



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Aksidan 
          v. Canada (Attorney General),







2008 
          BCCA 43



Date: 20080205

Docket: CA034320

Between:

Francis 
    Aksidan, Jacob Aksidan, Harold Barton Jr., Cheyenne Doolan,

Craig Nelson, 
    Vernon Stephens, George Stevens, Raymond Stewart Jr.,

Troy Stewart, 
    and Trent Watts

Appellants

(
Plaintiffs
)

And

The 
    Attorney General of Canada

Respondent

(
Defendant
)




Before:


The 
          Honourable Mr. Justice Mackenzie




The 
          Honourable Madam Justice Levine




The 
          Honourable Mr. Justice Chiasson








I. 
          Lawson


Counsel for the Appellants




M. 
          Shea and

R. 
          Schipizky


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




January 21, 2008




Place 
          and Date of Judgment:


Vancouver, British Columbia




February 5, 2008








Written 
          Reasons by
:




The 
          Honourable Mr. Justice Mackenzie




Concurred 
          in by:




The 
          Honourable Madam Justice Levine

The 
          Honourable Mr. Justice Chiasson



Reasons 
    for Judgment of the Honourable Mr. Justice Mackenzie:

[1]

This is an appeal from a judgment dismissing the appellants claims 
    against Her Majesty the Queen in Right of Canada (Canada) for damages for 
    sexual assault.  The six appellants were sexually assaulted by Michael
Henley,
a teacher at Nathan Barton Elementary School (the School) 
    in Kincolith, British Columbia,
between 1979 and 1983, while they were elementary school 
    students at the School.  The appellants are all male aboriginal persons and 
    Indians as defined by the
Indian Act
,
R.S.C. 1985, c. I-5.  The claims against Canada arise 
    out of that status and the duties of Canada under the
Indian Act
.

[2]

The School was located on the Kincolith reserve and at all material 
    times it was operated by School District No. 92 (Nisgaa), (SD92), under 
    British Columbia legislation.  Kincolith was an isolated community at the 
    time, located near the mouth of the Nass River on the north-western coast 
    of British Columbia, and the aboriginal residents of Kincolith are members 
    of the Nis
g
aa Nation.  The School was never a residential school and 
    all of the appellants were day students living at their homes in Kincolith.

[3]

Henley pleaded guilty 
    in 1999 to sexually assaulting the six appellants.  He was joined with SD92 
    and Canada as defendants in the action now on appeal.  Shortly before trial, 
    the claims against Henley and SD92 were settled and the trial proceeded solely 
    on the issue of Canadas liability.  Issues of damages were deferred and, 
    as the assaults were admitted, none of the appellants were required to testify.

[4]

Henley was hired by SD92 and taught at the School from September 1979 
    until May 1983.  He had previously taught aboriginal children at a school 
    in Lillooet, and came with a favourable letter of reference.  He did not have 
    a criminal record until 1990, and the trial judge found there was nothing 
    in the evidence to suggest any adult person in Kincolith, other than Henley, 
    knew or even suspected the risk of sexual assault until an unnamed student 
    made a complaint about Henley in May 1983.  Henley resigned his position and 
    left Kincolith within a week of the complaint, after either the principal 
    or the school superintendent advised him that he should resign.  The complaints 
    by the appellants (and four other plaintiffs whose claims have been deferred) 
    gradually came to light over a period of years thereafter.

[5]

The sexual assaults all occurred in
Henleys apartment in the teacherage associated with the School.  The School 
    and the teacherage had been constructed on the reserve in 1978.  Canada paid 
    for the cost of construction and maintenance, while SD92 managed the School 
    and the teacherage, maintained and repaired the buildings, determined who 
    could reside in the teacherage and set and collected the rents.

[6]

SD92 did not have 
    any rules that prohibited teachers from allowing children of elementary school 
    age to visit or sleep overnight at the teachers residence.  Two of the appellants 
    slept over at Henleys apartment.  Henley required written permission from 
    a childs parents for sleepovers.

[7]

For many years preceeding the events in question, Canada had operated 
    and maintained an elementary school for the education of aboriginal children 
    in Kincolith.  In 1969, Canada entered into an omnibus agreement with British 
    Columbia (the 1969 Agreement) which provided for the delegation to the Province 
    of educational responsibilities for aboriginal children within the jurisdiction 
    of Canada under the
Indian Act
.  Under the 1969 Agreement, British 
    Columbia established SD92 by Order in Council, effective 1 January 1975.  
    This followed a petition to the Province from the Nisgaa Tribal Council for 
    its own school district; the Kincolith Band Council asked to join SD92 by 
    resolution dated 15 November 1974.  Thereafter, SD92 undertook the education 
    of the aboriginal children of Kincolith.

[8]

A new school, Nathan Barton Elementary School, and a new teachers 
    residence were constructed on reserve lands in Kincolith in 1978.  As noted 
    above, Canada paid for the construction of the buildings, and has continued 
    to pay for the buildings maintenance and for a significant portion of the 
    operational costs of the School.  The Band Council transferred a parcel of 
    land on the reserve to Canada for the teacherage and Canada held title to 
    that parcel in trust for that purpose.

[9]

The trial judge dismissed the appellants action.   He found that the 
    risk a teacher would sexually assault a student at the School or the teacherage 
    was not reasonably foreseeable by Canada when responsibility for the School 
    was delegated, and there was no evidence that any adult in Kincolith (apart 
    from Henley) actually knew or suspected the risk existed during the material 
    time period.  The appellants submit that the trial judges conclusion was 
    in error and the risk was reasonably foreseeable.  In my view, it is not necessary 
    to decide this issue as the appeal must fail on other grounds.

[10]

SD92 administered the School under the umbrella authority delegated 
    by Canada to British Columbia in the 1969 Agreement.  The
Indian Act
, 
    s. 113(1) [now s. 114(1)] authorized the Government of Canada to make such 
    agreements.  The 1969 Agreement purports to delegate an exclusive jurisdiction 
    over the education of Indian children to the Province in schools subject to 
    the 1969 Agreement, including jurisdiction over the employment and supervision 
    of teaching personnel.  Clause 2 reads:

2.         
    The PROVINCE shall have complete and exclusive jurisdiction over the administration, 
    control and operation of all schools in which Indian children are enrolled 
    under the terms of this Agreement, including the employment and supervision 
    of teaching personnel and all matters relating to the curriculum, methods 
    of instruction and materials used for instruction in such schools, it being 
    understood and agreed that the exercise of such jurisdiction by any Board 
    of School Trustees established pursuant to the Public School Act of British 
    Columbia in respect of any such school shall, as between the parties hereto, 
    be deemed to be the exercise of jurisdiction by the PROVINCE.

The 
    delegation of jurisdiction is on its face comprehensive and exclusive, and 
    leaves no residuary supervisory jurisdiction with Canada.

[11]

Canadas authority to delegate jurisdiction over the education of Indian 
    children in schools under s. 113(1) was considered by the Supreme Court of 
    Canada in
Blackwater v. Plint
, 2005 SCC 58, [2005] 3 S.C.R. 
    3 [
Blackwater

cited to SCC].  Agreements made under s. 
    113(1) do not necessarily leave Canada with a residual non-delegable duty 
    to ensure the safety and welfare of Indian children in schools:
Blackwater
at para. 50.  The facts of
Blackwater
involved a residential 
    school where Canada exercised sufficient control over the school to be held 
    vicariously liable (together with its co-defendant the United Church of Canada) 
    for the sexual assaults of children committed by a school employee.  In the 
    case at bar there is no suggestion that Canada is vicariously liable for the 
    assaults of Henley.  He was an employee of SD92 who hired him and supervised 
    all aspects of the employment relationship and school administration, including 
    Henleys residence in the teacherage.

[12]

The appellants accept
Blackwater
stands for the proposition 
    that there is no non-delegable duty on Canada inherent in the exercise of 
    the power to make agreements under s. 113(1).  The appellants submission 
    is that Canada did not delegate all of its supervisory responsibilities for 
    Indian children at the School to the Province and its agency, SD92, under 
    the terms of the 1969 Agreement, and that Canada retained a residuary duty 
    of care for the safety and welfare of Indian children at the School that was 
    breached in this case.

[13]

The appellants contend that the broad delegation in clause 2 is subject 
    to two qualifications.  First, they contend that Canada funded the construction 
    of the School and the teacherage, and the teacherage (where the assaults occurred) 
    was located on reserve lands granted by the band to the federal Crown for 
    that purpose.  Second, they contend that clause 7 of the 1969 Agreement contemplated 
    lease agreements between Canada and provincial school boards for school buildings 
    administered, operated and maintained by school boards, and there was no lease 
    to SD92 of the School or teacherage.

[14]

In my view, these factors do not qualify the terms of clause 2 to the 
    extent that Canada retained a school-related duty of care for Indian children 
    that has any application in the circumstances of this case.  There is no suggestion 
    that any lack of funding by Canada was a contributing factor to Henleys assaults.  
    Canada retained title to the reserve land on which the teacherage was located, 
    in trust, but it exercised no control over the building.  Control over all 
    aspects of the School and teacherage administration and supervision was exercised 
    by SD92.  While there was no formal lease under clause 7, SD92 exercised exclusive 
    control of the premises consistent with that of a lessee.  SD92, and not Canada, 
    was the occupier for the purposes of the
Occupiers Liability Act
, 
    now R.S.B.C. 1996, c. 337.  I do not think that the fact that Canada held 
    title to the land in trust and there was no formal lease to SD92 imposes any 
    greater duty of care on Canada.

[15]

The appellants contend that Canada should have imposed a regulation 
    that teachers be prohibited from allowing elementary school students to visit 
    them in their residence at the teacherage.  In my view, the duty to have considered 
    such a regulation was a matter within the parameters of school administration 
    exercised by SD92 under the 1969 Agreement and cannot be regarded as a matter 
    of such importance and urgency that Canada was duty-bound to require it, notwithstanding 
    SD92s jurisdiction.  Such an obligation would involve an oversight role indistinguishable 
    from the non-delegable duty rejected in
Blackwater
.

[16]

Following
Blackwater
, a duty of care depends on the degree 
    of control and there is no duty of care in the absence of any control.  In 
    the instant case, control of all aspects of education at the School was delegated 
    by Canada to the Province to be exercised by school boards established under 
    the
Public School Act
.  There is no suggestion that this delegation 
    was unreasonable and that Canada breached its duty to Indian children by making 
    the 1969 Agreement or by including the terms of clause 2.  In my view, the 
    complete delegation of control of all aspects of education precludes any residual 
    degree of control in Canada that could support a duty of care applicable to 
    the circumstances of this case.

[17]

The appellants advance alternative claims for breach of fiduciary duty.  
    Chief Justice McLachlin in
Blackwater
, at para. 57, outlined 
    fiduciary duty as a trust-like duty, involving duties of loyalty and an obligation 
    to act in a disinterested manner that puts the recipients interest ahead 
    of all other interests.  The appellants rely on
Nocton v. Lord Ashburton
, 
    [1914] A.C. 932, [1914-15] All E.R. 45 (H.L.) at 51-53, for the proposition 
    that fault is not an essential element of constructive fraud, which the appellants 
    allege as the basis of the cause of action.  Irrespective of the soundness 
    of that proposition, the facts of this case do not support a claim for constructive 
    fraud.  Here there is no basis for any imputation that Canada failed to act 
    disinterestedly in the interests of Indian children in making the 1969 Agreement 
    with the Province.  The Province under clause 3 was committed to providing 
    education for Indian children on the same terms and conditions as non-Indian 
    children under provincial legislation.  Canada has continued funding related 
    to their education generally and specifically with respect to the School in 
    Kincolith.  The School is a community school without the overtones of residential 
    schools where abuse was regrettably widespread.  In my view, the delegation 
    of control of education to the Province under the 1969 Agreement, together 
    with the funding provisions, fulfilled Canadas fiduciary duty generally and 
    there was no dishonesty or disloyalty by Canada that could engage a residual 
    fiduciary duty on the facts of this case.

[18]

Henley was employed by SD92 and any vicarious liability for his assaults 
    rests with SD92 together with any liability for breach of a supervisory duty 
    of care.  There are no policy reasons why Canada should be implicated where 
    control of all aspects of education has been reasonably delegated to provincial 
    authorities.  The duty of care connected to the education of Indian children 
    accepted by the Province should not be obscured by claims of vague residual 
    responsibilities of Canada.

[19]

In my view, the delegation of exclusive control by Canada to the Province 
    under the 1969 Agreement is a complete answer to the claims of the appellants 
    and I would dismiss the appeal on that ground.

The Honourable Mr. Justice Mackenzie

I AGREE:

The Honourable Madam Justice Levine

I AGREE:

The 
    Honourable Mr. Justice Chiasson


