ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: Papassay v. The Queen, 2016 ONSC 7014
COURT FILE NO.: CV-14-0018
DATE: 2016-11-10
B E T W E E N:
Holly Papassay, Toni Grann, Robert Mitchell, Dale Gyselinck and Lorraine Evans
Mr. J. Ptak, for the Plaintiffs, responding parties
Plaintiffs
- and -
Her Majesty The Queen
Ms. L. Favreau, for the Defendant, moving party
Defendant
HEARD: October 21, 2016,
at Thunder Bay, Ontario
Madam Justice H.M. Pierce
Reasons on Motion to Compel Re-attendance at Cross-Examinations
Introduction
[1] This case involves a proposed class action which is not yet certified. The proposed plaintiffs are former wards of the provincial Crown. They claim damages against the Crown for its alleged failure to establish policies to permit Crown wards to seek compensation for harm suffered before or during the time they were in provincial care.
[2] Specifically, the plaintiffs complain that there was no policy to permit them to file applications with the Criminal Injuries Compensation Board and/or to claim damages in a civil action for harm they suffered. The plaintiffs allege, among other things, that the Crown failed to advise them of the availability of such claims and failed to collect and preserve evidence to enable the plaintiffs to advance claims for compensation.
[3] As a result of an order previously granted, certain child welfare agencies have produced the plaintiffs’ files. Thus, the proposed plaintiffs have had their status as Crown wards verified.
[4] The court previously ruled that the claim discloses a cause of action in negligence and breach of fiduciary duty. Accordingly, the criterion for certification under s. 5 (1) (a) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 is met. The remaining elements for certification in s. 5 of the Act are:
(b) whether there is an identifiable class of two or more persons;
(c) whether the claims of the class members raise common issues;
(d) whether a class proceeding would be the preferable procedure for the resolution of the common issues; and
(e) whether 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.
[5] Four of the plaintiffs filed affidavits in support of the certification motion, upon which they were cross-examined. Their affidavits describe:
(a) how they came into the care of the child welfare agencies, leading to Crown wardship;
(b) the abuse they suffered before coming into care and/or while in care of the Crown;
(c) that they did not receive reports or documents that related to the abuse they suffered when turning 18;
(d) that they are familiar with the nature of the action and understand the major steps in the litigation;
(e) their motivation to start the action;
(f) their willingness to act as representative plaintiffs and their understanding of their obligations;
(g) their commitment to actively directing the litigation; and
(h) their review of the litigation plan.
[6] In this motion, the Crown moves for orders:
requiring the plaintiffs to re-attend at the cross-examinations at their expense to answer questions refused by their counsel; and
marking the plaintiffs’ child welfare files as exhibits to their respective cross-examinations.
Should the Plaintiffs be Ordered to Re-attend at Cross-Examinations to Answer Questions Refused?
[7] In order to decide whether questions refused at cross-examination should be answered, it is necessary to first understand the context of the litigation, including the issues framed in the “Fresh as Amended” statement of claim.
[8] The prayer for relief seeks a declaration that the defendant breached its fiduciary, statutory and common law duties to the plaintiffs or was negligent by failing to consider and take reasonable steps to protect and pursue the Crown wards’ rights to recover compensation for being subjected to criminal or tortious acts.
[9] Paragraph 73 of the statement of claim describes the following alleged failures of the Crown:
During their Crown Wardship and upon their discharge, the Crown:
a) failed to advise the plaintiffs that they were entitled to seek compensation or civil damages for the criminal and tortious acts by which they were victims;
b) failed to collect and preserve evidence in respect of the criminal and tortious acts by which the plaintiffs were victims;
c) failed to provide copies of incident reports and investigations to the plaintiffs of the criminal and tortious acts by which they were victims;
d) failed to retain counsel for plaintiffs or to advise the plaintiffs to retain counsel in respect of the criminal and tortious acts by which they were victims; and
e) failed to advise the plaintiffs of their right to make applications for compensation to the Criminal Injuries Compensation Board or to seek damages by way of civil action.
[10] In addition to answering personal questions at cross-examination, the plaintiffs answered questions about whether they had read the statement of claim; their understanding of what the claim meant; the role of a representative plaintiff; their role in instructing counsel and involvement in settlement discussions; their review of the litigation plan and their understanding of the steps involved in the case.
[11] However, on the advice of counsel, they refused to answer the following questions:
whether they made claims to the Criminal Injuries Compensation Board;
their understanding of the time limits in respect to claims against the Criminal Injuries Compensation Board;
if they had inquired whether a claim to the Board was still possible;
whether any civil claim had been commenced for abuse suffered and, if so, against whom; and
the status or outcome of any civil claims.
[12] In addition, Ms. Grann was asked whether her child welfare file contains reports of abuse and Mr. Gyselinck was asked whether he had the opportunity to review his child welfare file. Before he could answer, his counsel objected. These latter refusals were not pursued in argument.
[13] Counsel for the plaintiffs takes the position that the questions were privileged or irrelevant to the issues to be determined at the certification hearing. The plaintiffs also submit that the defendant is attempting, through its questions, to examine the merits of the plaintiffs’ cases, rather than confining itself to certification issues.
[14] The questions, as framed, do not trench on solicitor-client privilege. Whether an individual has made a claim to the Criminal Injuries Compensation Board or started a civil suit is a factual matter, and does not require the deponent to discuss confidential information, instructions given to counsel or advice received. Indeed, whether a civil suit was commenced, against whom, and the result is usually a matter of public record. The objection fails on that ground.
[15] The more difficult issue is whether the questions put at cross-examination arise from the affidavits filed or are relevant at the certification motion. In Caputo v. Imperial Tobacco Ltd., 1997 12162 (ON SC), 34 O.R. (3d) 314 (1997) (Gen. Div.); 1997 12162, at para. 20, Mr. Justice Winkler held that a representative plaintiff could be examined on issues arising out of the certification motion but not with respect to the merits of the action. He noted, however, that there may be an overlap between the evidence relevant to certification and the merits of the motion, in which case, questioning is permissible.
[16] Mr. Justice Strathy (as he then was) echoed the conclusions of the Caputo court in Roveredo v. Bard Canada Inc., 2010 ONSC 5240; 100 C.P.C. (6th) 165. He agreed at para. 9 that, prior to the certification hearing, it is not always easy to separate where an examination of the “basis in fact” ends [the evidentiary burden on plaintiffs for certification] and where an impermissible inquiry into the merits of the case begins. He added that a representative plaintiff should not be subjected to burdensome production motions and extensive cross-examination for what is meant to be a procedural motion. However, he also noted that the defendant must be given a reasonable opportunity to respond to the plaintiff’s evidence. He concluded:
…the court cannot address certification in a vacuum. The apparent
commonality of the issues and preferability of the procedure may appear
obvious when looking at the pleadings or a limited record, but may become
less obvious when a full and balanced record is available.
[17] More recently, in Parker v. Pfizer Canada Inc., 2012 ONSC 1652; [2012] O.J. No. 1368, Mr. Justice Perell reviewed the scope of cross-examination on a motion or application, including on a motion for certification. At para 23, he set out principles that are applicable to the scope of cross-examination, including for certification as a class action. The principles that are relevant to this case are summarized below.
• The examining party may not ask questions on issues that go beyond the scope of the cross-examination for the application or motion.
• The questions must be relevant to: (a) the issues on the particular application or motion; (b) the matters raised in the affidavit by the deponent, even if those issues are irrelevant to the application or motion; or (c) the credibility and reliability of the deponent’s evidence.
• If a matter is raised in, or put in issue by the deponent in his or her affidavit, the opposite party is entitled to cross-examine on the matter even if it is irrelevant and immaterial to the motion before the Court.
• The proper scope of cross-examination of a deponent for an application or motion will vary depending upon the nature of the application or motion.
• The test for relevancy is whether the question has a semblance of relevancy.
[18] In this case, the defendant submits that the questions refused to be answered arise out of the affidavits filed and should therefore be answered. I do not agree with this submission. The thrust of the plaintiffs’ action is the failure of the Crown to facilitate claims for compensation for its wards either when they were in care or when they came of age. The affidavits have been carefully crafted to reflect the theory of the plaintiffs’ case. The plaintiffs depose that when they came of age, they were not given any reports or documents related to their abuse. They also state:
If I received money from the Criminal Injuries Compensation Board or through the courts when I was a child, I could have used it for therapy and to help me heal, or for educational purposes.
[19] The plaintiffs do not say that they have never attempted to pursue compensation, although that may be the case. They allege that because there was a systemic neglect of their legal rights, the harm that they suffered before becoming a Crown ward or while a Crown ward continued after their discharge from care. They submit that the focus in the common issues trial will be on whether the Crown had operational policies to satisfy the standard of care owed to its wards.
[20] Therefore, the right to cross-examine about subsequent claims for compensation does not arise from the plaintiffs’ affidavits.
[21] The defendant’s alternate argument is more persuasive: that the answers to the questions refused are relevant to the certification hearing with respect to whether there are common issues; whether a class action is the preferable procedure; and whether the plaintiffs are suitable representatives. The suitability of aggregate damages must also be determined. The plaintiffs have tendered an expert report to deal with that issue.
[22] I agree that some of the questions refused must be answered because they are relevant to these elements of certification. These are the questions relating to whether civil claims and/or claims to the Criminal Injuries Compensation Board have been made, and the outcomes.
[23] In order to certify the action, after determining that a common issue exists, the court must determine whether the common issues “can be answered on a class-wide basis.” See Omarali v. Just Energy Group Inc., 2016 ONSC No. 3997; [2016] O.J. No. 3997, para. 36. In Omarali, the court observed that:
…an issue cannot be common if its resolution is dependent upon individual findings of fact that have to be made in respect to each individual claimant.
[24] In my view, understanding whether a plaintiff has pursued compensation for abuse suffered is relevant to whether his claim is common to others in the class. If his circumstances are significantly different from other Crown wards who received no compensation, individual determinations of fact may be required. In addition, his or her suitability as a representative plaintiff may be challenged.
[25] In addition, the court must determine whether a class action is the preferable procedure for common issues raised in the claim compared to other means of redress. In doing so, the court must consider the benchmarks of access to justice, behaviour modification, and judicial economy. See: Cloud v. Canada (Attorney General), 2004 45444 (ON CA), 73 O.R. (3d) 401; [2004] O.J. No. 4924 (C.A.), para. 73.
[26] The experience of plaintiffs in attempting to obtain compensation, if any, may be relevant to the court’s consideration of whether a class action is the preferred vehicle to assess the claim. At the very least, the defendant is entitled to test it. The questions are within the knowledge of the plaintiffs. They are not onerous. No documentary production is required. By agreement of the parties, the questions may be answered in writing rather than by personal attendance.
[27] However, not all questions that have been refused are relevant to the certification motion. For example, the plaintiffs’ understanding of the time limits for making claims to the Criminal Injuries Compensation Board and if they have asked whether a claim is still possible are irrelevant considerations to whether there are common issues, what the preferable procedure is, and whether the proposed plaintiffs are representative.
[28] The questions do not deal with the central allegation in the case: that the Crown failed to generate effective policies for timely redress of its wards’ legal claims. As well, the answers to these questions may trench on solicitor-client privilege.
[29] The plaintiffs are therefore ordered to answer the following questions in writing within ten days of the release of these reasons unless counsel agree otherwise:
whether they made claims to the Criminal Injuries Compensation Board;
whether any civil claim was commenced for abuse suffered and, if so, against whom; and
the status or outcome of any civil claims.
Should the Child Welfare Files be Marked as an Exhibit to the Cross-Examination?
[30] The Crown’s request to mark the child welfare files as an exhibit to the cross-examination was made in each cross-examination and refused. Each plaintiff confirmed that he or she was aware that the files had been obtained and most of the plaintiffs confirmed that he or she had reviewed them. However, none of the deponents reference a child welfare file in their affidavits.
[31] The Crown submits that, having established a foundation for admitting the files, they are relevant to answer questions about any prior claims the plaintiffs made for compensation. It argues that production of the child welfare files is relevant to:
whether the plaintiffs made previous claims for compensation;
whether the class action is the preferable procedure for resolution of common issues;
the appropriateness of the plaintiffs to represent the class; and
whether there is some basis in fact for the proposed common issues.
[32] The Crown also contends that any arguments about the admissibility of the files or their contents should be made at the certification hearing.
[33] The plaintiffs object on these grounds:
the admission of the files would be a distraction at the certification motion;
the contents of the files are intensely personal and should not form part of the public record;
by attempting to introduce the files as an exhibit to the plaintiffs’ cross- examination, the Crown is attempting to do what it might have done when the files were first produced, to the prejudice of the plaintiffs; and
the claim to admit the files as an exhibit to the cross-examination is overbroad.
[34] In order to understand the plaintiffs’ position, it is necessary to consider what the files contain and how they came to be produced.
[35] The child welfare records comprise some 541 pages. The information contained in these files includes physical descriptions, childhood health and educational records, childhood behaviour, personal relationships, psychological reports and personal correspondence.
[36] These files were delivered by the plaintiffs’ respective child welfare agencies in response to the court’s order. They were produced to counsel for the Crown in March of 2016. The Crown elected not include the files in its responding certification record. All of the plaintiffs, except Ms. Papassay, are confirmed as Crown wards during the relevant period. Thus, they are within the class proposed. The defendant is not left to deal with “bald assertions” of that fact, as was the case in Dine v. Biomet, 2015 ONSC 1911, para 33.
[37] In Dine, Mr. Justice Belobaba considered the problem of production of medical files sought before certification in a class action. In doing so, he sought to formulate a clear rule in Ontario to obviate the need for motions like these. While the case before me does not involve medical files, the reasoning is persuasive and analogous to the case at bar. I will therefore consider it at some length.
[38] Mr. Dine provided some medical records documenting his status as a prospective plaintiff who received a hip implant using the defendant’s device, alleged to be defective. The defendant sought further extensive medical disclosure before the certification motion. This included all of the plaintiff’s medical records related to the condition of the plaintiff’s hips; his three hip surgeries, operative and post-operative notes, laboratory reports, and any medical notes involving pain, lack of mobility, or other injuries attributable to the implants.
[39] Justice Belobaba determined that the demand for additional medical records was overbroad and not relevant to the issues at certification. He also held that the demand was “impermissibly directed towards the merits” of the plaintiff’s individual claim. Instead, he ordered the plaintiff to produce some limited medical information confirming that the impugned device was implanted in the plaintiff, in order to satisfy the issues identified in s. 5 (1) (e) of the Act.
[40] At para. 10 of Dine, the court observed that in Ontario, the rule is that production of records before certification will only be ordered if the defendant can show that the document is relevant to the issues on certification. Justice Belobaba stated that the necessity to show relevance “reinforces two essential themes in class action legislation and case law.”
[11] First, that the certification motion is a procedural motion that has nothing to do with the merits of the proceeding. There is little room for individualized evidence, which in excess may result in unnecessary confusion and misdirection. This point has been noted repeatedly in the context of medical records by courts from Newfoundland to British Columbia:
The medical records of the plaintiffs are clearly relevant to the merits of their individual claims but, as noted above, the certification stage is not meant to determine the merits of the action. Indeed the Court must be vigilant to ensure that the certification application does not become mired down in the merits of an individual claim.
[T]he introduction of individual medical records at this stage would be more likely to improperly confuse the issues on the certification action with a premature consideration of the merits of an individual claim.
[12] Secondly, that the class action is designed to proceed in stages – certification; the common issues trial; the individual assessments – and the nature and focus of permitted discovery at each stage should vary accordingly. If, as a general rule, discovery before the common issues trial is limited to the common issues, and discovery of individual class members is only allowed once the common issues are resolved, then it must follow that “pre-discovery discovery” before certification must be limited to the issues on certification. Otherwise, the intended legislative design is turned on its head.
[13] The judicial discretion to control the discovery process is particularly important in a class proceeding “where the size of unrestricted discovery and production may have the effect of extending the action for years and increasing the costs astronomically. If the class action is to remain viable as a vehicle for improved access to justice, it cannot be front end-loaded at the certification stage with evidence that is unnecessary and irrelevant. [Citations omitted].
[41] In my view, the child welfare files should not be marked as exhibits to the cross-examinations. Much of the material contained in the files is highly personal but bears no relevance to the remaining issues to be determined at the certification issue as described in s. 5 (1) (b) – (e) of the Act. Including these materials in the public record may well embarrass the plaintiffs, encumber the record with irrelevancies, extend the time required for the certification motion (with a resultant increase in the costs), and distract the court from a focused analysis of the issues to be decided at certification.
[42] The defendant submits that it is relevant for purposes of certification to know whether the plaintiffs made claims for compensation and the result, in order to assess the appropriateness of the proposed plaintiffs to represent the class. These questions have been ordered to be answered. It is not also necessary to produce the child welfare file in order to obtain that information. There is no evidence, in any event, that the files contain that information. The request for them is tantamount to a fishing trip by the defendant.
[43] In addition, I am satisfied that marking the files as an exhibit to the plaintiffs’ cross-examination will prejudice the plaintiffs. The defendant has had possession of the files for many months but decided not to put them into its certification record. Had the Crown included the files in its responding certification record, the plaintiffs could have moved to strike them or to address the issue in reply evidence. The plaintiffs have already filed their reply evidence and are therefore precluded from filing further reply to what is in effect a new issue: the contents of the file.
[44] Nor am I persuaded that inclusion of the child welfare files as an exhibit to the cross-examinations will assist the court in determining whether the class action is the preferable procedure for resolution of common issues. It is difficult to imagine how a file prepared and maintained for a completely different purpose during childhood would bear on that issue. As well, it is open to the defendant to file its own information about the availability of claims to the Criminal Injuries Compensation Board or other means of redress, if so advised.
[45] The defendants submit that evidence from the child welfare files is relevant to a determination of whether there is some basis in fact for the proposed common issues, particularly in relation to the plaintiffs’ claim that the Crown had a duty to preserve evidence and failed to do so.
[46] In my view, production of the file anticipates an issues trial and is an overbroad request pending the certification hearing. The preliminary evidence is that the plaintiffs are Crown wards who were abused either before coming into care, or during care, or both. Details of the abuse suffered by each plaintiff are set out in his or her affidavits.
[47] None of the plaintiffs deposed that records were not preserved. Instead, all plaintiffs deposed that they were not given reports or documents relating to their abuse when they became 18. Three of the plaintiffs also deposed that they were never advised they could advance a claim in court or at the Criminal Injuries Compensation Board. All of the plaintiffs deposed that they were not aware of other Crown wards who were advised of their entitlement to make such claims.
[48] Should the action be certified, the merits of each claim will be dealt with in accordance with the structure of the Act.
[49] Accordingly, the defendant’s motion to mark the plaintiffs’ child welfare files as exhibits to their cross-examinations is dismissed.
Costs
[50] If the parties cannot agree on costs, either may make application to the trial coordinator within thirty days of the release of these reasons for an appointment to argue costs. Briefs on the costs hearing are not to exceed 5 pages. Counsel are granted leave to appear by teleconference at the costs hearing, if so advised.
_______“original signed by”
The Hon. Madam Justice H.M. Pierce
Released: November 10, 2016
COURT FILE NO.: CV-14-0018
DATE: 2016-11-10
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Holly Papassay, Toni Grann, Robert Mitchell, Dale Gyselinck and Lorraine Evans
Plaintiffs
- and –
Her Majesty The Queen
Defendant
REASONS FOR MOTION
Pierce J.
Released: November 10, 2016
/cnm