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Court File No. CV-11-420734
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT SEED
Plaintiff
(Moving Party)
- and -
HER MAJESTY THE QUEEN
IN RIGHT OF THE PROVINCE OF ONTARIO
Defendant
(Respondent)
Proceeding under the Class Proceedings Act, 1992
FACTUM OF THE PLAINTIFF
(Motion For Certification - Returnable April 10 to 13, 2012)
KOSKIE MINSKY LLP
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TORONTO, ONTARIO
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CELESTE POLTAK LSUC#: 46207A
TEL: 416-595-2701
FAX: 416-204-2909
JONATHAN BIDA LSUC#: 54211D
TEL: 416-595-2072
FAX: 416-204-2907
LAWYERS FOR THE PLAINTIFF
TO: HER MAJESTY THE QUEEN IN RIGHT
OF THE PROVINCE OF ONTARIO
Crown Law Office – Civil Law
720 Bay Street
8th Floor
Toronto, ON M5G 2K1
Robert Ratcliffe
Lynne McArdle
Tel.: 416-325-8535
Fax: 416-326-4181
Lawyers for the Defendant
TABLE OF CONTENTS
PART I - OVERVIEW OF THE MOTION 1
PART II - THE FACTS 2
i. Overview of W. Ross MacDonald School 2
ii. Seed’s Experiences at Ross MacDonald 3
iii. Other Class Members’ Experiences at Ross MacDonald 5
PART III - ISSUES AND THE LAW 10
A. SECTION 5(1)(A) – REASONABLE CAUSE OF ACTION 12
i. Test Pursuant to Section 5(1)(a) 12
ii. Operational Negligence 13
iii. Breach of Fiduciary Duty 15
iv. Statutory Derivative Claim Under the Family Law Act 18
B. IDENTIFIABLE CLASS (S. 5(1)(B)) 19
C. THE CLAIMS RAISE COMMON ISSUES (S. 5 (1)(C)) 20
D. A CLASS PROCEEDING IS THE PREFERABLE PROCEDURE (S.5(1)(D)) 23
E. THE PROPOSED REPRESENTATIVE PLAINTIFF (S.5(1)(E)) 25
PART IV - ORDER REQUESTED 29
SCHEDULE “A” – AUTHORITIES 30
SCHEDULE “B” – RELEVANT STATUTORY PROVISIONS 31
SCHEDULE “C” – AMENDED STATEMENT OF CLAIM
Court File No. CV-11-420734
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT SEED
Plaintiff
- and -
HER MAJESTY THE QUEEN
IN RIGHT OF THE PROVINCE OF ONTARIO
Defendant
Proceeding under the Class Proceedings Act, 1992
FACTUM OF THE Plaintiff
(Motion for Certification - Returnable April 10 to 13, 2012)
overview of the motion
THIS MOTION IS BROUGHT BY THE PLAINTIFF ROBERT SEED (“SEED”) FOR CERTIFICATION OF THIS ACTION AS A CLASS PROCEEDING PURSUANT TO THE CLASS PROCEEDINGS ACT, 1992, S.O. 1992, C. 6 (THE “CPA”).
This action arises out of the provincial Crown’s operation, administration and management of the W. Ross MacDonald School for the Blind, DeafBlind and Visually Impaired, formerly the Ontario School for the Blind (“Ross MacDonald”). Seed alleges that the Crown knew or ought to have known of physical, emotional and sexual abuse being perpetrated against the students at Ross MacDonald and yet it took no steps to prevent, halt, eliminate or report these abuses. It is alleged the Crown acted negligently and in breach of its fiduciary duties in its operation and management of Ross MacDonald.
Courts have repeatedly certified actions similar to the within actions, alleging abuse in Crown institutions and schools. Just like those earlier actions, the focus of this action is on systemic wrongs. The Crown has filed no responding evidence on this motion and there is nothing to suggest the within action differs in substances from these earlier certified actions.
the facts
i. OVERVIEW OF W. ROSS MACDONALD SCHOOL
Ross MacDonald is a provincially-operated elementary and secondary school for children who are visually impaired, blind and deaf-blind. It has been in operation since 1872. Ross MacDonald operates under section 13 of the Education Act, R.S.O. 1990, c. E.2 and is under the authority of the Provincial Schools Branch within the Learning and Curriculum Division of the Ministry of Education.
Statement of Claim at paras. 2, 7, 8, Motion Record, Tab 2.
Students came from throughout Ontario and other provinces to attend Ross MacDonald. The vast majority of students lived in residence during their studies. The students attended Ross MacDonald because of their visual disabilities and because there was no practical alternative available for their education. These students and their parents depended on the Crown and those operating the school for their daily care and safety.
Statement of Claim at para. 7, Motion Record, Tab 2.
Affidavit of Robert Seed at paras. 2 and 4, Motion Record, Tab 3.
Affidavit of Gregory Thompson at para. 3, Motion Record, Tab 4.
Affidavit of Peter Bacic at para. 2, Motion Record, Tab 5.
Affidavit of Ed Parenteau at para. 2, Motion Record, Tab 8.
Affidavit of Rodney Barkley at paras. 2 and 27, Motion Record, Tab 11.
Affidavit of Katherine Nessner at para. 2, Supp. Motion Record, Tab 1.
The statement of claim alleges that throughout the class period, the residence counsellors, teachers and administrators at Ross MacDonald treated the students with contempt, prejudice and indifference. They engaged in abusive conduct, often taking advantage of the visual disabilities of students.
Statement of Claim at para. 12, Motion Record, Tab 2.
Seed alleges that the Crown was, at all material times, responsible for the operation, funding and supervision of Ross MacDonald. He alleges that the Crown knew or ought to have known of the conditions at Ross MacDonald, including the pervasive use of arbitrary, violent and humiliating punishments.
Statement of Claim at paras. 7 and 28, Motion Record, Tab 2.
Seed alleges that every aspect of students’ lives was dictated, controlled and provided for by the Crown. The students were children at the mercy of the adults that cared for them and were particularly vulnerable as a result of their disabilities.
Statement of Claim at para. 4, Motion Record, Tab 2.
ii. Seed’s Experiences at Ross MacDonald
The proposed representative plaintiff Seed attended Ross MacDonald for 11 years between 1954 and 1965, beginning when he was 7 years old. He lived in residence, just as almost all of the students. During his time at the school, he observed and suffered abusive conduct by staff. It was an institutional environment where the staff and teachers exerted rigid control of the students.
Affidavit of Robert Seed at paras. 2, 4 and 6, Motion Record, Tab 3.
At the time, Ross MacDonald was the only education institution he could attend given his visual impairment. The local school board would not accept Seed as a student as they could not accommodate a student with a visual impairment.
Affidavit of Robert Seed at para. 4, Motion Record, Tab 3.
The staff members responsible for the care of students in residence were called “house mothers” or “house fathers”. At some point after Seed left the school, it stopped using these terms and adopted the title of “residence counsellor”. The house parents were supposed to be the students’ caregivers. This was particularly important for students, such as Seed, whose families were far away.
Affidavit of Robert Seed at para. 6, Motion Record, Tab 3.
The house parents were unqualified. They did not know how to work with persons with visual disabilities and saw their job more as caretakers. There was a failure to properly supervise students, which created an environment where assault amongst students was widespread.
Affidavit of Robert Seed at paras. 6 and 16, Motion Record, Tab 3.
The house parents and teachers inflicted arbitrary, violent and humiliating punishments on students. The students were frequently punished for minor or innocent matters such as being homesick, wetting the bed, throwing up or having trouble reading.
Affidavit of Robert Seed at para. 7, Motion Record, Tab 3.
The teachers and house parents used physical violence for discipline. This included beating, shoving students, throwing books and other school equipment at students during classes, making students drink from urinals, slapping students with the bare hand or with classroom objects such as books and grabbing students by the hair.
Affidavit of Robert Seed at paras. 8-12, Motion Record, Tab 3.
The teachers and house parents also used humiliation and bullying. They would take advantage of the students’ disabilities, particularly those that were completely blind.
Affidavit of Robert Seed at para. 13, Motion Record, Tab 3.
The teachers and house parents were no better at mealtimes. Students were force-fed if they did not eat their meals or students were denied meals as a form of punishment.
Affidavit of Robert Seed at para. 14, Motion Record, Tab 3.
iii. Other Class Members’ Experiences at Ross MacDonald
Six other former students have given evidence on this motion of their similar experiences while at Ross MacDonald. These experiences included instances of physical, psychological and emotional abuse.
Douglas Leavens (“Leavens”) was a student at Ross MacDonald from 1951 to 1961. During Leavens’s time at Ross MacDonald, the house fathers would bully students, assault them and punish them for minor offences such as not eating cauliflower. The staff would take advantage of students’ visual impairments. One house father would come up behind the students and “clobber” them. Punishment was arbitrary.
Affidavit of Douglas Leavens at paras. 2 and 4, Motion Record, Tab 7.
There was also a failure to properly supervise students. Sexual assault among students was pervasive. The house fathers failed to intervene or address the situation despite complaints. In Leavens words, it was “survival of the fittest”.
Affidavit of Douglas Leavens at para. 7, Motion Record, Tab 7.
Leavens’s roommate was particularly aggressive and wanted him to perform oral sex. To this day, Leavens sleeps with his legs crossed and his hands covering his genitals.
Affidavit of Douglas Leavens at para. 7, Motion Record, Tab 7.
Ed Parenteau (“Parenteau”) attended Ross MacDonald from 1966 to 1978. He describes the school as regimented, sometimes feeling like a prison.
Affidavit of Ed Parenteau at para. 7, Motion Record, Tab 8.
Parenteau recounts experiences of physical and sexual assault by staff. He gave an example of a residence counsellor that would hit students with “long boards” that were 2 or 3 feet long. He gave another example of a teacher that sexually assaulted the female students by trying to touch their breasts or slip his hand down their pants.
Affidavit of Ed Parenteau at paras. 3, 4 and 6, Motion Record, Tab 8.
Gregory Thompson (“Thompson”) was a student of Ross MacDonald from 1973 to 1984. He explains that Ross MacDonald was institutional and that the students called it the “Braille Jail”.
Affidavit of Gregory Thompson at paras. 2 and 9, Motion Record, Tab 4.
Thompson suffered abusive conduct at the hands of staff including physical assault. Examples include a counsellor approaching silently and punching him on the leg above the knee and another counsellor giving him an open handed slap on the side of the face.
Affidavit of Gregory Thompson at paras. 5-7, Motion Record, Tab 4.
Katherine Nessner (“Nessner”) attended Ross MacDonald from 1958 to 1968. The school was very regimented and the students’ lives revolved around the bell and whistle. Nessner’s life at school was isolated and controlled.
Affidavit of Katherine Nessner at paras. 2 and 4, Supp. Motion Record, Tab 1.
Nessner recounts experiences of physical assault by staff. On one occasion, she was chatting with another student at night. Without warning, a residence counsellor jumped on Nessner’s back and began beating her. The residence counsellor then jumped on the other students’ back and beat her as well. Nessner was in grade 2 at the time.
Affidavit of Katherine Nessner at paras. 10 and 11, Supp. Motion Record, Tab 1.
Nessner’s affidavit details other occasions of assault and inappropriate punishment including receiving “birthday spankings”, being forced to sit alone in the hallway at night (Nessner is totally blind), being dragged by her hair from a lunch line and being hit on the side of the face and thrown on the floor for vomiting in the infirmary.
Affidavit of Katherine Nessner at paras. 2, 12, 15, 19 and 26, Supp. Motion Record, Tab 1.
Mealtimes were also very difficult for Nessner as she was often force-fed. Staff would continuously shove the food in her mouth before she could swallow the previous mouthful. Nessner was punished if she retched and the food came out of her mouth.
Affidavit of Katherine Nessner at para. 21, Supp. Motion Record, Tab 1.
In addition to her own experiences, Nessner provides examples of staff hitting or beating other students for wetting the bed or misconduct in the playground, literally washing out a student’s mouth with soap, punishing students for overusing toilet paper and hitting students on the head with a hard-cover book.
Affidavit of Katherine Nessner at paras. 8, 13 and 17, 23 and 27, Supp. Motion Record, Tab 1.
Nessner recounts instances of humiliation and staff taking advantage of the students’ disabilities. For example, one teacher punished blind students by standing them up in class, spinning them in circles and telling them to find their seats.
Affidavit of Katherine Nessner at paras. 23 and 24, Supp. Motion Record, Tab 1.
Peter Bacic (“Bacic”) began attending Ross MacDonald in 1971 and left in 1985. He sets out several examples of inappropriate punishment. He recalls staff hitting students for having trouble learning. For example, a residence counsellor bent Bacic’s fingers back when teaching him how to tie his shoes. On another occasion, Bacic was punched on the chest a few times and called stupid for walking in the wrong direction. Bacic was also hit across the hands with a ruler for getting lost and punched in the head for misbehaving in church.
Affidavit of Peter Bacic at paras. 2 and 4-6, Motion Record, Tab 5.
In addition, Bacic suffered a serious injury as a result of the insufficient supervision of staff. One of the residence counsellors allowed him to go tobogganing without supervision. Bacic suffered a head injury when his toboggan hit a tree. He was in the hospital for a month and his injury has since that time affected the movement of his left arm.
Affidavit of Peter Bacic at para. 7, Motion Record, Tab 5.
Rodney Barkley (“Barkley”) attended Ross MacDonald from 1973 to 1985. He explains that students of Ross MacDonald were essentially isolated from the outside world.
Affidavit of Ronald Barkley at paras. 3 and 4, Motion Record, Tab 11.
The residence counsellors used violence as a form of discipline and Barkley learned to be scared of the residence counsellors from the time he first arrived at the school. If students were caught talking at night, they could get yelled at, spanked, hit with 3-foot long wood building blocks or made to stand in a hallway or another room by themselves for any number of hours.
Affidavit of Ronald Barkley at paras. 5-8 and 10, Motion Record, Tab 11.
Barkley also witnessed students having their mouths washed out with soap. In most cases, these students were multi-handicapped. On one occasion, a student had been caught swearing and two counsellors held him down and shoved a bar of soap down his throat. The student was thrashing around, gagging and chocking.
Affidavit of Ronald Barkley at para. 9, Motion Record, Tab 11.
In addition, Barkley described a punishment called the “what for”. This involved a residence counsellor who would punish late waking students by pulling them out of bed by their penises.
Affidavit of Ronald Barkley at para. 12, Motion Record, Tab 11.
Barkley recounts other occasions where he encountered sexual abuse. For instance, a counsellor sought to teach him how to masturbate. When Barkley refused to be involved, the counsellor took his hand and attempted to make him feel what the counsellor was doing.
Affidavit of Ronald Barkley at para. 13, Motion Record, Tab 11.
Further, Barkley recalls being force fed at meal times. If the residence counsellors knew a student did not like a certain food, the counsellors would try to force feed him or her that food.
Affidavit of Ronald Barkley at para. 15, Motion Record, Tab 11.
Finally, students also faced physical abuse as punishment in class. Students were physically disciplined for matters such as not paying attention, talking back, squabbling with another students or simply because the students did not understand what was being taught.
Affidavit of Ronald Barkley at paras. 21 and 22, Motion Record, Tab 11.
ISSUES AND THE LAW
SEED SEEKS CERTIFICATION OF THIS ACTION AS A CLASS PROCEEDING UNDER SECTION 5 OF THE CPA. HE SEEKS TO ACT ON BEHALF OF THE FOLLOWING CLASS:
a) all persons who have attended or resided at Ross MacDonald between January 1, 1951 to the present day and who were alive as of February 22, 2009; and
b) all spouses, children, grandchildren, parents, grandparents, and siblings of persons who attended or resided at Ross MacDonald between March 31, 1978 to the present day, who were alive as of February 22, 2009.
Class Proceedings Act, 1992, S.O. 1992, c. 6, s.5, Schedule B, Tab B.
There have been numerous class proceedings certified involving allegations of abuse in residential facilities operated by the Crown, including residential schools.
Dolmage v. Ontario, 2010 ONSC 1726, Plaintiff’s Authorities, Tab 1A (mental health facility).
Cloud v. Canada (Attorney General) (2004), 73 O.R. (3d) 401 (C.A.) [Cloud v. Canada], Plaintiff’s Authorities, Tab 2 (aboriginal school).
Rumley v. British Columbia, [2001] S.C.J. No. 39, Plaintiff’s Authorities, Tab 3 (school for the deaf and blind).
Richard v. British Columbia, 2005 BCSC 372, Plaintiff’s Authorities, Tab 4 (mental health facility).
Order dated August 19, 2011 in Clark v. Ontario, CV-10-411911, Plaintiff’s Authorities, Tab 5. (mental health facility).
Order dated August 19, 2011 in Bechard v. Ontario, CV-10-417343CP, Plaintiff’s Authorities, Tab 6. (mental health facility).
See also Johnston v. The Sheila Morrison Schools, 2010 ONSC 3334, Plaintiff’s Authorities, Tab 7 (private boarding school).
Justice Cullity’s decision in Dolmage v. Ontario (“Huronia”) provides a recent example. His Honour certified an action as class proceeding where the plaintiff alleged negligence and breach of fiduciary duty against the Ontario Crown for its operation and management of an institution for persons with cognitive disabilities. The Crown unsuccessfully challenged all five criteria for certification in that action and unsuccessfully sought leave to appeal from certification.
Dolmage v. Ontario, supra, leave to appeal denied 2010 ONSC 6131, Plaintiff’s Authorities, Tab 1A & B.
It is not apparent on what basis the Crown distinguishes certification in Huronia or other similar class proceedings from the within action. The Crown has not advised class counsel of its position on any of the criteria for certification in this action. Much like Clark v. Ontario (“Rideau”) and Bechard v. Ontario (“Southwestern”) – where the Crown eventually consented to certification – class counsel has repeatedly requested the Crown to advise of the certification criteria to which it was objecting.
Order in Clark v. Ontario, supra, Plaintiff’s Authorities, Tab 5.
Order in Bechard v. Ontario, supra, Plaintiff’s Authorities, Tab 6.
The Crown has filed no responding evidence for this motion and conducted a 45-minute cross-examination of one affiant out of the 10 affidavits in support of certification.
A. SECTION 5(1)(A) – REASONABLE CAUSE OF ACTION
Section 5(1)(a) is satisfied in this case. The statement of claim discloses the following causes of action:
c) operational negligence for acts occurring after 1963;
d) breach of fiduciary duty owed to the Resident Class over the full time frame of the action from 1951; and
e) statutory derivative Family Law Act claims of the Family Class arising after 1978.
These causes of action have been certified in other class proceedings alleging abuse at residential facilities, including Huronia and Johnston v. The Sheila Morrison Schools.
Dolmage v. Ontario, supra at paras. 133-137, 148-150, Plaintiff’s Authorities, Tab 1A.
Johnston v. Sheila Morrison Schools, supra at para. 12, Plaintiff’s Authorities, Tab 7.
In the Huronia class action, Justice Cullity certified a class proceeding alleging abuse at a residential facility for individuals with developmental disabilities that was operated by the Crown. In Johnston v. The Sheila Morrison Schools Justice Perell certified a class proceeding alleging abuse at a private residential school.
Dolmage v. Ontario, supra at para. 1, Plaintiff’s Authorities, Tab 1A.
Johnston v. Sheila Morrison Schools, supra at para. 12, Plaintiff’s Authorities, Tab 7.
There is no principled reason for a different legal conclusion in this action.
i. Test Pursuant to Section 5(1)(a)
Certification will not be denied under s.5(1)(a) unless it is plain and obvious that the pleadings disclose no cause of action. It is the same low threshold for a plaintiff as responding to a motion to strike under rule 21 of the Rules of Civil Procedure.
Cloud v. Canada, supra at para. 41, Plaintiff’s Authorities, Tab 2.
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, R.21.Schedule B, Tab B.
None of the length or complexity of the issues, the novelty of the cause of action or the potential for the defendant to mount a strong defence on the merits ought to prevent a plaintiff from proceeding with an action. A claim is struck only where it is “certain to fail”.
Hunt v. Carey Canada Inc., [1990] S.C.J. No. 93 at para. 33, Plaintiff’s Authorities, Tab 8.
A cautious approach is adopted to section 5(1)(a) as an order denying certification effectively terminates claims for hundreds or thousands of individuals. This approach is consistent with the Supreme Court’s rejection of a preliminary merits test at certification. The question at the certification stage is not whether the claim is likely to succeed but whether the suit is properly prosecuted as a class proceeding.
Hollick v. Toronto (City), [2001] S.C.J. No. 67 at para. 16, Plaintiff’s Authorities, Tab 9.
ii. Operational Negligence
Seed advances negligence against the Crown for its operation and management of Ross MacDonald from September 1, 1963 to the present. The decision to limit claims for negligence to the period after 1963 is based on the Proceedings Against The Crown Act, which bars claims in negligence against the Crown for conduct occurring before the statute came into force in September 1963.
Dolmage v. Ontario, supra at para. 76, Plaintiff’s Authorities, tab 1A.
For claims from 1963 onward, the claim in negligence discloses a cause of action. The student class members were minor children with visual disabilities within the exclusive care and control of the Crown and its agents. The abuses perpetrated against the students were reasonably foreseeable by the Crown, particularly given the absence of adequate supervisory procedures and protections.
Seed alleges the Crown acted negligently and in breach of its duty of care to student class members in its establishment, operation, regulation, financing, supervision and control of Ross MacDonald. He alleges the Crown failed to properly supervise the operations and staff of Ross MacDonald. The Crown’s alleged negligence includes:
f) failing to investigate or report injuries sustained by students;
g) failing to provide adequate medical care for students;
h) failing to properly screen applicants for staff positions at Ross MacDonald, which included failing to conduct criminal background checks or reference checks;
i) hiring caregivers and others to work at Ross MacDonald who were not qualified to meet the needs of the individuals under their care and supervision;
j) failing to set or implement standards of conduct for its employees and Ross MacDonald students with respect to the safety, health or well-being of students;
k) failing to implement adequate policies for recognizing and reporting potential abuse of or harm to students;
l) failing to educate students and employees in the use of a system through which abuse would be recognized and reported;
m) failing to properly supervise the Ross MacDonald environment, including its administration and activities;
n) failing to adequately, properly and effectively supervise the conduct of its employees, representatives and agents;
o) failing to provide adequate financial resources or support to properly care and provide for Ross MacDonald students;
p) failing to respond adequately, or at all, to complaints or recommendations which were made concerning Ross MacDonald, both with respect to its condition and the treatment of students, including complaints of physical, emotional and sexual abuse;
q) permitting unhealthy and inappropriate punishments to be perpetrated against the class; and
r) permitting an atmosphere that threatened the class with physical punishments, including violence.
Statement of Claim at paras. 44 and 45, Motion Record, Tab 2.
In Huronia, Justice Cullity certified the action to include a claim for negligence against the Crown from 1963 to 2010. Similar grounds of negligence were alleged within the identical statutory framework.
Dolmage v. Ontario, supra at para. 132-137, Plaintiff’s Authorities, tab 1A.
iii. Breach of Fiduciary Duty
Seed advances a claim for breach of fiduciary duty against the Crown for its operation and management of Ross MacDonald for the entire class period.[1]
This claim discloses a cause of action. Parents, guardians, school boards and other persons with care of children owe a fiduciary duty to those children. As noted in E.D.G. v. Hammer, a school board “enjoys a position of overriding power and influence over its students. It is a power dependent relationship, one characterized by unilateral discretion”.
K.L.B. v. British Columbia, [2003] 2 S.C.R. 403 at para. 38, Plaintiff’s Authorities, Tab 10.
E.D.G. v. Hammer, [1998] B.C.J. No. 992 at para. 40 (S.C.), aff’d 2001 BCCA 226, aff’d [2003] 2 S.C.R. 459 at para. 22, Plaintiff’s Authorities, Tab 11A & B.
The Crown exercised control over the operation and management of Ross MacDonald and over the lives of the students. Further, the students of Ross MacDonald were particularly vulnerable to the Crown by virtue of their visual disabilities. In this context, there was a reasonable expectation that the Crown would act in their interests for their care and safety.
Frame v. Smith, [1987] S.C.J. No. 49 at para. 60, Plaintiff’s Authorities, Tab 13.
The Crown’s fiduciary duties are similar to that of a parent. The Crown owed a fiduciary duty to the student class to ensure that reasonable care was taken of them physically and emotionally and that they were protected from intentional torts. The Crown had a responsibility to ensure the students’ safety at school.
E.D.G. v. Hammer, [1998] B.C.J. No. 992 at para. 40 (S.C.), aff’d 2001 BCCA 226, aff’d [2003] 2 S.C.R. 459, Plaintiff’s Authorities, Tab 11A.
A breach of a fiduciary duty does not require a conscious motivation or a desire for profit. A defendant may be liable for breach of fiduciary duty where there is disloyalty, an action of putting someone else’s interests ahead of the child. This includes situations where the person with care and control of a child “turns a blind eye to the abuse”.
K.L.B. v. British Columbia, supra at para. 49, Plaintiff’s Authorities, Tab 10.
Seed alleges the Crown breached its fiduciary duties. He alleges that the Crown knew of, or was wilfully blind to, the conditions at Ross MacDonald, including the pervasive use of arbitrary, violent and humiliating punishments and the wholly inadequate supervision of students. The Crown breached its fiduciary obligations to the class by:
s) failing to take a proper and good faith interest in the operation and supervision at Ross MacDonald, despite its quasi-parental, or in loco parentis, role in respect of the students under its responsibility;
t) failing to investigate injuries sustained by students;
u) failing to provide adequate medical care for students;
v) failing to report allegations of physical, emotional or sexual abuse, including the failure to report such conduct in accordance with the Child and Family Services Act;
w) failing to properly screen applicants for staff positions at Ross MacDonald, which included failing to conduct criminal background checks or reference checks;
x) hiring caregivers and others to work at Ross MacDonald who were not qualified to meet the needs of the individuals under their care and supervision;
y) putting its own interests, and those of its employees, agents and other persons under its supervision, ahead of the interests of students;
z) failing to properly supervise the Ross MacDonald environment, including its administration and activities;
aa) failing to provide adequate financial resources or support to properly care and provide for Ross MacDonald students;
ab) failing to respond adequately, or at all, to complaints or recommendations which were made concerning Ross MacDonald, both with respect to its condition and the treatment of students, including complaints of physical, emotional and sexual abuse;
ac) creating, permitting and fostering an atmosphere of fear and intimidation among the disabled children at Ross MacDonald;
ad) failing to safeguard the physical and emotional needs of the student class;
ae) permitting unhealthy and inappropriate punishments to be perpetrated against the student class; and
af) permitting an atmosphere that threatened the student class with physical punishments, including violence.
Statement of Claim at paras. 38 and 39, Motion Record, Tab 1, Sch. A.
The basis for Seed’s claim for breach of fiduciary duty is identical to the claim for breach of fiduciary duty that was allowed to proceed in Huronia. In that case, Justice Cullity rejected the Crown’s criticism of the pleading of breach of fiduciary duty:
…the particularized allegations in this case extend to allegations of intentional abuse and are not limited to assertions of a failure to exercise due care. Reading the pleading generously, they are tantamount to allegations that the Crown not only ignored the interests of the residents but also acted to their detriment intentionally … It does not seem to me to be plainly and obviously wrong that a fiduciary who ignores the interests of the beneficiaries of the relationship – and intentionally acts contrary to them – has failed to give those interests due priority and has thereby breached its duties of loyalty and good faith.
Dolmage v. Ontario, supra at paras. 147-150, Plaintiff’s Authorities, Tab 1A.
The Ontario Crown unsuccessfully sought leave to appeal this finding.
Dolmage v. Ontario, 2010 ONSC 6131 at para. 22, Plaintiff’s Authorities, Tab 1B.
iv. Statutory Derivative Claim Under the Family Law Act
Seed advances a derivative claim against the Crown on behalf of the family class pursuant to section 61 of the Ontario Family Law Act. This claim is limited to the time period from March 31, 1978 to present as section 61 only came into force on March 31, 1978 with the enactment of the Family Law Reform Act.
Family Law Reform Act , 1978, S.O. 1978, c. 2, s. 60 [now s. 61], Schedule B, Tab B.
Subsection 61(1) of the Family Law Act provides that:
If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.
Family Law Act, R.S.O. 190, c. F.3, s.61, Schedule B, Tab B.
Seed alleges that members of the family class have suffered, and continue to suffer, loss of care, guidance and companionship which arises directly, or indirectly, from the physical, mental and emotional trauma sustained directly, or indirectly, by the student class.
Amended Statement of Claim at para. 51, Schedule C, Tab C.
Substantially the same derivative claim are advanced in Johnston v. The Sheila Morrison Schools, Huronia, Rideau and Southwestern, all of which this court has certified.
Johnston v. Sheila Morrison Schools, supra at para. 12, Plaintiff’s Authorities, Tab 7.
B. IDENTIFIABLE CLASS (S. 5(1)(B))
Section 5(1)(b) is satisfied as this class proceeding provides for an identifiable class. Seed seeks to represent the following persons as class members:
ag) all persons who have attended or resided at Ross MacDonald from January 1, 1951 to the present day and who were alive as of February 22, 2009; and
ah) all spouses, children, grandchildren, parents, grandparents, and siblings of persons who attended or resided at Ross MacDonald from March 31, 1978 to the present day, who were alive as of February 22, 2009.
Notice of Motion, Motion Record, Tab 1.
This definition uses objective criteria to determine membership in the class and it is rationally linked to the common issues. It is also substantially the same as the class definitions certified in Huronia, Rideau, Southwestern and Johnston v. The Sheila Morrison Schools. There is no principled distinction between the class definitions in those cases and the proposed class definition in this action.
Order dated July 30, 2010 in Dolmage v. Ontario, CV-09-376927CP, Plaintiff’s Authorities, Tab 1C.
Order in Clark v. Ontario, supra Plaintiff’s Authorities, Tab 5.
Order in Bechard v. Ontario, supra Plaintiff’s Authorities, Tab 6.
Johnston v. Sheila Morrison Schools, supra at para. 6, Plaintiff’s Authorities, Tab 7.
A class definition circumscribed by the objective criteria of attendance or residence has been accepted by courts as “it is not affected by the possibility that some class members may not be able to prove that they suffered harm as a result of the Crown’s alleged breaches”.
Dolmage v. Ontario, supra at para. 155, Plaintiff’s Authorities, Tab 1A.
Cloud v. Canada, supra at para. 47, Plaintiff’s Authorities, Tab 2.
In Cloud v. Canada (Attorney General), the Ontario Court of Appeal approved a class definition of residential school survivors that was defined by attendance at the school within a certain time period. Given these criteria, the court determined that the proposed class was not open-ended but rather, “circumscribed by their defining criteria” and were rationally linked to the common issues because, as in this case, “all class members claim breach of these duties and that they all suffered at least some harm as a result”. The approved class was:
ai) all persons who attended the Mohawk Institute Residential School between 1922-1969;
aj) all parents and siblings of all persons who attended the Mohawk Institute School between 1992-1969; and
ak) all spouses and children of all persons who attended the Mohawk Institute Residential School between 1992-1969.
Cloud v. Canada, supra at para. 47, Plaintiff’s Authorities, Tab 2.
C. THE CLAIMS RAISE COMMON ISSUES (S. 5 (1)(C))
Seed proposes the following common issues be certified in this action:
al) by its operation or management of Ross MacDonald from January 1, 1951 to present, did the defendant breach a fiduciary duty owed to the Student Class to protect them from actionable physical or mental harm?
am) by its operation or management of Ross MacDonald from September 1, 1963 to present, did the defendant breach a duty of care it owed to the Student Class to protect them from actionable physical or mental harm?
an) if the answer to either of common issues (a) or (b) is “yes”, are the members of the Family Class entitled to recovery of their pecuniary loss resulting from injuries to the members of the Student Class who resided at Ross MacDonald from March 31, 1978 to present, pursuant to section 61 of the Family Law Act, R.S.O. 1990, c. F.3 and/or the equivalent legislation in other provinces?
ao) if the answer to any of common issues (a), (b) or (c) is “yes”, can the Court make an aggregate assessment of the damages suffered by all class members as part of the common issues trial?
ap) if the answer to any of common issues (a), (b) or (c) is “yes”, was the defendant guilty of conduct that justifies an award of punitive damages?; and
aq) if the answer to common issue (e) is “yes”, what amount of punitive damages ought to be awarded?
These proposed common issues are essential ingredients of the claims of all class members and are consistent with the principles enumerated by the Supreme Court in Hollick v. Toronto (City) and Rumley v. British Columbia. The determination of these issues would avoid the need for each class member, at tremendous expense, to prove these elements at the trial or his or her own individual claim.
Hollick v. Toronto (City), supra at para. 18, Plaintiff’s Authorities, Tab 9.
Rumley v. British Columbia, supra at paras. 28-34, Plaintiff’s Authorities, Tab 3.
Cloud v. Canada, supra at para. 55, Plaintiff’s Authorities, Tab 2.
The focus in this action, as with other class proceedings alleging institutional abuse, is on systemic wrongs, not on the individual circumstances of class members. The court in determining these common issues will assess the knowledge and conduct of those in charge of the school over the class period.
Rumley v. British Columbia, supra at paras. 30 and 34, Plaintiff’s Authorities, Tab 3.
Cloud v. Canada, supra at paras. 32 and 58, Plaintiff’s Authorities, Tab 2.
Brown v. Canada (Attorney General), 2010 ONSC 3095 at paras. 12, 13 and 184, Plaintiff’s Authorities, Tab 14.
Dolmage v. Ontario, supra at paras. 162 and 168, Plaintiff’s Authorities, Tab 1A.
The common issues, relating to the Crown’s conduct and duties, are independent of any particular class member’s experiences and may be dispositive of many key elements of liability. As noted by the Ontario Court of Appeal in Cloud v. Canada (Attorney General), whether the defendants breached their lawful duties in “the way they ran the School” is a real and substantial issue for each class member’s claim.
Cloud v. Canada, supra at para. 58, Plaintiff’s Authorities, Tab 2.
Wheadon v. Bayer Inc., [2004] N.J. No. 147 at paras. 132-133, Plaintiff’s Authorities, Tab 15.
The Supreme Court and the Ontario Court of Appeal have rejected arguments from defendants that questions surrounding whether a defendant’s conduct fell below an acceptable standard of care are individualistic:
…class members share an interest in the question of whether the appellant breached a duty of care. On claims of negligence and breach of fiduciary duty, no class member can prevail without showing duty and breach. Resolving those issues, therefore is necessary to the resolution of each class member’s claim.
Rumley v. British Columbia, supra at paras. 27-30, Plaintiff’s Authorities, Tab 3.
Cloud v. Canada, supra at paras. 63-65, Plaintiff’s Authorities, Tab 2.
As Justice Cullity found in the Huronia proceeding, “[l]ike the claims in Cloud and Rumley, those advanced in this case are essentially systemic. They are based on the manner in which Huronia was maintained and administered by the Crown and no attempt is made to differentiate between the treatment and the claims of individuals who were resident there. … With their emphasis on systemic breaches …. the proposed common issues I have mentioned have commonality.” [emphasis added]
Dolmage v. Ontario, supra at paras. 162 and 164, Plaintiff’s Authorities, Tab 1A.
The same reasoning applies to this action: the claims advanced are systemic, based on the manner in which Ross MacDonald was maintained and administered, without distinction between those individuals who attended there.
D. A CLASS PROCEEDING IS THE PREFERABLE PROCEDURE (S.5(1)(D))
A class proceeding would the preferable procedure for the resolution of the common issues in this action. Much as in Cloud and Huronia, a class proceeding is a fair, efficient and manageable method for advancing the class members’ claims and is preferable to other procedures and means of resolving the class members’ claims.
Cloud v. Canada, supra at paras. 78-92, Plaintiff’s Authorities, Tab 2.
Dolmage v. Ontario, supra at paras. 165-169, Plaintiff’s Authorities, Tab 1A.
In Cloud, the Court of Appeal determined that the common issues, considered in the context of the claim as a whole, would significantly advance the claims of class members. It found the common issues, substantially the same as the within action, were fundamental to the claims of class members. Their resolution will take the action “up to the point where only harm, causation and individual defences such as limitations remain for determination.”
Cloud v. Canada, supra at paras. 78-83 and 90, Plaintiff’s Authorities, Tab 2.
The preferability analysis is also informed by the three principal advantages of class proceedings: (a) judicial economy, (b) access to justice and (c) behaviour modification.
Cloud v. Canada, supra at para. 73, Plaintiff’s Authorities, Tab 2.
Access to justice and judicial economy are paramount concerns in this case and will be served by this action continuing as a class proceeding.
Affidavit of David Rosenfeld at paras. 16-18, Motion Record, Tab 9.
An action of this kind will likely be extremely expensive to pursue. The documentary evidence will likely be extensive and time-consuming to collect and review. Numerous expert witnesses will likely be retained in the course of the proceedings.
Affidavit of David Rosenfeld at para. 18, Motion Record, Tab 9.
By way of example, in the Huronia class action, the Crown has produced more than 50,000 documents. No individual could realistically pursue litigation on this scale. Certification would ensure the class has meaningful redress in an arena where the inherent inequalities of bargaining power between these parties may be equalized in an efficient, case-managed environment.
Moreover, in the absence of a class proceeding, there would be no feasible alternative for legal redress for the class members. The refusal to certify this proceeding would effectively deny access to the court for thousands of vulnerable individuals.
Affidavit of David Rosenfeld at paras. 15, 17 and 18, Motion Record, Tab 9.
Justice Cullity considered this issue in Huronia and ultimately found that certification would go some distance in realizing the goals of the Class Proceedings Act:
… The uncontradicted evidence is that the expense of individual actions would be prohibitive for virtually all of the class members. Unlike the position in Cloud and Rumley, there is no evidence that the class members have any other reasonable means of obtaining redress. The argument that no litigation would be preferable to a class proceeding has been rejected consistently in this court; see for example, 1176560 Ontario Limited v. The Great Atlantic and Pacific Company of Canada Limited, [citation omitted].
Dolmage v. Ontario, supra at para. 167, Plaintiff’s Authorities, Tab 1A.
Finally, the Crown has filed no responding evidence on this motion. In this context, the Crown ought not be permitted to assert another alternative is available or appropriate for class members to advance their claims.
To permit defendants to defeat certification without any responding evidence, “by simple reliance on bald assertions that joinder, consolidation, test cases or similar proceedings are preferable”, would be antithetical to the certification test:
Mere assertion that the procedures exist [joinder, consolidation, test cases] affords not support for the proposition that they are to be preferred. The defendant must support the contention that another procedure is to be preferred with an evidentiary foundation.
1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada, [2002] O.J. No. 4781 at para. 27 (S.C.J.), Plaintiff’s Authorities, Tab 16.
Bunn v. Ribcor Holdings Inc., [1998] O.J. No. 1790 at para. 25 (Gen. Div.), Plaintiff’s Authorities, Tab 17.
Where a defendant fails to tender a complete evidentiary record to resist certification, neither the plaintiff nor the court is required to accept a defendant’s contention on a particular component of certification. Without a complete evidentiary record, such assertions or contentions of a defendant cannot be considered matters legitimately in issue.
LeFrancois v. Guidant Corp., [2009] O.J. No. 2481 at paras. 42 and 43 (S.C.J.), Plaintiff’s Authorities, Tab 18.
E. THE PROPOSED REPRESENTATIVE PLAINTIFF (S.5(1)(E))
The proposed representative Seed would fairly and adequately represent the class. He is a former student of Ross MacDonald and both suffered and witnessed abuse at the hands of staff. Seed has been the driving force for this litigation and many of the former students from Ross MacDonald know him.
Affidavit of Robert Seed at para. 23, Motion Record, Tab 3.
The adequacy of a proposed representative plaintiff involves the court’s inquiry into both the motivation of the plaintiff and the competence of class counsel. Any proposed representative need not be ‘typical’ of the class but must be ‘adequate’ in the sense that:
…the two most important considerations in determining whether a plaintiff was appropriate were whether there was a common interest with other class members and whether the representative plaintiff would ‘vigorously prosecute’ the claim.
It has been established that there is a common interest and I can see no reason why the representative plaintiff would not vigorously prosecute the claim. Any individual plaintiffs who feel that the representative plaintiff would not represent them may opt out of the class proceeding and pursue individual actions.
Campbell v. Flexwatt (1997), [1997] B.C.J. No. 2477 at paras. 75 and 76 (C.A.), Plaintiff’s Authorities, Tab 18.
Seed has shown himself to be capable of representing the class. He has been integrally involved in all aspects of the litigation leading up to this motion. He expects to play an active role in the litigation including reviewing court materials and instructing counsel.
Affidavit of Robert Seed at para. 24, Motion Record, Tab 3.
Seed also expects to assist with communication with class members. For example, he has experience communicating with people with visual disabilities. He helped class counsel so they would knew with whom to speak in designing a program for notice to the class. Class members have also called Seed with questions and suggestions and where appropriate he directs them to class counsel.
Affidavit of Robert Seed at paras. 23 and 24, Motion Record, Tab 3.
Additionally, Seed is prepared to act as representative plaintiff and understands the obligation to act in the best interests of the class. Seed has had similar experiences to the other class members and there is no indication of a conflict between him and other class members with respect to the proposed common issues or any other issues. There is no impediment to Seed’s ability to fairly and adequately represent the interests of the class.
Affidavit of Robert Seed at paras. 18 and 28, Motion Record, Tab 3.
Finally, the proposed litigation plan offers a workable method of advancing the class proceeding and takes into consideration the circumstances of the student class members. The proposed litigation plan for the within action is very similar to the litigation plan that was approved in Huronia.
Affidavit of David Rosenfeld at para. 20, Motion Record, Tab 9.
The key difference in the litigation plan relates to notice to class members of certification. The notice program has been designed to take into account the communication challenges of persons with visual disabilities. Michael Potvin (“Potvin”) is the programs and communications manager at the Canadian Council of the Blind and has provided an affidavit that provides direction on notice to the class members.
Affidavit of Michael Potvin at paras. 1-3, Motion Record, Tab 6.
Potvin notes that the challenges of communication with persons who are blind, visually impaired or deaf-blind, include:
ar) reaching those who are isolated from the local community;
as) reaching those who are not technically savvy through popular modern day forms of communication such as email and web-based media; and
at) reaching members through traditional print-based mediums such as newspaper ads is difficult.
Affidavit of Michael Potvin at para. 9, Motion Record, Tab 6.
With these challenges in mind, Potvin recommends that notice of certification combine the use of websites, email and communication through national organizations. There should also be newspaper ads directed to the friends and family members of the class.
Affidavit of Michael Potvin at para. 12, Motion Record, Tab 6.
Finally, Potvin recommends that there be a phone ‘blast’ of the notice based on a list of former students from Ross MacDonald. A phone blast involves distributing a notice through an automatic phone-dialer that calls every number on a list and plays a voice-recording through the telephone. The phone blast should be short, identify who would be a class member and direct the class members to either a website with the full notice or a telephone hotline with an automated recording of the notice.
Affidavit of Michael Potvin at para. 13, Motion Record, Tab 6.
ORDER REQUESTED
THE PLAINTIFF REQUESTS THAT THE MOTION FOR CERTIFICATION BE GRANTED, THAT THE CLASS DEFINITIONS AND COMMON ISSUES BE DEFINED AS SET OUT ABOVE, THAT HE BE APPOINTED AS THE REPRESENTATIVE PLAINTIFF AND THAT THE COSTS OF THIS MOTION BE ORDERED AGAINST THE CROWN IN THE AMOUNT OF $100,000, PAYABLE FORTHWITH.
Since November 23, 2011, class counsel has made repeated requests of the Crown to advise what components of the section 5(1) certification test the Crown intends to oppose at the return of the motion on April 10, 2012. To date, the Crown has not done so.
In light of the Crown’s failure to advise of its position, the lack of responding evidence and the Crown’s decision to conduct only a brief cross-examination of one affiant out of the 10 affidavits in support of certification, the plaintiff seeks costs from November 23, 2011 onward on a substantial indemnity basis. This includes costs relating to factum preparation, repeated requests to narrow the issues for the motion and motion attendance.
ALL OF WHICH IS RESPECTFULLY SUBMITTED this 25th day of January 2012
________________________________
Kirk M. Baert
________________________________
Celeste B. Poltak
________________________________
Jonathan Bida
Lawyers for the Plaintiff
SCHEDULE “A” – AUTHORITIES
1A. Dolmage v. Ontario, 2010 ONSC 1726, [2010] O.J. No. 5187 (S.C.J.).
1B. Dolmage v. Ontario, 2010 ONSC 6131, [2010] O.J. No. 5172 (Div. Ct.).
1C. Order dated July 30, 2010 in Dolmage v. Ontario, CV-09-376927CP.
2. Cloud v. Canada (Attorney General) (2004), 73 O.R. (3d) 401, [2004] O.J. No. 4924 (C.A.).
3. Rumley v. British Columbia, [2001] 3 S.C.R. 184, [2001] S.C.J. No. 39.
4. Richard v. British Columbia, 2005 BCSC 372.
5. Certification Order in Clark v. Ontario, CV-10-411911.
6. Certification Order in Bechard v. Ontario, CV-10-417343CP.
7. Johnston v. The Sheila Morrison Schools, 2010 ONSC 3334, [2010] O.J. No. 2473 (S.C.J.).
8. Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, [1990] S.C.J. No. 93.
9. Hollick v. Toronto (City), [2001] 3 S.C.R. 158, [2001] S.C.J. No. 67.
10. K.L.B. v. British Columbia, [2003] 2 S.C.R. 403, [2003] S.C.J. No. 51.
11A. E.D.G. v. Hammer, 53 B.C.L.R. (3d) 89, [1998] B.C.J. No. 992 (S.C.).
11B. E.D.G. v. Hammer, [2003] 2 S.C.R. 459, [2003] S.C.J. No. 52.
12. Ontario Public Service Employees Union v. Ontario, [2005] O.T.C. 357, [2005] O.J. No. 1841 (S.C.J.).
13. Frame v. Smith, [1987] 2 S.C.R. 99, [1987] S.C.J. No. 49.
14. Brown v. Canada (Attorney General), 102 O.R. (3d) 493, 2010 ONSC 3095, [2010] O.J. No. 2253 (S.C.J.).
15. Wheadon v. Bayer Inc., 2004 NLSCTD 72, [2004] N.J. No. 147.
16. 1176560 Ontario Ltd. v. Great Atlantic & Pacific Co. of Canada, 62 O.R. (3d) 535, [2002] O.J. No. 4781 (S.C.J.).
17. Bunn v. Ribcor Holdings Inc., 65 O.T.C. 100, [1998] O.J. No. 1790 (Gen. Div.).
18. LeFrancois v. Guidant Corp., [2009] O.J. No. 2481 (S.C.J.).
19. Campbell v. Flexwatt (1997), [1998] W.W.R. 275, [1997] B.C.J. No. 2477 (C.A.).
SCHEDULE “B” – Relevant STATUTory provisions
RULES OF CIVIL PROCEDURE, R.R.O. 1990, REG. 194.
RULE 21 DETERMINATION OF AN ISSUE BEFORE TRIAL
WHERE AVAILABLE
To Any Party on a Question of Law
21.01 (1) A party may move before a judge,
(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
(2) No evidence is admissible on a motion,
(a) under clause (1) (a), except with leave of a judge or on consent of the parties;
(b) under clause (1) (b).
To Defendant
(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
Jurisdiction
(a) the court has no jurisdiction over the subject matter of the action;
Capacity
(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have the legal capacity to be sued;
Another Proceeding Pending
(c) another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter; or
Action Frivolous, Vexatious or Abuse of Process
(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,
and the judge may make an order or grant judgment accordingly.
MOTION TO BE MADE PROMPTLY
21.02 A motion under rule 21.01 shall be made promptly and a failure to do so may be taken into account by the court in awarding costs.
FACTUMS REQUIRED
21.03 (1) On a motion under rule 21.01, each party shall serve on every other party to the motion a factum consisting of a concise argument stating the facts and law relied on by the party.
(2) The moving party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least seven days before the hearing.
(3) The responding party’s factum shall be served and filed with proof of service in the court office where the motion is to be heard at least four days before the hearing.
(4) Revoked: O. Reg. 394/09, s. 5.
Class Proceedings Act, 1992, S.O. 1992, c. 6.
Certification
5.(1) The court shall certify a class proceeding on a motion under section 2, 3 or 4 if,
(a) the pleadings or the notice of application discloses a cause of action;
(b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;
(c) the claims or defences of the class members raise common issues;
(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and
(e) there is a representative plaintiff or defendant who,
(i) would fairly and adequately represent the interests of the class,
(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and
(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.
Idem, subclass protection
(2) Despite subsection (1), where a class includes a subclass whose members have claims or defences that raise common issues not shared by all the class members, so that, in the opinion of the court, the protection of the interests of the subclass members requires that they be separately represented, the court shall not certify the class proceeding unless there is a representative plaintiff or defendant who,
(a) would fairly and adequately represent the interests of the subclass;
(b) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the subclass and of notifying subclass members of the proceeding; and
(c) does not have, on the common issues for the subclass, an interest in conflict with the interests of other subclass members.
Evidence as to size of class
(3) Each party to a motion for certification shall, in an affidavit filed for use on the motion, provide the party’s best information on the number of members in the class.
Child and Family Services Act, R.S.O. 1990, c. C.11
Duty to Report
Duty to report child in need of protection
72. (1) Despite the provisions of any other Act, if a person, including a person who performs professional or official duties with respect to children, has reasonable grounds to suspect one of the following, the person shall forthwith report the suspicion and the information on which it is based to a society:
1. The child has suffered physical harm, inflicted by the person having charge of the child or caused by or resulting from that person’s,
i. failure to adequately care for, provide for, supervise or protect the child, or
ii. pattern of neglect in caring for, providing for, supervising or protecting the child.
2. There is a risk that the child is likely to suffer physical harm inflicted by the person having charge of the child or caused by or resulting from that person’s,
i. failure to adequately care for, provide for, supervise or protect the child, or
ii. pattern of neglect in caring for, providing for, supervising or protecting the child.
3. The child has been sexually molested or sexually exploited, by the person having charge of the child or by another person where the person having charge of the child knows or should know of the possibility of sexual molestation or sexual exploitation and fails to protect the child.
4. There is a risk that the child is likely to be sexually molested or sexually exploited as described in paragraph 3.
5. The child requires medical treatment to cure, prevent or alleviate physical harm or suffering and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, the treatment.
6. The child has suffered emotional harm, demonstrated by serious,
i. anxiety,
ii. depression,
iii. withdrawal,
iv. self-destructive or aggressive behaviour, or
v. delayed development,
and there are reasonable grounds to believe that the emotional harm suffered by the child results from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.
7. The child has suffered emotional harm of the kind described in subparagraph i, ii, iii, iv or v of paragraph 6 and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to remedy or alleviate the harm.
8. There is a risk that the child is likely to suffer emotional harm of the kind described in subparagraph i, ii, iii, iv or v of paragraph 6 resulting from the actions, failure to act or pattern of neglect on the part of the child’s parent or the person having charge of the child.
9. There is a risk that the child is likely to suffer emotional harm of the kind described in subparagraph i, ii, iii, iv or v of paragraph 6 and that the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, services or treatment to prevent the harm.
10. The child suffers from a mental, emotional or developmental condition that, if not remedied, could seriously impair the child’s development and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, treatment to remedy or alleviate the condition.
11. The child has been abandoned, the child’s parent has died or is unavailable to exercise his or her custodial rights over the child and has not made adequate provision for the child’s care and custody, or the child is in a residential placement and the parent refuses or is unable or unwilling to resume the child’s care and custody.
12. The child is less than 12 years old and has killed or seriously injured another person or caused serious damage to another person’s property, services or treatment are necessary to prevent a recurrence and the child’s parent or the person having charge of the child does not provide, or refuses or is unavailable or unable to consent to, those services or treatment.
13. The child is less than 12 years old and has on more than one occasion injured another person or caused loss or damage to another person’s property, with the encouragement of the person having charge of the child or because of that person’s failure or inability to supervise the child adequately.
Ongoing duty to report
(2) A person who has additional reasonable grounds to suspect one of the matters set out in subsection (1) shall make a further report under subsection (1) even if he or she has made previous reports with respect to the same child.
Person must report directly
(3) A person who has a duty to report a matter under subsection (1) or (2) shall make the report directly to the society and shall not rely on any other person to report on his or her behalf.
Offence
(4) A person referred to in subsection (5) is guilty of an offence if,
(a) he or she contravenes subsection (1) or (2) by not reporting a suspicion; and
(b) the information on which it was based was obtained in the course of his or her professional or official duties.
Same
(5) Subsection (4) applies to every person who performs professional or official duties with respect to children including,
(a) a health care professional, including a physician, nurse, dentist, pharmacist and psychologist;
(b) a teacher, person appointed to a position designated by a board of education as requiring an early childhood educator, school principal, social worker, family counsellor, operator or employee of a day nursery and youth and recreation worker;
(b.1) a religious official, including a priest, a rabbi and a member of the clergy;
(b.2) a mediator and an arbitrator;
(c) a peace officer and a coroner;
(d) a solicitor; and
(e) a service provider and an employee of a service provider.
Same
(6) In clause (5) (b),
“youth and recreation worker” does not include a volunteer.
Same
(6.1) A director, officer or employee of a corporation who authorizes, permits or concurs in a contravention of an offence under subsection (4) by an employee of the corporation is guilty of an offence.
Same
(6.2) A person convicted of an offence under subsection (4) or (6.1) is liable to a fine of not more than $1,000.
Section overrides privilege
(7) This section applies although the information reported may be confidential or privileged, and no action for making the report shall be instituted against a person who acts in accordance with this section unless the person acts maliciously or without reasonable grounds for the suspicion.
Exception: solicitor client privilege
(8) Nothing in this section abrogates any privilege that may exist between a solicitor and his or her client.
Conflict
(9) This section prevails despite anything in the Personal Health Information Protection Act, 2004.
Education Act, R.S.O. 1990, c. E.2
Schools for deaf, blind; demonstration schools
Continuation of school for deaf
13. (1) The Ontario School for the Deaf for the education and instruction of the deaf and partially deaf is continued under the name Ontario School for the Deaf in English and École provinciale pour sourds in French.
Continuation of school for blind
(2) The Ontario School for the Blind for the education and instruction of the blind and partially blind is continued under the name Ontario School for the Blind in English and École provinciale pour aveugles in French.
Administration
(3) Both schools are under the administration of the Minister.
Additional schools
(4) Subject to the approval of the Lieutenant Governor in Council, the Minister may establish, maintain and operate one or more additional schools for the deaf or schools for the blind.
Idem
(4.1) A demonstration school may provide, in a residential or non-residential setting, special education programs and special education services for exceptional pupils with learning disabilities or with hearing or visual impairments.
Demonstration schools
(5) Subject to the approval of the Lieutenant Governor in Council, the Minister may,
(a) establish, maintain and operate one or more demonstration schools; or
(b) enter into an agreement with a university to provide for the establishment, maintenance and operation by the university, under such terms and conditions as the Minister and the university may agree upon, of a demonstration school,
for exceptional pupils whose learning disabilities are such that a residential setting is required.
Idem
(6) A demonstration school referred to in subsection (5) that was established by the Minister before the 12th day of December, 1980 is deemed not to be a school operated by the Ministry of Education for the purposes of the Provincial Schools Negotiations Act, and the Provincial Schools Authority is not responsible for any matter relating to the employment of teachers at a demonstration school.
Regulations
(7) Subject to the approval of the Lieutenant Governor in Council, the Minister may, in addition to his or her powers under section 11, make regulations with respect to schools continued or established under this section,
(a) prescribing the terms and conditions upon which pupils may,
(i) be admitted to, and remain in, a school,
(ii) reside in homes approved by a superintendent, and
(iii) be discharged from a school;
(b) authorizing the Minister to appoint a committee to determine any question concerning the eligibility for admission of an applicant;
(c) prescribing the fees, if any, that shall be paid in respect of pupils or any class or classes thereof;
(d) authorizing the payment of part or all of the transportation costs of pupils whose parents or guardians reside in Ontario, and fixing the maximum amount that may be paid;
(e) authorizing a superintendent to establish rules in respect of pupils admitted to the school;
(f) authorizing a superintendent to specify the type and minimum amount of clothing that a parent or guardian shall provide for a pupil;
(g) requiring a parent or guardian to deposit a sum of money with the business administrator of a school for the purpose of defraying the personal incidental expenses of a pupil, and fixing the amount of the deposit;
(h) authorizing a superintendent to dismiss a pupil and prescribing procedures in respect thereof;
(i) authorizing the Minister to provide training for, and certification of, teachers of the deaf and of the blind;
(j) designating the name of each school continued or established under this section;
(k) respecting the operation of junior kindergarten, kindergarten and extended day programs in the schools and respecting the appointment of early childhood educators to positions in junior kindergarten, kindergarten and extended day programs in the schools.
Family Law Act, R.S.O. 1990, c. F.3
Right of dependants to sue in tort
61. (1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.
Damages in case of injury
(2) The damages recoverable in a claim under subsection (1) may include,
(a) actual expenses reasonably incurred for the benefit of the person injured or killed;
(b) actual funeral expenses reasonably incurred;
(c) a reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;
(d) where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and
(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred.
Contributory negligence
(3) In an action under subsection (1), the right to damages is subject to any apportionment of damages due to contributory fault or neglect of the person who was injured or killed.
(4) Repealed: 2002, c. 24, Sched. B, s. 25.
Family Law Reform Act, 1978, S.O. 1978, c. 2
60(1) Where a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part II, children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction.
(2) The damages recoverable in a claim under subsection (1) may include,
(a) actual out-of-pocket expenses reasonably incurred for the benefit of the injured person;
(b) a reasonable allowance for travel expenses actually incurred in visiting the injured person during his treatment or recovery;
(c) where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the injured person, a reasonable allowance for loss of income or the value of the services; and
(d) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the injured person if the injury had not occurred.
(3) In an action under subsection (1), the right to damages is subject to any apportionment of damages due to contributory fault or neglect of the person who was injured or killed.
(4) Not more than one action lies under subsection (1) for and in respect of the same occurrence, and no such action shall be brought after the expiration of two years from the time the cause of action arose.
Proceedings Against the Crown Act, R.S.O. 1990, c. P.27
Right to sue Crown without fiat
3. A claim against the Crown that, if this Act had not been passed, might be enforced by petition of right, subject to the grant of a fiat by the Lieutenant Governor, may be enforced as of right by a proceeding against the Crown in accordance with this Act without the grant of a fiat by the Lieutenant Governor. R.S.O. 1990, c. P.27, s. 3.
Liability in tort
5. (1) Except as otherwise provided in this Act, and despite section 71 of Part VI (Interpretation) of the Legislation Act, 2006, the Crown is subject to all liabilities in tort to which, if it were a person of full age and capacity, it would be subject,
(a) in respect of a tort committed by any of its servants or agents;
(b) in respect of a breach of the duties that one owes to one’s servants or agents by reason of being their employer;
(c) in respect of any breach of the duties attaching to the ownership, occupation, possession or control of property; and
(d) under any statute, or under any regulation or by-law made or passed under the authority of any statute.
SCHEDULE "C"
Court File No. 11-420734
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
ROBERT SEED
Plaintiff
- and -
HER MAJESTY THE QUEEN
IN RIGHT OF THE PROVINCE OF ONTARIO
Defendant
Proceeding under the Class Proceedings Act, 1992
AMENDED STATEMENT OF CLAIM
TO THE DEFENDANT
A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the plaintiff. The claim made against you is set out in the following pages.
IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you must prepare a statement of defence in Form 18A prescribed by the Rules of Civil Procedure, serve it on the plaintiff's lawyer or, where the plaintiff does not have a lawyer, serve it on the plaintiff, and file it, with proof of service, in this court office, WITHIN TWENTY DAYS after this statement of claim is served on you, if you are served in Ontario.
If you are served in another province or territory of Canada or in the United States of America, the period for serving and filing your statement of defence is forty days. If you are served outside Canada and the United States of America, the period is sixty days.
Instead of serving and filing a statement of defence, you may serve and file a notice of intent to defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more days within which to serve and file your statement of defence.
IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.
|Date |February 22, 2011 |Issued by | |
| | |Local registrar |
| |Address of |393 University Avenue |
| |court office |10th Floor |
| | |Toronto, ON M5G 1E6 |
TO: HER MAJESTY THE QUEEN IN RIGHT
OF THE PROVINCE OF ONTARIO
Crown Law Office – Civil Law
720 Bay Street
8th Floor
Toronto, ON M5G 2K1
Tel.: 416-325-8535
Fax: 416-326-4181
CLAIM
THE PLAINTIFF CLAIMS:
au) an order certifying this action as a class proceeding and appointing the plaintiff as representative plaintiff for the Class (as defined below);
av) a declaration that the defendant breached its fiduciary duties to the plaintiff and the Student Class through the establishment, funding, operation, management, administration, supervision and control of the W. Ross MacDonald School for the Blind and its predecessors (“Ross MacDonald”);
aw) a declaration that the defendant is liable to the plaintiff and the Student Class for the damages caused by its breach of its common law duties in relation to the establishment, funding, operation, management, administration, supervision and control of Ross MacDonald;
ax) a declaration that the defendant is liable to the Family Class for the damages resulting from the injuries to members of the Student Class;
ay) damages for negligence and breach of fiduciary duty, in the amount of $200 million, or such other sum as this Honourable Court may find appropriate;
az) damages pursuant to section 61 of the Family Law Act, R.S.O. 1990, c. F.3 and/or the equivalent legislation in other provinces.
ba) punitive damages in the amount of $25 million;
bb) prejudgment and postjudgment interest pursuant to the Courts of Justice Act, R.S.O. 1990, c. C.43;
bc) costs of the action on a substantial indemnity basis or in an amount that provides full indemnity to the plaintiff;
bd) the costs of notice and of administering the plan of distribution of the recovery in this application, plus applicable taxes, pursuant to section 26 of the Class Proceedings Act, 1992, S.O. 1992, c. 6; and
be) such further and other relief as this Honourable Court may deem just.
Overview
Ross MacDonald was at all material times a provincially-operated elementary and secondary school for children with visual disabilities. The vast majority of students lived in residence and had minimal contact with their families during the school year. These children were under the Crown’s exclusive control and care.
Throughout its long period of operation, those caring for the students at Ross MacDonald have often approached them with contempt, prejudice, indifference and abuse. Students have suffered physical and mental abuse at the hands of teachers, residence counsellors, other students and employees of the institution.
Every aspect of students’ lives was dictated, controlled and provided for by the Crown. Students at Ross MacDonald had no control over any aspect of their lives. The students lived by the bell and the whistle: they woke them in the morning, they lined them up for meals and they sent them to bed. The students were children at the mercy of the adults that cared for them and were particularly vulnerable as a result of their disabilities.
The Parties
The plaintiff Robert Seed ("Seed") is a former student of Ross MacDonald. He attended the school and lived in residence from 1954 to 1965. At the time, the school was called the Ontario School for the Blind and the residence counsellors were called house mothers and fathers. Seed resides in Thunder Bay, Ontario.
The defendant Her Majesty the Queen in right of the Province of Ontario (the “Crown”) is named in these proceedings pursuant to the provisions of the Proceedings Against the Crown Act, R.S.O. 1990, c. P. 27.
The Crown, through and with its agents, servants and employees, was at all material times responsible for the operation, funding and supervision of Ross MacDonald as a school for primary and secondary students who are visually impaired, blind and deaf-blind. Students came from throughout Ontario and other provinces to attend Ross MacDonald. The vast majority of students lived in residence during their studies. Ross MacDonald is a provincial school and operates under section 13 of the Education Act, R.S.O. 1990, c. E.2. It is under the authority of the Provincial Schools Branch within the Learning and Curriculum Division of the Ministry of Education.
Ross MacDonald opened in 1872 as the Ontario Institution for the Education of the Blind. It was under the control of the Department of the Provincial Secretary until 1904, after which it was under the jurisdiction of the Department of Education (later the Ministry of Education). It was later renamed the Ontario School for the Blind and renamed again in 1974 as the W. Ross Macdonald School.
The school and residence are located in Brantford, Ontario and are under the sole jurisdiction and control of, and are operated by, the Crown. The Crown retains and authorizes servants, agents, representatives and employees to operate Ross MacDonald and gives instructions to such servants, agents, representatives and employees as to the manner in which the school and residence are to function and operate.
The staff members responsible for caring for the students while they are in residence were called “house mothers” or “house fathers” for many years. At some point in the 1960s or 1970s, the school stopped using these terms and adopted the title of residence counsellor.
The plaintiff brings this action pursuant to the Class Proceedings Act, 1992 on his own behalf and on behalf of the Class, comprising: all other persons who have attended or resided at Ross MacDonald from 1945 to the present day (the “Class” or “Class Members”).
bf) all persons who have attended or resided at Ross MacDonald between January 1, 1951 to the present day and who were alive as of February 22, 2009 (“Student Class”); and
bg) all spouses, children, grandchildren, parents, grandparents, and siblings of persons who resided at Ross MacDonald between March 31, 1978 to the present day, who were alive as of February 22, 2009. (“Family Class”).
MISTREATMENT OF StudentS and CONDITIONS at THE School
Throughout the class period, the residence counsellors, teachers and administrators at Ross MacDonald treated the students with contempt, prejudice and indifference. They engaged in abusive conduct, often taking advantage of the visual disabilities of students.
Students Suffered Capricious, Violent and Humiliating Punishment
The residence counsellors and teachers often inflicted capricious, violent and humiliating punishments on students.
Students were frequently punished for minor or innocuous matters such as being homesick, wetting the bed, throwing up, having trouble reading or using too much toilet paper.
The teachers and residence counsellors used physical violence as a means of discipline. This would include beating, shoving students, throwing books and other school equipment at students during classes, making students drink from urinals, slapping students with the bare hand or with classroom objects such as books and grabbing students by the hair. Students caught speaking at night, even as young as six (6) years old, endured a counsellor jumping on their backs and beating them. Students were force-fed at mealtimes, were forced to eat their own vomit as punishment for throwing up and in some cases had their mouths literally washed out with soap.
Students also suffered humiliation and bullying at the hands of their caregivers. The teachers and residence counsellors would take advantage of the students’ disabilities. For instance, punishment included leaving a student alone in the dormitory hallway at night, even though he or she was visually impaired and would be disoriented. In another example, a teacher during class spun a blind student around several times and then left him to find his seat. Staff would also take advantage of disabilities by sneaking up on students during their private conversations.
Mealtimes and the Military Atmosphere
Mealtimes were horrible experiences for many students. Students were force-fed if they did not eat their meals. The residence counsellors would push a fork of food into a student’s mouth, sometimes to the point of the student vomiting. Students had to learn to close their teeth to avoid this experience.
Ross MacDonald had a military atmosphere. Everything was regimented with bells, whistles and lining up. There were no choices about where to sleep or sit at meals. Students were expected to know the rules and were punished for breaking minor rules. Punishment was arbitrary.
Ross MacDonald did little or nothing to prepare visually impaired students for life and the attitudes of seeing people. There was a 'conveyor-belt' mentality where the objective was to get the students in and out of the school. There was a lack of concern for students.
Students were isolated from the community and family and became dependent on the staff and environment at Ross MacDonald. They were not prepared for the broader community. Staff did not foster their identities as independent individuals. Underestimation of the students’ potential was pervasive and reinforced.
Staff Were Unqualified and Failed to Supervise Students
The residence counsellors, traditionally (and sadly) called “house mothers” and “house fathers”, were ill-educated, unqualified and poorly paid. There was always an expectation that residence counsellors would act in a parental capacity for students, which included assisting with homework. However, the pervasive lack of qualifications amongst the residence counsellors prevented them from fulfilling this role.
Staff were hired without reference checks (or even criminal reference checks), despite the fact that they were hired to work with children. There was also uncertainty amongst staff as to what their role, duties and reporting requirements were. There was no orientation for new staff and insufficient training in dealing with children or students with disabilities. Supervision of staff was irregular and unfocused. There was also inappropriate relationships between staff and students.
There was a failure to properly supervise students, which created an environment where assault amongst students was widespread. There were instances of sexual assault by male students against other male students that was known to staff. The residence counsellors failed to intervene or address the situation even though there were complaints. There was also violence amongst students. The staff would shrug it off or say that it was “deserved”. Employees ignored these behaviours, conducts and complaints. The residence counsellors took a hands-off approach. They saw their role as limited to ensuring students did not get hurt or break rules. Students raised themselves, as the school lacked any sort of parental figures.
tHE PLAINTIFF’S EXPERIENCES AT W. ROSS MACDONALD SCHOOL
Seed, just like almost all students, lived in residence while attending Ross MacDonald. He entered at Ross MacDonald when he was seven (7) years old in 1954 and left in 1965. Seed suffered abuse as a student and resident of Ross MacDonald.
For instance, Mr. Halliwell was a house father while Seed was in residence. He would invite students into his room for “religious classes”. Seed was invited to Halliwell’s room for tea on one occasion. Halliwell attempted to get Seed on his bed and made sexual advances towards him. Seed was able to fend off these advances and left.
Seed also suffered at the hands of George Barney, a teacher. Barney would punch students, slap them on their bare stomach or throw books and other items at students in class. On one occasion, Barney threw a brailler[2] at a student. He was also verbally abusive, telling students they were “losers” or “would not get very far in life”. The other teachers and administration were aware of Barney’s conduct, but did not take action to minimize or eliminate it.
Seed spoke to the Ministry of Education about abuse at Ross MacDonald. The Ministry admitted there were cases of alleged abuse, but advised him that too many years had passed for the Ministry to take any action.
KNOWLEDGE OF THE CROWN and its hands-off approach
The Crown knew or ought to have known of the conditions at Ross MacDonald, including the pervasive use of arbitrary, violent and humiliating punishments.
In 1950, the Royal Commission on Education in Ontario visited Ross MacDonald and presented a report setting out findings and recommendations. The report at page 385 described the substandard and unsafe conditions of the school:
… frankly, we were appalled by the conditions under which the staff and students work. The school buildings, with the exception of the residences, are inadequate, antiquated, dilapidated, dismal, poorly lighted, and constitute a fire hazard of first magnitude. … Such deficiency in school plan, particularly where blind children are in attendance, is inexcusable. …
Despite the report’s findings, conditions at the Ross MacDonald continued to be well below appropriate standards.
In May 1991, the Ministry of Education received complaints of sexual abuse of students at two of the provincial schools. This led the Ministry of Education to undertake a review of the provincial schools. The Ministry produced a report titled “Report of the Review of Student Care at the Provincial Schools for the Deaf and Blind and Demonstration Schools” dated December 1991 (the “1991 Report”).
The 1991 Report described conditions at the provincial schools including the lack of supervision and ill-qualification of staff. It noted the focus was on the needs of the schools as opposed to those of the children: “the primary determinants when major decisions are being made are often the use and appearance of the buildings, administrative, financial implications, conflict avoidance and tradition.” The report concluded that human resource management was weak, safeguards were not in place to protect children’s rights and interests, there were safety issues and the buildings were unsuitable for children. It found that “the conditions in the school which mitigate against the well-being of children, are significant.”
In particular, the 1991 Report found:
bh) students were vulnerable as they were living in residence and because of their disabilities;
bi) they were isolated from the community and family and became dependent on the staff and environment at Ross MacDonald;
bj) underestimation of the students’ potential was pervasive and reinforced;
bk) there was minimal participation by the Crown’s Human Resources Branch in managing human resources which led to a failure to implement appropriate practices and policies;
bl) staff were hired without reference checks or criminal record checks;
bm) there was no orientation for staff, nor training in dealing with students with disabilities;
bn) there was an environment of hostility amongst staff as residential staff were seen as inferior to education staff and junior teachers were treated as inferior to senior teachers;
bo) staff were unfamiliar with students’ rights and in particular the rights to have “respectful and consistent interaction with staff, freedom from harsh and degrading communication, and freedom from corporal punishment.”;
bp) discipline was applied inconsistently and was perceived as punitive and excessive;
bq) the Ministry of Education lacked any residential standards for the schools;
br) the child abuse reporting policies were inadequate and staff were not trained in child abuse reporting. Staff were merely required to report abuse to their superiors and did not require reporting to the Children’s Aid Society, contrary to the Child and Family Services Act;
bs) supervision in the residences was inadequate, particularly at night which led to incidents of sexual involvement between students, inappropriate touching and complaints of sexual assault;
bt) students were able to leave the residences without signing-out and security guards did not know who entered or left the buildings;
bu) night-time staff coverage was unsatisfactory and represented a risk to residents, sometimes only one (1) staff member monitoring in excess of thirty (30) children;
bv) residential staff needed training as counsellors and in communication skills;
bw) “urgent attention” was required for training of residential staff as they lacked training in First Aid, safe holding techniques, child abuse reporting and coping with aggressive behaviour;
bx) training was required in relation to appropriate relationships between staff and students as there was dating between staff and older students;
by) buildings were “institutional, old, oppressive and in need of major renovation or replacement” making the residences unsuitable for children, especially young children, and making it impossible to create a homelike environment; and
bz) students did not have sufficient privacy or psychological security. Bathrooms were industrial and/or institutional and some did not have doors on the bathroom stalls and most students did not have private space in the bedroom areas.
Furthermore, the Crown was at material times in possession of a school policy directed at teachers that specifically provided for corporal punishment, being “punishment to the body”. The policy notes that corporal punishment includes “slapping, hitting with a ruler, spanking, cuffing on the side of the head and using the strap.” Its policy advises staff not to “slap or cuff a child or hit him with a ruler, stick or other object”, not to “punish a child when you are angry; you might overdo it, unwittingly” and that spanking should be done with a witness.
The Crown’s Fiduciary Duties
All individuals who attended or resided at Ross MacDonald were under the authority and care of the Crown, with the Crown as their guardian, and were persons to whom the Crown owed fiduciary duties. These duties included, but were not limited to, the duty to ensure the safety and reasonable care of students, the duty to protect students while at Ross MacDonald and the duty to protect the Student Class from intentional torts perpetrated on them while at Ross MacDonald.
Ross MacDonald students had a reasonable expectation that the Crown would act in their best interests with respect to their care and in the operation of Ross MacDonald by virtue of the following:
ca) the involvement of the Crown in the establishment of Ross MacDonald;
cb) the long standing dependence of Ross MacDonald students on the Crown;
cc) the fact that the students were minor children, all of whom suffered from a disability to varying extents;
cd) the fact that the Ross MacDonald environment was itself further disabling to these individuals, physically, emotionally and psychologically; and
ce) the vulnerability of Ross MacDonald students as a result of their disabilities.
At all material times, the students who attended and resided at Ross MacDonald were entirely and exclusively within the power and control of the Crown and were subject to the unilateral exercise of the Crown’s power or discretion. By virtue of the relationship between disabled children and the Crown, being one of trust, reliance and dependence by the students, the Crown owed a fiduciary duty to ensure students were treated respectfully, fairly, safely and in all ways consistent with the obligations of a party standing in loco parentis to an individual under his or her care or control.
In particular, as a result of its sole jurisdiction over the operation of Ross MacDonald, the Crown owed fiduciary duties to the Student Class Members which include, but are not limited to,
cf) properly, effectively and in good faith supervising the Ross MacDonald environment and the conduct of its employees to ensure students would not suffer harm;
cg) ensuring that physical, emotional and sexual abuse would not occur;
ch) protecting students from any person or thing which would endanger or be injurious to their health and well-being;
ci) placing the interests of students ahead of the Crown, its agents, employees and other persons under the Crown supervision;
cj) using reasonable care to ensure the safety, well-being and protection of students;
ck) providing a safe environment and in particular, one free from physical, sexual and psychological assault or harm;
cl) setting or implementing standards of conduct for its employees and Ross MacDonald students to ensure that no employee or student would endanger the health or well-being of any student or person;
cm) pursuing and investigating complaints of physical, sexual or psychological abuse in good faith;
cn) taking any and all reasonable steps to prevent and end physical, sexual or psychological abuse upon learning of a complaint;
co) reporting conduct which is allegedly contrary to the Criminal Code of Canada to the appropriate law enforcement agency and the Children’s Aid Society upon learning the particulars of such a complaint; and
cp) providing proper and reasonable treatment for students upon learning of abuse.
The Crown Breached its Fiduciary DUTIES to the Class
The Crown breached its fiduciary duties. The Crown operated or caused to be operated a school and residential facility whose students, including the plaintiff and Student Class Members, were systemically subject to abuse, mistreatment and poor living conditions, amongst other things, caused or permitted by the Crown. The Crown knew of, or was wilfully blind to, the conditions at Ross MacDonald, including the pervasive use of arbitrary, violent and humiliating punishments and the wholly inadequate supervision of students.
The students who attended or resided at Ross MacDonald were entitled to rely and did rely upon the Crown, to their detriment, to fulfill their fiduciary obligations. The particulars of the Crown’s breach of its fiduciary obligations include, but are not limited to:
cq) failing to take a proper and good faith interest in the operation and supervision at Ross MacDonald, despite its quasi-parental, or in loco parentis, role in respect of the students under its responsibility;
cr) failing to investigate injuries sustained by students;
cs) failing to provide adequate medical care for students;
ct) failing to report allegations of physical, emotional or sexual abuse, including the failure to report such conduct in accordance with the Child and Family Services Act;
cu) failing to properly screen applicants for staff positions at Ross MacDonald, which included failing to conduct criminal background checks or reference checks;
cv) hiring caregivers and others to work at Ross MacDonald who were not qualified to meet the needs of the individuals under their care and supervision;
cw) putting its own interests, and those of its employees, agents and other persons under its supervision, ahead of the interests of students;
cx) failing to properly supervise the Ross MacDonald environment, including its administration and activities;
cy) failing to provide adequate financial resources or support to properly care and provide for Ross MacDonald students;
cz) failing to respond adequately, or at all, to complaints or recommendations which were made concerning Ross MacDonald, both with respect to its condition and the treatment of students, including complaints of physical, emotional and sexual abuse;
da) creating, permitting and fostering an atmosphere of fear and intimidation among the disabled children at Ross MacDonald;
db) failing to safeguard the physical and emotional needs of the Student Class;
dc) permitting unhealthy and inappropriate punishments to be perpetrated against the Student Class; and
dd) permitting an atmosphere that threatened the Student Class with physical punishments, including violence.
As a result of these breaches, the Student Class Members suffered damages as set out in paragraphs 4849 and 4950 below.
The Crown’s Duty of Care
The Crown created, planned, established, set up, initiated, operated, financed, supervised, controlled and regulated Ross MacDonald during the class period.
Amongst other things, the Crown was solely responsible for:
de) the management, operation and administration of the Ministry of Education and its predecessor ministries and departments during the class period;
df) the administration of the Ministry of Education and the Education Act, R.S.O. 1990, c. E.2., and its predecessor statutes as well as any other statutes relating to education and disabled persons and all regulations promulgated under these statutes and their predecessors during the class period;
dg) the promotion of the health, safety and well-being of Student Class Members during the class period;
dh) decisions, procedures, regulations promulgated, operations and actions taken by the Ministry of Education, its employees, servants, officers and agents and its predecessors during the class period;
di) the construction, operation, maintenance, ownership, financing, administration, supervision, inspection and auditing of Ross MacDonald during the class period;
dj) the care and supervision of all members of the Student Class while they attended or resided at Ross MacDonald during the class period and for the supply of all the necessities of life to Student Class Members, in loco parentis, during the class period; and
dk) inspection and supervision of Ross MacDonald and all activities that took place therein during the class period.
The Crown owed common law duties to the Student Class Members which include, but are not limited to,
dl) properly and effectively supervising the Ross MacDonald environment and the conduct of its employees to ensure students would not suffer harm;
dm) using reasonable care to ensure the safety, well-being and protection of students;
dn) setting or implementing standards of conduct for its employees and Ross MacDonald students to ensure that no employee or student would endanger the health or well-being of any student or person;
do) providing students a program and system through which abuse would be recognized and reported;
dp) educating students and employees in the use of a system through which abuse would be recognized and reported;
dq) pursuing and investigating complaints of physical, sexual or psychological abuse with due diligence;
dr) taking any and all reasonable steps to prevent and end physical, sexual or psychological abuse upon learning of a complaint; and
ds) providing proper and reasonable treatment for students upon learning of abuse.
The Crown’s Negligence
The Crown acted negligently and in breach of its duty of care to Student Class Members in its establishment, operation, regulation, financing, supervision and control of Ross MacDonald.
The Crown breached its common law duties to the Student cClass through its negligent failure to proper supervise the operations and staff of Ross MacDonald. In particular, without limitation, the Crown acted negligently by:
dt) failing to investigate or report injuries sustained by students;
du) failing to provide adequate medical care for students;
dv) failing to properly screen applicants for staff positions at Ross MacDonald, which included failing to conduct criminal background checks or reference checks;
dw) hiring caregivers and others to work at Ross MacDonald who were not qualified to meet the needs of the individuals under their care and supervision;
dx) failing to set or implement standards of conduct for its employees and Ross MacDonald students with respect to the safety, health or well-being of students;
dy) failing to implement adequate policies for recognizing and reporting potential abuse of or harm to students;
dz) failing to educate students and employees in the use of a system through which abuse would be recognized and reported;
ea) failing to properly supervise the Ross MacDonald environment, including its administration and activities;
eb) failing to adequately, properly and effectively supervise the conduct of its employees, representatives and agents;
ec) failing to provide adequate financial resources or support to properly care and provide for Ross MacDonald students;
ed) failing to respond adequately, or at all, to complaints or recommendations which were made concerning Ross MacDonald, both with respect to its condition and the treatment of students, including complaints of physical, emotional and sexual abuse;
ee) permitting unhealthy and inappropriate punishments to be perpetrated against the Student Class; and
ef) permitting an atmosphere that threatened the Student Class with physical punishments, including violence.
The Student Class Members suffered damages as a result of the Crown’s negligence, the particulars of which are set out in paragraphs 4849 and 4950 below.
DAMAGES SUFFERED BY THE CLASS
The Crown knew, or ought to have known, that as a consequence of its operation, care and control of Ross MacDonald in breach of its fiduciary duties and in a negligent manner, the Class would suffer immediate and long-term physical, mental, emotional, psychological and spiritual harm.
Members of the Student Class were traumatized by their experiences arising from their attendance and residence at Ross MacDonald. As a result of the Crown’s breach of its fiduciary obligations and its negligence, including its failure to provide proper and adequate care or supervision, the Student Class Members suffered and continue to suffer damages which include, but are not limited to the following:
eg) emotional, physical and psychological harm;
eh) impairment of mental and emotional health and well-being;
ei) an impaired ability to trust other persons;
ej) a further impaired ability to participate in normal family affairs and relationships;
ek) alienation from family members;
el) depression, anxiety, emotional distress and mental anguish;
em) pain and suffering;
en) a loss of self-esteem and feelings of humiliation and degradation;
eo) an impaired ability to obtain and sustain employment, resulting either in lost or reduced income and ongoing loss of income;
ep) an impaired ability to deal with persons in positions of authority;
eq) an impaired ability to trust other individuals or to sustain relationships;
er) a sense of isolation and separateness from their community;
es) a requirement for medical or psychological treatment and counselling;
et) an impaired ability to enjoy and participate in recreational, social and employment activities;
eu) loss of friendship and companionship;
ev) sexual disorientation; and
ew) the loss of general enjoyment of life.
As a result of these injuries, the Student Class Members have required and will continue to require further medical treatment, rehabilitation, counselling and other care. Class Members, or many of them, will require future medical care and/or rehabilitative treatment, or have already required such services, as a result of the Crown’s conduct for which they claim complete indemnity, compensation and payment from the Crown for such services.
Members of the Family Class have suffered, and continue to suffer, loss of care, guidance and companionship which arises directly, or indirectly, from the physical, mental and emotional trauma sustained directly, or indirectly, by the Student Class. The harm suffered by the Family Class was reasonably foreseeable and was caused by the conduct of the Crown and its agents for whom they are in law responsible.
The plaintiff pleads that the Crown is strictly liable in tort for the damages set out above as the Crown was aware that students were being physically, emotionally and psychologically abused but permitted the abuse to occur. Further, the Crown is strictly liable in tort for the damages enumerated herein as the Crown was aware that its operation, management and control of Ross MacDonald was in breach of all educational and parental standards and in breach of the duties it owed to the Class Members.
Further, by virtue of its quasi-parental, or in loco parentis, responsibility for the safety, care and control of residents, the Crown is vicariously liable for the harms perpetrated upon students by its employees, representatives and agents.
punitive damages
The high-handed and callous conduct of the Crown warrants the condemnation of this Honourable Court. The Crown conducted its affairs with wanton and callous disregard for the Student Class Members’ interests, safety and well-being. The Crown breached its fiduciary duty and duty of good faith owed to Ross MacDonald students.
Over a long period of time, the plaintiff and the Student Class Members were treated in a manner that could only result in aggravated and increased mental stress and anxiety for vulnerable children already suffering from some degree of disability. The anxiety, depression and sub-standard conditions to which the Student Class Members were exposed have violated their rights and altered the paths of their lives.
In these circumstances, the plaintiff and the Student Class Members request aggravated and punitive damages to demonstrate to other educational institutions that such wilfully irresponsible and tortious behaviour will not be tolerated and will act as a deterrence to other institutions in Canada that are in the position of acting as caregivers to likewise vulnerable young children with disabilities.
Notice of this action was provided to Her Majesty, the Queen in Right of Ontario, on November 26, 2010.
This action is commenced pursuant to the Class Proceedings Act, 1992.
The Plaintiff pleads and relies on the Family Law Act, R.S.O. 1990, c. F.3.
The trial of the action should take place in the city of Toronto, in the Province of Ontario.
February 22, 2011 Koskie Minsky LLP
20 Queen Street West
Suite 900, Box 52
Toronto, ON M5H 3R3
Kirk M. Baert LSUC#: 30942O
Tel: 416-595-2117
Fax: 416-204-2889
Celeste Poltak LSUC#: 46207A
Tel: 416-595-2701
Jonathan Bida LSUC#: 54211D
Tel: 416-595-2072
Solicitors for the plaintiff
|ROBERT SEED |- and- |HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO |Court File No: 11-420734 |
| | |Defendant | |
|Plaintiff | | | |
| |ONTARIO |
| |SUPERIOR COURT OF JUSTICE |
| |Proceeding commenced at Toronto |
| |Proceeding under the Class Proceedings Act, 1992 |
| |AMENDED STATEMENT OF CLAIM |
| |Koskie Minsky LLP |
| |20 Queen Street West |
| |Suite 900, Box 52 |
| |Toronto, ON M5H 3R3 |
| | |
| |Kirk M. Baert LSUC#: 30942O |
| |Tel: 416-595-2117 |
| |Fax: 416-204-2889 |
| |Celeste Poltak LSUC#: 46207A |
| |Tel: 416-595-2701 |
| |Jonathan Bida LSUC#: 54211D |
| |Tel: 416-595-2072 |
| |Solicitors for the plaintiff |
|ROBERT SEED |and |HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO |Court File No: CV-11-420734 |
|Plaintiff | |Defendant | |
| |ONTARIO |
| |SUPERIOR COURT OF JUSTICE |
| |Proceeding commenced at Toronto |
| |Proceeding under the Class Proceedings Act, 1992 |
| | |
| |FACTUM OF THE PLAINTIFF |
| |(Motion For Certification - |
| |Returnable April 10-13, 2012) |
| |KOSKIE MINSKY LLP |
| |20 Queen Street West, Suite 900, Box 52 |
| |Toronto, Ontario |
| |M5H 3R3 |
| |Kirk M. Baert LSUC#: 30942O |
| |Tel: 416-595-2117 |
| |Fax: 416-204-2889 |
| | |
| |Celeste Poltak LSUC#: 46207A |
| |Tel: 416-595-2701 |
| |Fax: 416-204-2909 |
| | |
| |Jonathan Bida LSUC#: 54211D |
| |Tel: 416-595-2072 |
| |Fax: 416-204-2907 |
| | |
| |Lawyers for the Plaintiff |
-----------------------
[1] In contrast to the negligence claim, the claim for breach of fiduciary duty on behalf of the student class is not limited to the time period after 1963 as no such temporal limitation would be appropriate. In Huronia, Justice Cullity considered the Crown’s argument that the Proceedings Against the Crown Act barred breach of fiduciary claims for conduct before 1963 in the same way that it bars pre-1963 negligence claims. His Honour rejected the Crown’s argument. Justice Cullity found that while the statute might bar pre-1963 claims in negligence or tort, the same was not true for breach of fiduciary duty or equitable claims. Leave to appeal from this decision was denied. (Dolmage v. Ontario, supra at paras. 71-125, leave to appeal denied 2010 ONSC 6131 at paras. 9 and 10, Plaintiff’s Authorities, Tabs 1A & B). See also Ontario Public Service Employees Union v. Ontario, [2005] O.J. No. 1841 at para. 42 (S.C.J.), Plaintiff’s Authorities, Tab 12.
[2] A brailler or braille typewriter is a piece of equipment that visually-impaired persons use to assist in writing in braille. It weighs approximately 20 to 25 pounds.
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