COURT FILE NO.: CV-17-578-00
DATE: 2018-09-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KIRK KEEPING
J. Ptak and G. Myers, for the Plaintiff
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO
C. Vernon, for the Defendant Crown
S. Jillinek and L. Merritt, for the Ontario Trial Lawyers Association
M. Shanouda and K. Joffe, for the Proposed Intervener Arch Disability Law Centre
Defendant
HEARD: September 14, 2018,
at Thunder Bay, Ontario
Mr. Justice W.D. Newton
Decision On Motion
[1] ARCH Disability Law Centre (“ARCH”) and the Ontario Trial Lawyers Association (“OTLA”) seek leave to intervene in this certification motion scheduled before me on December 11 and 12, 2018. Counsel for the plaintiff opposes intervention.
[2] The plaintiff brings this class proceeding on behalf of former residents of Ontario training schools. The statement of claim alleges that the training schools functioned as juvenile detention facilities from 1931 to 1984 and that young persons attending these facilities suffered from physical, psychological, and sexual abuse arising from the negligence of and breach of fiduciary duty by the Crown.
[3] ARCH is a specialty legal clinic “dedicated to defending and advancing the equality rights, entitlements, fundamental freedoms and inclusions of persons with disabilities in Ontario.” ARCH submits that it has legal representation to persons with disabilities in other class action settlements and has provided assistance to class counsel to ensure that the class action proceedings are as accessible as possible for persons with disabilities. As such, ARCH submits that it has insight into access to justice concerns and barriers experienced by class members with disabilities.
[4] OTLA is an organization of over 1000 Ontario lawyers who represent plaintiffs in tort and insurance claims. As an organization, OTLA submits that it can provide expertise to the court on whether this class proceeding would be fair, efficient, and manageable. It argues that OTLA can speak for former training school attendees who are unable or unwilling to come forward at this time and speak to what OTLA describes as the “conflict” between the Limitations Act, 2002, S.O. 2002, c. 24, sched. B and the effect of certification on potential class members. Simply stated, OTLA argues that certification will preclude the claims of those potential claimants who are not yet ready to come forward with their claims. OTLA also argues that because of its members’ experience in litigating personal claims on behalf of plaintiffs in prior physical and sexual assault cases, including claims made by former training school residents, it can make helpful submissions about whether a class proceeding or individual actions would be most advantageous for claimants. OTLA points to what it describes as insufficient participation of potential class members and insufficient compensation in other similar certified proceedings such as Welsh v. Ontario, 2018 ONSC 3217.
[5] Counsel for the proposed class argues, first of all, that neither proposed intervener satisfies the test for intervention and, in any event, that neither organization will offer any assistance to the court beyond what the plaintiff, the defendant, and past jurisprudence will bring to the certification hearing.
[6] Ontario, although represented by counsel on this motion, elected not to make any additional submissions.
[7] I agree with counsel for the proposed class. Although it is possible that some of the potential claimants suffer from a disability, particularly a psychological or psychiatric disability if they suffered abuse, there is nothing to suggest that ARCH can provide assistance at the certification stage. It may well be that ARCH will be able to provide helpful assistance to class counsel in ensuring that the interests of persons with disabilities are addressed at various stages of the proceeding if certified.
[8] OTLA’s submission that potential claimants who are not prepared to come forward at this time will be permanently precluded from seeking redress because they did not opt out must be looked at practically. The last young person attended training school in 1984. Potential claimants would therefore range in age from approximately 100 years old to, at the youngest, approximately 50 years old. Claimants have had at least 34 years to come forward. Indeed, as OTLA notes, some have already brought individual actions. If certified, I am satisfied that notice can be crafted to ensure that potential claimants are notified of the class proceeding and given adequate time to come forward and make an informed decision about whether they wish to continue with or opt out of the class proceeding.
[9] OTLA’s other submission that there is insufficient participation and compensation in a class proceeding as opposed to an individual action can also be addressed by crafting an appropriate notice if this action is certified. The notice will clearly set out that the claimant has the option to opt out and that, by opting out, claimants may be entitled to greater compensation than in the class proceeding. The notice would, of course, urge claimants to seek legal advice before deciding whether to remain in or opt out of the class. Organizations, such as OTLA or The Advocates’ Society, could play an important role in advising class members of their legal options by creating pro bono teams in each judicial region to advise class members of their rights should this action be certified.
[10] Given these conclusions, it is unnecessary for me to consider the technical issue of whether the proposed interveners meet the test for intervention. The application for intervention is dismissed.
[11] If any party seeks costs, then costs submissions shall be delivered within 30 days. Thereafter, any party may respond within 20 days. Submissions are limited to three pages plus costs outline plus authorities.
“Original signed by”
The Hon. Mr. Justice W.D. Newton
Released: September 24, 2018
COURT FILE NO.: CV-17-578-00
DATE: 2018-09-24
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
KIRK KEEPING
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO
Defendant
DECISION ON MOTION
Newton J.
Released: September 24, 2018
/lvp