Court File and Parties
COURT FILE NO.: CV-16-00543895-00CP DATE: 2018/12/17 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
J.K. Plaintiff – and – HER MAJESTY THE QUEEN IN RIGHT OF THE PROVINCE OF ONTARIO Defendant
Counsel: James Sayce and Janeta Zurakowski for the Plaintiff Christopher A. Wayland and Jonathan Sydor for the Defendant
Proceeding under the Class Proceedings Act, 1992
HEARD: December 17, 2018
PERELL, J.
Reasons for Decision
[1] In a separate motion, that I granted, J.K, moves for an order substituting C.S. as plaintiff, and amending the Statement of Claim in this action originally brought by J.K. against Her Majesty the Queen in right of the Province of Ontario (“Ontario”).
[2] Pursuant to the Class Proceedings Act, 1992, C.S. moved for an order certifying this action as a class proceeding. The motion is unopposed by Ontario.
[3] More precisely, C.S. seeks the following order: [Appendices and schedules not reproduced]:
THIS COURT ORDERS that this action be and hereby is certified as a class proceeding pursuant to the Class Proceedings Act, 1992, S.O. 1992, c.6;
THIS COURT ORDERS AND DECLARES that the Class is defined as:
[…] all persons who, while under the age of 18, were, between April 1, 2004 and December 17, 2018, placed in Youth Segregation at Youth Justice Facilities that were directly operated only by the Ministry of Children and Youth Services, which are listed at Appendix “A” hereto (the “Youth Justice Facilities”).
“Youth Segregation” means the segregation at a Youth Justice Facility of a person under the age of 18 alone in a designated room or area for more than 6 consecutive hours without any meaningful human contact.
“Youth Segregation” does not include:
(a) segregation by reason of a lock-down at a Youth Justice Facility; and (b) the routine locking of youth in their rooms overnight at Youth Justice Facilities, as authorized by statute.
THIS COURT ORDERS AND DECLARES that the common issues be and are hereby certified as:
(a) Did the defendant owe class members a duty of care to not, under any circumstances, place them in Youth Segregation at Youth Justice Facilities during the class period? If yes, did the defendant breach this duty of care by permitting the use of Youth Segregation at Youth Justice Facilities during the class period?
(b) If the answer to common issue (a) is no, were there systemic uses of Youth Segregation at Youth Justice Facilities during the class period that fell below the standard of care and, if so, what were they?
(c) If the answer to common issue (b) is yes, did the defendant breach a duty of care to class members by permitting and/or failing to take reasonable steps to prevent those uses?
(d) Did the defendant owe class members a fiduciary duty to not, under any circumstances, place them in youth Segregation at Youth Justice Facilities during the class period? If yes, did the defendant breach this duty by permitting the use of Youth Segregation at Youth justice Facilities during the class period?
(e) If the answer to common issue (d) is no, were there systemic uses of Youth Segregation at Youth Justice Facilities during the class period that fell below the standard of care and, if so, what were they?
(f) If the answer to common issue (e) is yes, did the defendant breach a fiduciary duty to class members by permitting and/or failing to take reasonable steps to prevent those uses?
(g) Did placement of class members in Youth Segregation at Youth Justice Facilities during the class period amount in all instances to a deprivation of class members’ liberty and/or security of the person under s. 7 of the Charter?
(h) If the answer to common issue (g) is no, were there systemic uses of Youth Segregation at Youth Justice Facilities during the class period that amounted to deprivations of class members’ liberty and/or security of the person under s. 7 of the Charter and, if so, what were those systemic uses?
(i) If the answers to common issues (g) or (h) are yes, did any of those uses fail to accord with the principles of fundamental justice and, if so, what were those uses?
(j) Did placement of class members in youth Segregation at Youth Justice Facilities during the class period amount in all instances to a breach of the class members’ s. 9 Charter rights?
(k) If the answer to common issue (j) is no, were there systemic uses of Youth Segregation at Youth Justice Facilities during the class period that violated s. 9 of the Charter rights and if so, what were those uses?
(l) Did placement of class members in Youth Segregation at Youth Justice Facilities during the class period amount in all instances to a breach of the class members’ s. 12 Charter rights?
(m) If the answer to common issue (l) is no, were there systemic uses of Youth Segregation at Youth Justice Facilities during the class period that violated s. 12 of the Charter and, if so, what were those uses?
(n) If the answer to any of common issues (i), (j), (k), (l) or (m) are yes, are the defendant’s actions saved by s. 1 of the Charter?
(o) Is the defendant immune from liability in respect of any of the foregoing common issues?
(p) Are any of the foregoing common issues non-justiciable?
(q) If the answer to any of common issues (i), (j), (k), (l), or (m) is yes and the answer to common issues (n) is no, are damages available to class members under s. 24(l) of the Charter?
(r) If the answer to any of common issues (a), (b), (c), (d), or (q) is “yes”, can the Court make an aggregate assessment of the damages suffered by all class members as part of the common issues trial?
(s) If the answer to any of common issues (a), (b), (c) or (d), or (q) is “yes”, was the defendant guilty of conduct that justifies an award of punitive damages?
(t) If the answer to common issue(s) is “yes”, what amount of punitive damages ought to be awarded?
THIS COURT ORDERS AND DECLARES that C.S. is hereby appointed as the representative plaintiff for the class members.
THIS COURT ORDERS AND DECLARES that Koskie Minsky LLP and Strosberg Sasso Sutts LLP be and are hereby appointed as class counsel (“Class Counsel”).
THIS COURT ORDERS that Crawford Class Action Services (the “Administrator”) be and is hereby appointed as the Administrator.
THIS COURT ORDERS that class members shall be notified that this proceeding has been certified as a class proceeding as follows:
(a) by the Administrator placing, within thirty (30) days of the date of this Order, the Publication Notice found in Schedule “A" in the newspapers set out in Schedule “B" attached hereto, or a French language version which is to be agreed upon by the parties, in ¼ of a page size in the weekend edition of each paper, if possible;
(b) by the Administrator distributing the Publication Notice to all Ontario offices of the Elizabeth Fry Society and the John Howard Society;
(c) by the defendants posting the Publication Notice in a conspicuous place within each currently operational facility listed in paragraph 2, in common areas, making it possible for class members to see it;
(d) by posting the Publication Notice and Long Form Notice set out in Schedule “C”, and the French language translations of these documents which are to be agreed upon by the parties, on Class Counsel’s and the Administrator’s website;
(e) by the Administrator delivering the Publication Notice and Long Form Notice to the Public Guardian and Trustee;
(f) by the Administrator forwarding the Publication Notice and Long Form Notice to any Class Member who requests it;
(g) by the Administrator establishing a toll-free support line within Ontario to provide assistance to class members, family, guardians or agency staff, or other persons who make inquiries on their own behalf or on behalf of class members;
THIS COURT ORDERS that the expense of the notice in paragraph 7 and the Administrator’s responsibilities herein shall be borne equally by the plaintiff and the defendant, subject to review and readjustment by agreement or order at the termination of this proceeding.
THIS COURT ORDERS that a class member may opt out of the class proceeding by delivering a signed opt-out coupon, a copy of which is attached as Schedule “D” or some other legible request to opt out, by 90 days after notice published (the “Opt-Out Deadline”), sent to the Administrator, at the following address:
CRAWFORD & COMPANY 3-505, 133 Weber St. North Waterloo, Ontario N2J 3G9 Attention: Youth Segregation Class Action
THIS COURT ORDERS that no Class Member may opt out of the class proceeding after the Opt-Out Deadline, except with leave of the Court.
THIS COURT ORDERS that if a Class member has delivered an opt-out coupon to the Administrator, he or she may withdraw his or her opt-out before the Opt-Out Deadline by advising the Administrator, in writing, that he or she wishes to withdraw the opt-out.
THIS COURT ORDERS that the Administrator shall serve on the parties and file with the Court, within sixty (60) days of the expiry of the Opt-Out Deadline, an affidavit listing all persons who have opted out of the class proceeding, if any.
THIS COURT ORDERS that no other proceeding may be commenced in Ontario in respect of the subject matter of this action without leave of this court.
THIS COURT ORDERS that each party shall bear its own costs of the within motion for certification of this proceeding.
Appendix “A” Bluewater Youth Centre Brookside Youth Centre Cecil Facer Youth Centre Donald Doucet Youth Centre Invictus Youth Centre Justice Ronald Lester Youth Centre Roy McMurtry Youth Centre Sprucedale Youth Centre Toronto Youth Assessment Centre
[4] The action arises out of alleged negligence, breaches of fiduciary duty, and breaches of sections 7, 9, and 12 of the Canadian Charter of Rights and Freedoms by Ontario. The Defendant's alleged wrongdoing stems from the use of segregation in its youth justice facilities that it operates and manages pursuant to the Youth Criminal Justice Act and the Child and Family Services Act.
[5] The Amended Fresh as Amended Statement of Claim alleges that: (a) Ontario operated the Youth Justice Facilities and was responsible for their funding and supervision; (b) Ontario subjected persons under the age of 18 to youth segregation; (c) Ontario mistreated class members; (d) Ontario knowingly and unlawfully breached the Child and Family Services Act; (e) Ontario was negligent and this negligence caused damages to Class Members; (f) Ontario breached its fiduciary duty and caused damages to Class Members; (g) Ontario breached sections 7, 9, and 12 of the Charter; (h) Ontario's breaches are not saved by section 1 of the Charter; (i) Ontario's Charter breaches warrant damages payable to the Class under section 24 of the Charter; (j) Ontario is vicariously liable for its employees, representatives, and agents; and (k) Ontario's conduct was high-handed and should result in an award of punitive/aggravated damages; and damages may be calculated in the aggregate.
[6] Pursuant to s. 5(1) of the Class Proceedings Act, 1992, the court shall certify a proceeding as a class proceeding if: (1) the pleadings disclose a cause of action; (2) there is an identifiable class; (3) the claims or defences of the class members raise common issues of fact or law; (4) a class proceeding would be the preferable procedure; and (5) there is a representative plaintiff or defendant who would adequately represent the interests of the class without conflict of interest and there is a workable litigation plan.
[7] I am satisfied that all the criteria for certification are satisfied in the immediate case.
[8] The certification motion is granted. There shall be no order as to costs.
Perell, J. Released: December 17, 2018