In Cavanaugh et al. v. Grenville Christian College et al., 2021 ONCA 755, a unanimous Court of Appeal upheld a decision answering five common issues in the plaintiffs' favour. This was a resounding win for the class.
Class proceedings rarely go to trial. In addition to being a rare common issues trial decision, Cavanaugh offers a valuable look at the Court of Appeal's approach to evidence in a systemic negligence case with a decades-long class period.
Abuse at Grenville Christian College
The class members in Cavanaugh were students who had suffered physical and psychological abuse at Grenville Christian College, an Anglican boarding school. The class period began in 1973, when the school introduced a new operational program inspired by a religious organization called the Community of Jesus (COJ).
The school implemented strict disciplinary measures based on the practices of the COJ, including excessive use of corporal punishment; demeaning and dangerous work duties for students "on discipline"; public humiliation; repressive teachings about sex and sexual orientation; and tactics designed to terrorize students, such as bringing them close to furnace flames and telling them that they will go to hell.
Although it was not certified at first instance (2012 ONSC 2995), the Divisional Court (2014 ONSC 290) certified the proceeding against the school and two school officials, finding that the motion judge erred in his preferable procedure analysis. While the motion judge had found that the common issues would inevitably be re-litigated at the individual trials stage, the Divisional Court found that the common issues trial would necessarily involve matters affecting all class members: the school's history; its practices and policies; and the systemic breach of duty. The proceeding was certified.
After the five-week common issues trial (2020 ONSC 1133), Justice Leiper for the Superior Court found that the defendants had breached the fiduciary and tort law duties they owed to the class, and that punitive damages were appropriate.
In deciding in the plaintiffs' favour, Justice Leiper relied on the evidence from Dr. Rosemary Barnes, the plaintiffs' psychology expert, who gave evidence about the risks of keeping children in "total institutions", i.e., institutions where "children live apart from their families for extended periods of time and are completely reliant on institutional staff for care, guidance, protection, instruction and discipline."1
At trial, Dr. Barnes listed characteristics of a total institution which can lead students to feel "disconnection, degradation or powerlessness." These included arbitrary orders; rules governing almost every aspect of daily life; students having little say about rules and administration; and no right to appeal or protest. These are exacerbated by excessive or arbitrary punishment. Justice Leiper found that Grenville Christian College was a total institution.
Dr. Barnes then addressed a series of impugned practices at the school, finding them systemic and falling below the standard of care. Dr. Barnes described the school's practices as "spurning", "terrorizing", "isolating" or "exploiting" the students, foreseeably causing harm.2 The court found that, though some children may have "resiliency factors" or other factors mitigating the impact of abuse, this would not diminish the defendants' liability for harms caused by operating below the standard of care.
Justice Leiper also considered expert evidence from Dr. Paul Axelrod, who opined on the standard of care for Ontario schools during the class period. Dr. Axelrod referred to reforms in the 1960s, which set the standards in place during the class period.3 Dr. Axelrod opined that the impugned practices did not meet the standard of care during the class period.4 The trial judge agreed. The defendants appealed.
Systemic negligence, not individual negligence "writ large"
The appeal focused largely on systemic negligence.5 A central argument was that "this was an individual abuse trial "writ large" and that the trial judge, in finding systemic negligence, ascribed individual witnesses' experiences to the class.6
The Court of Appeal rejected this argument, finding that the trial judge properly focused on whether the school's operations breached the duty owed to the class.
The defendants advanced two main evidentiary points, both rejected by the Court of Appeal:7
- The trial judge erred in relying on Dr. Barnes' evidence;8 and
- The trial judge erred in rejecting the defendants' evidence about the school's operations.
On the first point, the defendants argued that Dr. Barnes had not opined on what would have constituted abuse during the class period because she had used terminology drawn from documents published in 2016 and 2020.9
The Court of Appeal rejected this argument: at trial, the defendants brought no evidence showing that the described abuse did not constitute abuse during the class period, or that the anticipated harms were unforeseeable then.10 In fact, the panel noted that there was trial evidence to the contrary.
The panel rejected a similar argument about the term "total institution". The defendants argued that since the term entered usage in the twenty-first century, there was no evidence that the defendants knew the risks of their conduct during the class period. The panel confirmed that the trial judge did not find systemic negligence because the school was a "total institution", but rather used the evidence about the risk of harm associated with total institutions to inform her analysis of whether the students were treated in a way that fell below the standard of care.11
On the second point, the defendants argued that the trial judge overlooked the defendants' witnesses.12 This was related to the argument that there was no class-wide breach of duty because some students stated that they had "thrived" at the school.13 Though the trial judge did not address all the defense evidence in her reasons, she referred to individual defense witnesses throughout, and this sufficed for the panel.
In sum, the Court of Appeal found no error in the trial judge's conclusions on systemic negligence. Justice Leiper acknowledged that-while some students avoided certain forms of abuse or better tolerated the treatment-the way the school was run still fell below the standard of care for the whole class.
1 2020 ONSC 1133 at para 254.
2 2021 ONCA 775 at para 62.
3 2020 ONSC 1133 at para 138. The reforms set standards abolishing corporal punishment, creating engaging learning environments, emphasizing respect and trust, and setting the expectation that teachers serve as "guides, advisers, and facilitators, rather than authoritarian leaders."
4 See 2020 ONSC 1133 paras 268, 275, 286-88, 301, 307, and 312.
5 The defendants also appealed the decisions that they breached their fiduciary duty and that punitive damages were warranted, but the Court of Appeal quickly rejected these arguments at paras 79-82 of the decision.
6 At paras 75-78.
7 At paras 32-33.
8 2021 ONCA 775 at para 64. The defendants also raised a potential inconsistency in Dr. Barnes' evidence respecting whether one incident could be "abuse" causing emotional harm. The court found that "Dr. Barnes' evidence was clear: a single extreme incident [...] could lead to emotional harm."
9 2021 ONCA 775 at para 41.
10 2021 ONCA 775 at para 50.
11 2021 ONCA 775 at para 60.
12 2021 ONCA 775 at para 68.
13 2020 ONSC 1133 at para 328.
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