ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CV-11-420734
DATE: 20120504

PROCEEDING UNDER the Class Action Proceedings Act, 1992 , S.O. 1992, C. 6

BETWEEN:

Robert Seed Plaintiff (Moving Party) – and – Her Majesty the Queen in Right of the Province of Ontario Defendant(Responding Party)

Kirk Baert and Celeste Poltak , for the plaintiff
John Kelly and William MacLarkey , for the defendant

HEARD: April 10, 2012

c. hORKINS J.

[ 1 ] This is a motion for certification of a proposed class action pursuant to s. 5 of the Class Proceedings Act, 1992 , S.O. 1992, c. 6 (" Class Proceedings Act ").

[ 2 ] This action arises out of the defendant’s operation, administration and management of the W. Ross MacDonald School for the visually impaired, formerly the Ontario School for the Blind (“Ross MacDonald”). The plaintiff Robert Seed attended Ross MacDonald for 11 years. He alleges that the defendant knew or ought to have known of the 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 that the defendant acted negligently and in breach of its fiduciary duties in its operation and management of Ross MacDonald.

[ 3 ] The plaintiff seeks to certify this action on behalf of the following proposed class:

(a) 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

(b) 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.

[ 4 ] The scope of the defendant’s objection to this motion is limited as explained in these reasons.

Overvew of the statement of claim

[ 5 ] 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 s. 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.

[ 6 ] Students came from 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 defendant and those operating the school for the students’ daily care and safety.

[ 7 ] 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. Students were subject to capricious, violent and humiliating punishment, a military atmosphere and unqualified staff who failed to properly supervise the students.

[ 8 ] Mr. Seed alleges that the defendant was at all material times responsible for the operation, funding and supervision of Ross MacDonald. He alleges that the defendant knew or ought to have known of the conditions at Ross MacDonald, including the pervasive use of arbitrary, violent and humiliating punishments.

[ 9 ] Further, Mr. Seed alleges that every aspect of students’ lives was dictated, controlled and provided for by the defendant. The students were children at the mercy of the adults that cared for them and were particularly vulnerable as a result of their disabilities.

[ 10 ] It is alleged that the defendant owed the students a fiduciary duty to ensure their safety and reasonable care and protect them from intentional torts that the students were subjected to while at Ross MacDonald. It is alleged that the defendant breached this fiduciary duty. As well, it is alleged that the defendant owed a general duty of care in negligence and breached its duty of care in the establishment, operation, regulation, financing, supervision and control of Ross MacDonald.

The Evidence

[ 11 ] Before reviewing the evidence, it is important to note the purpose of evidence on a certification motion. Evidence explains the background to the action. A certification motion is not the time to resolve conflicts in the evidence: see Cloud v. Canada (Attorney General) , 2004 45444 (ON CA) , [2004] O.J. No. 4924 at para. 50 (C.A.) (“ Cloud ”).

[ 12 ] A plaintiff’s evidentiary burden on a certification motion is low and the plaintiff is only required to adduce evidence to show some "basis in fact" to meet the requirements of ss. 5(1)(b) to (e) of the test for certification as a class action: see Hollick v. Toronto (City) , 2001 SCC 68 () , [2001] 3 S.C.R. 158 at paras. 16-26 (“ Hollick ”); Lambert v. Guidant Corp. , 2009 23379 (ON SC) , [2009] O.J. No. 1910 at paras. 56-74 (S.C.J.) (“ Lambert ”); Cloud at paras. 49 -52 ; Grant v. Canada (Attorney General), [2009] O.J. No. 5232 at para. 21 (S.C.J.) ; LeFrancois v. Guidant Corp ., 2009 30448 (ON SC) , [2009] O.J. No. 2481 at paras. 13-14 (S.C.J.), leave to appeal ref'd [2009] O.J. No. 4129 (Div. Ct.) ; and Ring v. Canada (Attorney General) , 2010 NLCA 20 () , [2010] N.J. No. 107 (Nfld. C.A.).

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___________________________ C. Horkins J.

Released: May 4, 2012

COURT FILE NO.: CV-11-420734
DATE: 20120504

ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN:

Robert Seed Plaintiff (Moving Party) – and – Her Majesty the Queen in Right of the Province of Ontario Defendant(Responding Party)

REASONS FOR JUDGMENT

C. Horkins J.

Released: May 4, 2012