1910 and 1940 Acts were in force, there were in effect two streams of child welfare in the Province. Given that the Home was operated by a private organization (and not a publicly regulated one), and there is no evidence in the record that the Trustees consented to the application of the relevant terms of the Act to the Home, the Superintendent had no statutory duties or obligations with respect to the operation, management or supervision of the Home.
[31] The continuing relevance of what I have referred to as the private stream of child welfare is particularly clear in Part VI of the 1940 Act, headed “Adoption by Deed”. Binding transfers of guardianship were contemplated to be made by agreements in writing. There is specific provision in s. 107 for the assignment of guardianship of orphans and others to charitable institutions, refuges or homes, and that when this was done, the committee or managers of such institutions were deemed to be the legal guardians of the children. The significant point is that this process called for no involvement on the part of the courts, Children’s Aid Societies or the Superintendent.
[32] As in the case of the 1910 Act, the 1940 legislation did not give any statutory duties to the Superintendent/Director in relation to children residing in the Home.
[33] In 1950, Part II of the Act was substantially amended and renamed The Children’s Protection Act, S.P.E.I. 1950, c. 6, and later published in the Revised Statutes of 1951 (c. 24). These amendments were not part of the record on the reference and they were not included or mentioned in the materials and arguments put before this Court. The Court of Appeal adverted to the amendments and concluded that: “The scheme of the Act does not appear to extend . . . the role of the Director of Child Welfare to affect or be involved in the operations of an orphanage or children’s home operated by a board of trustees” (para. 18). In the absence of submissions to the contrary, I see no reason to doubt this conclusion.
(ii) The 1961 Act
[34] In 1961, The Children’s Protection Act was repealed and replaced by The Children’s Protection Act, 1961, S.P.E.I. 1961, c. 3. By this time, the Superintendent was known as the “Director of Child Welfare” and Children’s Aid Societies were known as “Child Welfare Agencies”.
[35] The appellants contend that the 1961 Act imposed a duty on the Director to inspect the Home. They go on to argue that this duty of inspection supports a finding of sufficient proximity between the Province and the children resident in the Home. However, my view is that the two premises of this submission are faulty. On a correct reading of the 1961 Act, it did not extend the scope of the Director’s duties in relation to privately run institutions such as the Home and even if it did, the bare duty to inspect is not a sufficient basis for a finding of proximity. As the Court of Appeal observed, the 1961 Act did not give the Director either responsibility or authority in relation to the operations of privately run institutions such as the Home. The 1961 Act was substantially amended in 1972. The appellants placed the 1972 amendments before the Court, but made no submissions with respect to them. I see no reason, therefore, to doubt the conclusion of the Court of Appeal that the 1972 amendments do not affect the matters in issue.
[36] As previously mentioned, the appellants submit that the 1961 Act imposed a duty on the Director to inspect the Home. The respondents disagree. The key provision is s. 3(2)(c), which sets out that the Director shall
inspect or direct and supervise the inspection of any institution established for the care and protection of children or place where a child is placed pursuant to the provisions of this Act;
[37] The appellants read this provision as applying to the Home, since it was an “institution established for the care and protection of children”. The respondents, however, read it as excluding the Home, since it was not an “institution established for the care and protection of children . . . pursuant to the provisions of this Act”. What separates the parties is the question of whether the limiting language at the end of s. 3(2)(c) — “pursuant to the provisions of this Act”— applies to both an institution established for the care and protection of children and a place where a child is placed, or whether it only applies to the latter.
[38] The text of the paragraph, read in isolation, supports both interpretations. In addition, the definition of “place of safety” in s. 1(n) refers to “an institution established for the care and