COURT FILE NO.: CV-17-578-00CP DATE: 2019-04-01

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 A. Leamen and J. Tallman, for the Defendant Defendant

HEARD: March 21, 2019, at Thunder Bay, Ontario Mr. Justice W.D. Newton

Decision On Motion

Overview

[1] Class counsel moves for an order approving the form and content of the notice of certification and an order approving the litigation timetable. Ontario consents to both orders.

[2] I approve the litigation timetable.

[3] The form and content of the notice of certification requires some review.

Background

[4] This is a class proceeding brought on behalf of former residents of Ontario Training Schools. The representative plaintiff alleges that the Crown was negligent and in breach of its fiduciary duty, which resulted in physical and sexual abuse to class members.

[5] Prior to certification, the Ontario Trial Lawyers Association (‘OTLA”) and ARCH Disability Law Centre (“ARCH”) sought leave to intervene on the certification motion. OTLA is a nonprofit corporation whose membership consists of over 1,000 lawyers practicing personal injury litigation on behalf of plaintiffs throughout Ontario. 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.”

[6] For reasons given September 24, 2018, in 2018 ONSC 5621, I denied OTLA and ARCH’s requests for intervention, and with respect to one of OTLA’s concerns, I noted, at par. 9:

[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.

[7] On November 30, 2018, the motion for certification proceeded on consent. In my endorsement, I stated:

With respect to the notification of certification, and in particular to advice re: independent legal advice re: opt out, it is my expectation that counsel will consult with the organizations that sought to intervene, namely ARCH and OTLA and perhaps others such as TAS (The Advocates Society), to develop a plan for interested parties to obtain legal advice about their rights and whether a class proceeding or a personal action is in their individual best interests.

The Proposed Motion

[8] In support of this motion, class counsel submitted an affidavit from an articling student who deposed that she conducted research into organizations to identify “one that might be capable of and willing to provide legal advice to putative class members about their opt out rights and whether a class proceeding is in their best interest.” She identified six organizations: Pro Bono Ontario (“PBO”), the Law Society Referral Service, The Advocates’ Society, the Ontario Legal Information Centre, Steps to Justice, and National Directory of Professionals Assisting Self-represented Litigants. Class counsel also submitted an affidavit from Matt Cohen, director of litigation projects for PBO. Mr. Cohen described the Free Legal Advice Hotline that PBO operates. He deposed that PBO has approximately 350 hotline volunteers with civil litigation experience and that the hotline accepts calls Monday to Friday from 9:30 A.M. to 11:30 A.M. and from 1 P.M. to 3:30 P.M. Mr. Cohen deposed that PBO “is prepared to make best efforts to arrange free legal advice to class members who call the hotline seeking to understand their legal options during the opt out period.”

[9] Class counsel provided the draft notice order to both ARCH and OTLA. Both organizations responded with concerns and suggestions, some of which class counsel accepted or acted on. Class counsel expanded the distribution of the notice to a number of other organizations as proposed by OTLA.

[10] OTLA raised other concerns. OTLA submitted that there should be no or a longer opt out deadline rather than the proposed 240 days. The last young person to attend a training school in Ontario did so in 1984. Therefore, claimants have had at least 34 years to bring forward claims. I understand OTLA’s position that an opt out provision runs contrary to the treatment of claims for sexual assaults under the Limitations Act, 2002, S.O. 2002, C. 24, Sched. B. Nevertheless, I agree with class counsel and counsel for Ontario that the proposed opt out plan serves the public interest.

[11] The other issue raised by OTLA relates to the independent legal advice. OTLA suggests that its membership are suited to give independent legal advice and that the notice should include contact information for OTLA. OTLA also seeks to include additional information in the notice stressing that an individual action may be more advantageous to some claimants than the class proceeding.

[12] During argument, class counsel advised that OTLA was not considered as an organization that could provide independent legal advice because of the perception that its members might provide “one-sided” advice potentially skewed to individual actions rather than class proceedings. This, of course, is the same argument, although in reverse, raised by OTLA with respect to class counsel advising claimants about opting out.

[13] During argument, I questioned whether the PBO lawyers had the necessary qualifications to provide advice to claimants considering whether to remain in or opt out of the class action. There was discussion of potential “fact sheets” and training for such lawyers. It would be helpful if the proposed fact sheets and/or training materials were available for my review. Class counsel indicated that they could provide me with this material.

[14] The order is approved subject to the following:

Schedule B – Publication list

[15] Although the representative plaintiff resides in Thunder Bay, and although this action was commenced in Thunder Bay, the Thunder Bay newspaper, the Chronicle Journal, was not listed as a newspaper wherein the notice would be published. This newspaper is to be added to the publication list.

Independent Legal Advice

[16] Class counsel is to prepare proposed training documents for PBO volunteer lawyers. This may include “fact sheets” and any other training devices or proposals that counsel deem appropriate. Since, as counsel urge this advice is to be “perfectly balanced,” I expect the “fact sheets” to provide concise summaries of the advantages and disadvantages of class proceedings and individual actions. Class counsel is to consult with OTLA in the development of these “fact sheets” and training materials. Once completed, this material is to be submitted to me so that I can review it before providing final approval of the order.

The Hon. Mr. Justice W.D. Newton

Released: April 1, 2019