Slark v. Ontario, 2017 ONSC 4356
CITATION: Slark v. Ontario, 2017 ONSC 4356
COURT FILE NO.: CV-09-376927CP
COURT FILE NO.: CV-10-411191CP
COURT FILE NO.: CV-10-417343CP
DATE: 20170810
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
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 ONTARIO
Defendant
Jody Brown for the Plaintiffs
Jasminka Kalajdzic for the subclass in action CV-09-376927CP
Sonal Gandhi and Lisa Brost for the Defendant
AND BETWEEN:
DAVID McKILLOP BY HIS LITIGATION GUARDIAN CHRISTINE VICTORIA GRACE CLARKE
Plaintiff
– and –
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO
Defendant
AND BETWEEN:
MICHAEL SHARRON AS LITIGATION GUARDIAN OF MARY ELLEN FOX
Plaintiff
– and –
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO
Defendant
Proceeding under the Class Proceedings Act, 1992
HEARD: June 5, 2017 and in writing
PERELL, J.
REASONS FOR DECISION - Addendum
[1] This is an addendum to my reasons for decision reported as Slark v. Ontario, 2017 ONSC 4178. The purpose of those reasons was to determine how to allocate $7.45 million in Strategic Program Investment funds from three class action settlements.
[2] In my Reasons for Decision, I approved approximately $6.05 million in distributions to a group of projects. These projects were supported by the Representative Plaintiffs. I did not, however, approve $1,423,010 in allocations to another group of projects that also had the support of the Representative Plaintiffs; rather, I allocated $1,423,010 between: (1) People First of Ontario; and, (2) a project proposal from the University of Toronto and McMaster University. This proposal involved the universities and CAMH, Bethesda Services, and Surrey Place Centre (the “CAMH proposal”).
[3] Unfortunately, in paragraph 45 of those Reasons for Decision, I conflated the CAMH proposal, which had requested $934,696.13, with another project from McMaster University that the Representative Plaintiffs had approved for a distribution of $161,723. The McMaster University project is fully funded, but the CAMH proposal was not approved by Class Counsel and the Representative Plaintiffs and indeed they vigorously oppose it being funded.
[4] The CAMH project is, however, supported by the Crown, and in my Reasons for Decision, I directed that it should receive $772,973.13. This allocation was based on my mistaken understanding that the Representative Plaintiffs had already advocated that the CAMH proposal receive $161,723. As already noted, the reality is that the Representative Plaintiffs and Class Counsel vigorously oppose the CAMH project receiving any funding.
[5] After my misunderstanding was pointed out to me, I allowed the parties an opportunity to provide written submissions as to whether I should change the allocations that I had made.
[6] The Representative Plaintiffs oppose the funding of the CAMH proposal for four reasons: (1) Surrey Place Centre, one of the participating organizations, has a similar operational history to the institutions that were the subject of the three class actions and granting funding to them is contrary to the behaviour modification purposes of a cy-près distribution; (2) the allocation to the CAMH proposal is disproportionate to the other allocations; (3) upon analysis, the CAMH proposal will not provide benefits to Class Members in accordance with the aspirations of the settlement agreements; and; (4) the organizations behind the CAMH Proposal are large well-funded organizations and in some instances are already directly funded by the Crown and the settlement funds should not be used to augment already established government programs already in receipt of funding.
[7] Without commenting on reasons (1), (2), and (4), I am satisfied that reason (3) is a reason to not approve any allocation to the CAMH proposal. Schedule D of the settlement agreements states that the goal of the cy près projects is “to enhance the ability of individuals with a developmental disability to guide and influence decisions affecting them from a system and personal point of view”, and upon analysis, the CAMH proposal does not go far enough in satisfying this aspiration of the settlement agreements.
[8] I, therefore, rescind the allocation of $772,973.13 to the CAMH proposal, and correspondingly I increase the allocation to People First of Ontario.
[9] The order in this matter, which has not yet been taken out, should be prepared accordingly.
Perell, J.
Released: August 10, 2017
CITATION: Slark v. Ontario, 2017 ONSC 4356
COURT FILE NO.: CV-09-376927CP
COURT FILE NO.: CV-10-411191CP
COURT FILE NO.: CV-10-417343CP
DATE: 20170810
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
MARILYN DOLMAGE AS LITIGATION GUARDIAN OF MARIE SLARK and JIM DOLMAGE AS LITIGATION GUARDIAN OF PATRICIA SETHE
Plaintiffs
– and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Defendant
AND BETWEEN:
DAVID McKILLOP BY HIS LITIGATION GUARDIAN CHRISTINE VICTORIA GRACE CLARKE
Plaintiff
– and –
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO
Defendant
AND BETWEEN:
MICHAEL SHARRON AS LITIGATION GUARDIAN OF MARY ELLEN FOX
Plaintiff
– and –
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO
Defendant
REASONS FOR DECISION - Addendum
PERELL J.
Released: August 10, 2017