COURT FILE AND PARTIES

COURT FILE NO.: CV-09-376927CP00
DATE: 20120724

SUPERIOR COURT OF JUSTICE – ONTARIO

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

RE: MARILYN DOLMAGE AS LITIGATION GUARDIAN OF MARIE SLARK and JIM DOLMAGE AS LITIGATION GUARDIAN OF PATRICIA SETH , Plaintiffs

AND:

HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO , Defendants

BEFORE: C. Horkins J.

COUNSEL:
Kirk Baert and Celeste Poltak , for the Plaintiffs
Robert Ratcliffe , for the Defendant

HEARD: In Writing

ENDORSEMENT

[ 1 ] The plaintiffs have served a notice of motion dated April 13, 2012 and have requested that the court fix a date for this motion to be heard. It is the defendant’s position that the issues raised in this notice of motion should be dealt with at the common issues trial.

[ 2 ] The trial is fixed to start on September 30, 2013. The parties have completed production of documents and examinations for discovery are in the process of being finished. A Trial Management Timetable has been set by Justice Archibald, team leader for the long civil list.

[ 3 ] The notice of motion seeks a determination as to whether the defendant owed a duty of care and/or a fiduciary duty to the class members. There is no common issue that asks if such duties were owed. Instead certified common issue (a) asks if the defendant breached a “duty of care they owed” to the class to “protect them from actionable physical or mental harm”. Common issue (b) asks if the defendant breached a “fiduciary duty owed” to the class to “protect them from actionable physical or mental harm”. The defendant disputes that it owed such duties to the class. If such duties were owed, then the defendant disputes the nature and extent of the duties.

[ 4 ] The class consists of a group of individuals who resided at Huronia Regional Center, a residential facility for individuals with developmental disabilities. The statement of claim alleges that the class was systemically subjected to abuse, mistreatment and poor living conditions.

[ 5 ] The plaintiffs say that their motion will rely on the following undisputed facts and no further evidence will be required:

(1) The Crown admits that it owned, operated and managed Huronia (Statement of Defence. paragraph 1);

(2) The Plaintiff Slark was admitted to Huronia when she was seven (7) years old (Statement of Defence, paragraph 43);

(3) The Plaintiff Seth was admitted to Huronia when she was six (6) years old (Statement of Defence, paragraph 53);

(4) The Crown admits that Huronia was a Schedule 1 facility, statutorily governed by the Developmental Services Act (the "DSA") (Statement of Defence, paragraph 30; Defendant's Response to Request to Admit, paragraph 17)~

(5) The Crown admits that it retained and authorized servants, agents, representatives and/or employees to operate Huronia and/or gave instructions to such servants, agents, representatives and employees as to the manner in which the facility was to function and operate (Crown's Response to Request to Admit, paragraph 18); and

(6) The Crown admits that numerous written recommendations were made directly to the Crown to identify, halt, report and eliminate abuse and to provide and appropriate level of care to the residents (Crown's Response to Request to Admit, paragraph 80).

[ 6 ] The defendant says that these admitted facts only form a small part of the evidence that is necessary for a court to determine if a duty exists or not.

[ 7 ] Since the defendant does not admit that it owed common law duties of care or a fiduciary duty to the class, common issues (a) and (b) will first require the common issues trial judge to decide whether the duties were owed and if yes the nature and extent of the duties. The plaintiffs’ motion seeks to have part of this inquiry decided now. They wish to secure a ruling from the court that a duty was owed.

[ 8 ] Given the vulnerability of the class, the existence of a duty may seem obvious as the plaintiffs argue. However, the defendant says that the existence of a duty will turn on “whether the management and operations procedures involve policy decisions, or operational matters, or some combination of the two”. This the defendant says will necessitate a consideration of evidence relating to such matters as “staffing numbers; identifying, reporting and responding to abuse; the education, rehabilitation and training of residents; the punishment restraint and medical care of residents; and the maintenance of the facility.”

[ 9 ] Further the defendant says that there is uncertainty as to whether the first part of the duty of care test (proximity and foreseeability) is met for all class members. The defendant says that this is because not all class members were made wards of the Crown under the child protection legislation and some were placed in homes off the grounds of Huronia.

[ 10 ] If the court finds that a prima facie duty of care existed, then the second part of the test will require the court to address whether there are policy reasons why such a duty should not be recognized. The defendant intends to call evidence to address this question. The plaintiffs concede that their motion cannot resolve the second part of the duty inquiry because the defendant cannot be precluded from calling evidence. The plaintiffs propose that this part of the inquiry be heard by the common issues trial judge.

[ 11 ] In order to consider whether a fiduciary duty was owed, the defendant says that the three part test established in Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24 at paras. 30-34 will require evidence. The evidence must show that the “alleged fiduciary gave an undertaking of responsibility to act in the best interests of the beneficiary”. Further the “existence and character of the undertaking is informed by the norms relating to the particular relationship”. This will require the court to consider evidence relating to the “norms”.

[ 12 ] For the reasons that follow I direct that the plaintiffs’ rule 21 motion may not proceed before trial. As the judge managing this class action, I have the discretion and power under s. 12 of the Class Proceedings Act , 1992, S.O. 1992, c. 6 to make any order that I consider appropriate respecting the conduct of this proceeding to ensure its fair and expeditious proceeding. To allow the plaintiffs’ motion to go ahead prior to the common issues trial, would not be not a fair and expeditious way of proceeding with this class action.

[ 13 ] It makes absolutely no sense to split the inquiry into whether or not the defendant owed the class a common law duty of care. Based on the plaintiffs’ proposal, I would decide if a prima facie duty of care was owed and the common issues trial judge would decide if policy reasons exist to dictate otherwise.

[ 14 ] While the plaintiffs argue that their motion can be heard simply relying on the few undisputed facts, the defendant intends to call evidence and the defendant cannot be denied this right. The evidence will cover the common law duty and the fiduciary duty questions. It is obvious that there would be an overlap between the evidence that both judges would have to consider if I allowed the plaintiffs to proceed with their motion. A single judge at the common issues trial, with the benefit of hearing all the evidence, is in the best position to decide these critical issues that go to the very heart of the action.

C. Horkins J.

Date: July 24, 2012