Case information

None.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In the late 1800s, the federal government commenced and developed a residential school system, which it operated in “partnership” with various religious organizations. One such partnership was with the Diocese of Sault Ste. Marie, who in turn retained the Appellant Jesuit Fathers to operate and administer the Garnier Residential School for Boys. This school would draw aboriginal youth from reserves throughout the province of Ontario. The Jesuits operated the school from 1913 until its closure in 1958. The school was referred to, or more popularly known as, the “Spanish Residential School”, given its proximity to the town of Spanish, Ontario.

In the early 1990s, allegations of physical and sexual abuse committed by specific Jesuit brothers against aboriginal children started to emerge. Initially, these allegations were quite broadly framed and were not focused on the Spanish Residential School (“Spanish”) per se. The Jesuits took steps to investigate these allegations and acquired over time progressively more detail of allegations specific to the school.

The Guardian Insurance Company of Canada (“Guardian”) had provided insurance coverage in the form of a comprehensive general liability policy and an umbrella policy from September 30, 1988 onwards through a series of renewals until September 30, 1994. In the comprehensive general liability policy Guardian agreed to “pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages, because of injury arising out of the rendering of, or failure to render professional services in the practice of the Insured’s profession, provided however, that coverage as provided herein shall apply only to claims which are first made against the Insured during the policy period …”.

In the early months of 1994, the Spanish allegations came to something of a dénouement in that a former resident, Peter Cooper, had retained a lawyer to write seeking redress from the Jesuits, and counsel for the Jesuits wrote to Guardian reporting as to what had emerged as to allegations with respect to both named and unnamed perpetrators and complainants. The Cooper claim was not formalized until after the expiration of the Guardian policies (indeed Guardian did not renew the coverage). The Cooper Statement of Claim was one of approximately a hundred such claims, all alleging that the Order was negligent in its administration of Spanish.

The Jesuits applied for a declaration that Guardian is required to defend and indemnify them for these claims. The primary basis for the declaration sought is that administration of the school comes within “the provision of professional services” within the meaning of the policy. Whitten J. held that there was no duty to defend for claims made after the expiration of the policy period based on plaintiffs neither discovered nor reported in the policy period. The Court of Appeal dismissed the Appellant’s appeal.