Canada: The Problem with Class Actions for Historical Sexual Abuse Cases (October 2018)

Last Updated: October 23 2018
Article by Loretta Merritt

Class Proceedings

In Ontario, class actions are governed by the Class Proceedings Act[1], (the "CPA"). Class actions allow an individual to advance a legal claim on behalf of two or more persons where common issues exist. The goals of class actions are judicial efficiency, improved access to justice for those whose claims might not otherwise be pursued, and behaviour modification (of those whose actions affect large numbers of people). The CPA came into force in Ontario on January 1, 1993. The CPA outlines the legal requirement for a claim to be certified by the court as a class action: 1) a valid cause of action, 2) an identifiable class of two or more people, 3) common issues, 4) a representative plaintiff and 5) the Court must be satisfied that a class proceeding is a preferable procedure for resolving the common issues. The CPA also provides the procedural framework for the prosecution of these claims including rules regarding notice, settlement, lawyers' fees, etc.

Class action legislation developed as a result of product liability cases. The CPA provides an effective procedure to obtain a remedy for product liability claims that affect many people, particularly where the individual claims are small as compared to the significant cost of legal fees in a lawsuit. For example, if there is a defect in a small car part, a class action may be appropriate and preferable to individual lawsuits. Recently, there have been several cases in which class actions have been certified for claims arising out of historical sexual abuse in institutions and, in particular, claims against private schools, religious organizations, and government run facilities. While there may be some advantages to pursuing historical sexual abuse claims by way of a class action, there are also distinct disadvantages.

Class Proceedings in Historical Sexual Assault

In a class action, the class members (i.e., the people who have a claim to damages) have a very minor role to play, are not involved in instructing the lawyers or making decisions about how the case proceeds and have no input into settlements. Class members are usually not involved until the last stage of the case where their individual damages are determined. Conversely, if those persons hired a lawyer and brought their own lawsuit the client is the one making decisions and instructing the lawyer. For sexual abuse survivors, legal cases are usually about more than just money. They are about coming forward, being heard and acknowledged and holding people to account, as well as gaining a sense of justice and closure. In a class action these goals can get lost. Also, in sexual abuse class actions the quantum of damages is usually much lower than the recovery in an individual action. So, to the extent that a sexual abuse survivor wants to maximize their financial recovery, an individual action is usually a better option.

The certification of historical institutional abuse cases as class actions began with the Rumley[2] case in British Columbia. There, the court certified a class action for abuse survivors from the Jericho Hill School for the Deaf.  The government ran the school and had already set up a compensation scheme for those abused at the school.  The government's compensation scheme had a maximum payment of $60,000 for each abuse victim. In considering whether or not to certify the case as a class action, the court specifically said that $60,000.00 was too low a cap on damages in 2001.  The case was ultimately settled for compensation of up to a maximum of $125,000.00 per class member.  Unfortunately, class members in institutional abuse cases in Ontario have not fared nearly as well.  For example, in 2010 the Johnston[3] case settlement caped the abuse victims' compensation up to a maximum of $50,000.00 per class member.  However, the lawyers were awarded legal fees in the amount of $1,118,499.64.

In the Huronia[4] and related cases[5], the maximum compensation to the abuse victims was even lower.  In the Huronia cases, the settlement agreement arranged by the class's lawyers provided for maximum compensation of up to $35,000.00 per class member.  However, the average actual payment to survivors was only $3,711.22.  The lawyers got legal fees of over $16 million dollars.

In the Seed[6] case which involved abuse at the Ross MacDonald School for the Blind (Ontario School for the Blind), the settlement package provided for compensation up to $37,500.00 per class member.  However, only 181 class members actually received compensation for an average payment of $16,285.00.  The lawyers got legal fees of $2,520,000.00 plus disbursements and HST.

One interesting thing about these institutional abuse cases in Ontario is that aggregate damages have never been awarded or paid as part of a settlement package in these cases.  Aggregate damages are damages paid to class members for having been at the school or institution but who were not specifically abused.  Although aggregate damages are identified as a common issue to justify certification of the case as a class action, in the Ontario class action settlements, the settlements have provided for damages only for those who were actually physically or sexually assaulted, no aggregate damages.  Therefore, one of the principal justifications for certifying the dispute as a class action is undermined in those settlements.

In one recent class action for institutional abuse, the judge has expressed his concern about the settlement and legal fees.  In the Welsh[7] case, Justice Perell expressed great disappointment and disapproval of proposed settlement which provided that ninety percent (90%) of the class members would get no compensation, no apology, or anything at all (even indirectly).  The lawyers basically admitted that aggregate damages were not available in law and only those who were actually physically or sexually assaulted could receive compensation.  Perell. J approved the settlement reluctantly because he felt the alternative of forcing the case to trial would be even worse for the survivors.  He also disapproved of the legal fees.  In fact, he ordered that lawyers donate $1.5 million dollars of their $3.75 million legal fee to a charity or charities for the deaf.  The case is under appeal including the court's order that the lawyers contribute to a charity. 

Individual Actions for Sexual Assault

On the other hand, if survivors of historical institutional abuse sue in individual actions with their own lawyer, the damages are much greater and can be in the six figure range. In several cases compensation of between $100,000.00 and $200,000.00 or more was awarded at trial[8].  In individual cases, personal injury lawyers often work on a contingency basis taking a percentage of the damages recovered. This means abuse survivors do not have to pay legal fees up front or as they go along.

There are other even bigger problems with class action for abuse institutional cases; namely notice and opting out. Class actions are commenced by a representative plaintiff bringing a motion to the court to have the class action certified. Once this is done, the court sets a procedure to ensure that all people who are members of the class and who are entitled to compensation get notice and are given the right to "opt out" in order to maintain the right to pursue an individual lawsuit at some future time. Class members "opt out" by coming forward and saying they do not want to be part of the class action. A time limit is set and if class members do not opt out by the specified date, they are deemed to be included in the class. Next, there is a trial of the common issues (often "liability" or legal responsibility is a common issue) and after the trial of the common issues, there are individual damages trials. It is at this point class members need to come forward and pursue their individual claims for damages. If they fail to come forward, they are forever prohibited from pursuing compensation.  The only way they can pursue an individual lawsuit is if they come forward before the "opt-out" deadline and follow the procedures set out by the Court for opting out within the opt-out deadline at the beginning of the class action.  If they do neither, they get nothing.

Sexual abuse survivors usually suffer serious psychological problems as a result of their abuse in childhood. There are also well established links between childhood sexual abuse and substance abuse problems, problems with education and employment and criminal activity in later life. Many abuse survivors become homeless, move around the country or are "off the grid". In addition to the long passage of time in historical abuse cases, these other problems can make it difficult, if not impossible, to reach significant numbers of victims when the judicial notice of the class action is given. If a class member does not receive notice he or she has no opportunity to "opt-out" and his/her right to seek compensation, or to be heard and acknowledged will be forever lost.

Even if class members do get notice of the class proceeding, the "opt out" procedure in class actions is especially troublesome in historical sexual assault cases. It often takes abuse survivors 20, 30, or 40 years or even longer to come forward. There are many reasons why sexual abuse survivors do not come forward including misplaced shame, guilt and fear of coming forward, or simply a desire to avoid thinking about and confronting the horrendous pain they suffered. The importance of allowing abuse survivors to come forward in their own time was recently acknowledged by the Ontario government when it enacted Bill 132 amending the Limitations Act, 2002 to eliminate limitation periods for cases based on sexual assault. This amendment is a clear message to abuse survivors that their claims are important and that justice should not be rendered unavailable to them simply because it has taken them time to be ready to address the issue legally. The elimination of limitation periods provides more access to justice for abuse survivors. Conversely, class actions for historical sexual abuse claims require survivors to come forward and opt out or risk forever having their claims extinguished. In my view, any law or rule that requires an abuse survivor to come forward at a specific time is potentially harmful and contrary to the public interest expressed by the Ontario government in amending the Limitations Act.

In order to exercise the right to opt-out and preserve their right to bring an individual claim for damages, the abuse survivor must do all the following:

  1. They must receive the notice;
  2. They must understand the notice;
  3. They must be ready to admit to themselves that they have been abused and be willing to admit to strangers that they have been abused;
  4. They should get legal advice on whether an individual action or a class action settlement is a better option for them;
  5. They must make that decision about which is a better option before they know what the settlement will actually be; and
  6. They must send a letter or complete a form to be sent to the class action lawyer to exercise their right to opt-out.

For the average person, being told they are part of a lawsuit they knew nothing about and having to follow this process is bewildering.  Imagine the distress for an abuse survivor who is not ready to admit to themselves that they are a survivor of childhood sexual abuse, yet alone tell anyone else about it.

One of the goals of class actions is judicial economy.  Now that the law of vicarious liability is clear, we know institutions are liable for assaults committed by employees in residential care facilities.  This is not a significant common issue.  Where there are significant common issues such as whether the Government or the school is the proper defendant, a class action may be appropriate to determine that discrete issue.  However, where it is clear who ran the institution, then really the issue comes down to whether a particular individual was abused, the amount of their losses and damages.  In such cases, there is no significant judicial economy achieved by certifying the case as a class action.

It is usually in an institutional defendant's interest to have a class action. In Ontario, if a historical institutional abuse class action is certified, the defendant will enjoy the opportunity to pay pennies on the dollar for those who come forward and collect damages under the class proceeding. To extent that the money they have put up as settlement fund is not actually paid out, it is usually returned back to the defendant.  As well, for all the other abuse survivors who have not come forward to collect their money under the class action and have not already opted-out, the defendant enjoys the benefit of having all those claims extinguished and minimizes their liability to pay what would otherwise be valid claims.

One way to reconcile the difficulty presented by the "opt out" provision with the benefit of a class proceedings would be to have an "opt-in" provision for historical institutional abuse cases. In this way, potential class members who are notified of the class proceeding would have the choice of either coming forward, opting in and becoming part of the class action or staying silent and not having their claims extinguished. If the abuse survivor was not ready to come forward, he or she could stay silent and still preserve their right to pursue an individual action at a future time should they become ready to do so.

Arguably, a legislative amendment is necessary to provide for an "opt-in" provision. In the interim, at a minimum class counsel should be required to advise potential class members to get independent legal advice (ILA) before making a decision whether or not to "opt-out". The notice should contain a statement that most personal injury lawyers work on contingency and give free consultations. Adding such a provision to the notice will not help abuse survivors who do not receive the notice or those who get the notice but are still as yet unable to speak about the abuse, but it may help people who are ready to come forward to better understand the advantages and disadvantages of class actions vs. individual lawsuits. The notice should also provide information about the new program whereby sexual abuse survivors who are 16 years of age, were assaulted in Ontario and live in Toronto, Ottawa or Thunder Bay are eligible for a certificate for 4 hours of free legal advice.


[1] Class Proceedings Act, 1992, S.O. 1992, c.6

[2] Rumley v. BC, 2001 SCC 69

[3] Johnston v. The Sheila Morrison Schools, 2010 ONSC 3334 and 2013 ONSC 1528

[4] Dolmage v. Ontario and Slark v. Ontario 2010 ONSC 1762 and 2013 ONSC 6686 ) (Huronia Regional Centre)

[5] Clark v. Ontario and McKillop v. Ontario, 2014 ONSC 1282 (Rideau Regional Centre), Bechard v. Ontario 2014 ONSC 1282 (Southwestern Regional Centre)

[6] Seed v. Ontario, [2017] O.J. No 2958 (Sup. Ct.)

[7] Welsh v. Her Majesty the Queen, 2016 ONSC 5319 and 2018 ONSC 3217

[8] D.W. v. Canada (Attorney General) [1999], S.J. No.: 742 and E.B. v Order of the Oblates of Mary Immaculate in the Province of British Columbia, [2001] B.C. J. No.: 2700 and T.W.N.A. v. Clarke, [2001] B.C.J. No.: 1621 and W.R.B. v. Plint, [2001] B.C.J. No.:1446.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Loretta Merritt
Similar Articles
Relevancy Powered by MondaqAI
Bennett Jones LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Bennett Jones LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions