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Torts - Negligence - Reference - Residents of Prince Edward Island Protestant Orphanage seeking damages - Whether general duty of care, duty of supervision, vicarious liability, fiduciary duty or non-delegable duty arose.

In an action commenced in 2002, 57 persons who were at various times between 1928 and 1976 residents in the Prince Edward Island Protestant Orphanage sought damages against the Government and the Trust alleging physical and sexual abuse. The Government and the Trust denied liability. The plaintiffs’ assertion of Government liability was based on general duty of care, duty of supervision, vicarious liability, fiduciary duty, and non-delegable duty.

In that regard, the Lieutenant Governor in Council referred questions to the Appeal Division for hearing and consideration. The Reference and Questions for consideration are stated in Order-in-Council #EC2007-619 dated October 9, 2007. In this Reference, the Lieutenant Governor in Council of Prince Edward Island asked the Court of Appeal for its opinion on the application of those legal doctrines to an Agreed Statement of Facts.

The Court of Appeal certified the following answers. The Province did not owe a general duty of care to children placed in the Orphanage by parents, family members, guardians or charities as at 1928, and no such duty subsequently arose. The Province did not have any duty to supervise the operation of the Orphanage as at 1928, and no such duty subsequently arose. There was no legislation or common law that made the Province vicariously liable for the acts or omissions of the Trustees, volunteers or staff of the Orphanage as at 1928, and no such duty subsequently arose. The Province did not owe a fiduciary duty to the residents of the Orphanage by virtue of their being residents of the Orphanage as at 1928, and no such duty subsequently arose. This answer is subject to the qualification that the Province would have had a fiduciary relationship with and fiduciary duty as guardian to children who were its wards during the period of wardship. The Province did not have a non-delegable duty with respect to the care given to the residents of the Orphanage by the Trustees, volunteers and staff of the Orphanage as at 1928, and no such duty subsequently arose.