Canada: Divisional Court Applies Supreme Court’s Guidance On Preferability And Certifies Claim Against Religious Boarding School

Last Updated: April 1 2014
Article by Gillian Hnatiw

In Cavanaugh v. Grenville Christian College ("Cavanaugh"), a group of former students from an Anglican boarding school have alleged that they were subjected to systemic physical and psychological abuse to promote and indoctrinate them into the teachings and practices of the Community of Jesus.  They commenced a class action on behalf of all former students of the school who, they alleged, were subject to similar abuse and sought damages for breach of fiduciary duty, negligence, assault, battery, and intentional infliction of mental suffering.

The Certification Motion – Denial at First Instance

At first instance, Justice Perell declined to certify the class proceeding on the grounds that a class action was not the preferred procedure.  He pointed to the fact that much of the evidence from the common issues trial would have to be repeated during individual trials in order for each class member to prove causation and their individual damages. Instead, Justice Perell directed that the action commenced by the five representative plaintiffs could continue as a joinder of their claims.  He further directed that other former students could commence individual claims to be managed in a process similar to that employed in Hudson v. Austin, wherein the decision dismissing the certification motion was suspended for 6 months to allow plaintiff's counsel to prepare a revised litigation plan and enable members of the putative class to opt to participate in a case managed group of related individual actions (as described in greater detail "When Class Proceedings and Case Management Intersect"). The plaintiffs were then ordered to pay costs of certification in the amount of $300,000.

The Appeal – Certification Granted

On February 24, 2014, the Divisional Court released its decision overturning Justice Perell's ruling (Cavanaugh, 2014 CanLII 7350 (ON SCDC)).  Writing for a unanimous Court, Justice Rady held that Justice Perell had erred both in his analysis of the preferable procedure and in unilaterally imposing an alternative procedure for managing present and future claims.

First, the court found that Justice Perell erred by focusing on the volume of common issues versus individual issues, which led him to conclude that the former would be overwhelmed by the latter.  In so doing, he failed to consider the other criteria relevant to the preferability criteria as discussed by the Supreme Court in its recent decision in AIC Limited v. Fischer, (see, "The Supreme Court Holds that Preferability May Hinge on Substantive Access to Justice"). 

In AIC Limited, the Supreme Court noted that the preferability analysis must be conducted through the lens of the three principled goals of class proceedings and set out five questions to be answered in determining the access to justice issue:

  • What are the barriers to justice?
  • What is the potential of the class proceeding to address those barriers?
  • What are the alternatives?
  • To what extent do the alternatives address the barriers to justice?
  • How do the two proceedings compare?  

Justice Perell did not have the benefit of the decision in AIC Limited when he decided the certification motion and thus did not address these questions when analysing the preferability issue. In now considering them, the Divisional Court found that there was a powerful economic barrier to access to justice in the case and pointed to the $300,000 costs award on the certification motion as evidence of the fact that "most individuals cannot afford to pursue litigation on this scale".  The Divisional Court also found that a class proceeding would enable the litigation to advance in a significant way and the discovery process to be streamlined through the resolution of the common issues.  Experts would testify once, thus promoting judicial economy and access to justice, and the risk of inconsistent outcomes would be avoided.  A class action would also resolve important common issues including the history of the school, duties owed to the class members, and practices and policies of the school, all of which would advance and streamline the trials of the individual claims.

The Divisional Court also addressed Justice Perell's concern that not every class member suffered the same, or even any, of the abuse alleged.  In dismissing this concern, the Divisional Court simply noted that individuals whose claims did not fit into the framework of systemic abuse would have the option of opting out.

Secondly, the Divisional Court found that Justice Perell had erred by imposing a "class management" procedure which was not advanced by the defendants and on which neither party made submissions.  A judge ought not to grant relief for which no request was made and no submissions heard.

Looking Forward

Cavanaugh has now been certified and will proceed to litigation on its merits.  The original costs order, cited as evidence of the significant economic barrier to access to justice, was also amended and the defendants/respondents ordered to pay the plaintiffs $150,000 in costs on the original motion and $35,000 for costs of the appeal.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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