COURT FILE NO.: 08-CV-347100CP

DATE: 20220922

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

LISA CAVANAUGH, ANDREW HALE-BYRNE, RICHARD VAN DUSEN, MARGARET GRANGER and TIM BLACKLOCK

Plaintiffs

• and –

GRENVILLE CHRISTIAN COLLEGE, THE INCORPORATED SYNOD OF THE DIOCESE OF ONTARIO, CHARLES FARNSWORTH, BETTY FARNSWORTH, J. ALASTAIR HAIG and MARY HAIG

Defendants

Proceeding under the Class Proceedings Act, 1992

Michael Peerless, Loretta Merritt, Sabrina Lombardi, and Christopher Haber for the Plaintiffs

David Boghosian for the Defendants

HEARD: August 25, 2022

PERELL, J.

REASONS FOR DECISION

A. Overture: The Elephant in the Courtroom.. 2

B. Facts. 3

C. Relevant Provisions of the Class Proceedings Act, 1992. 9

D. Analysis and Discussion. 9

E. Schedule “A” – Individual Issues Litigation Plan. 12

F. Conclusion. 14

Schedule “B” – Excerpts from the Class Proceedings Act, 1992. 15

“All for one and one for all, united we stand, divided we fall.” [Alexandre Dumas, The Three Musketeers]

A. Overture: The Elephant in the Courtroom

[1] This is a class action pursuant to the Class Proceedings Act, 1992.[^1] The action has reached the individual issues stage. The individual issues stage occurs after the collective part of the class proceeding (“all for one and one for all”) ends. At the individual issues stage, the court determines how much compensation each Class Member should recover for his or her idiosyncratic injuries. Typically, at the individual issues stage, the collective stage of the class action ends, and the Class Members are divided to determine their individual claims.

[2] The Class Proceedings Act, 1992 has detailed provisions for the individual issues stage of the class action. In the immediate case, there is, however, an elephant in the courtroom. The idiom “elephant in the room”, means a big problem that is being ignored. The big problem in the immediate case is that the Defendants are judgment proof and the Defendants’ insurance coverage is erratic for the twenty-five years of institutional child abuse, which abuse was the subject of the class action.

[3] Insurance coverage is temporally allocated. Temporally speaking, if damage is suffered (the injury-in-fact trigger theory), further deterioration after that point does not trigger any policies in place after that point, because the damage is already complete.[^2] In the immediate case, the resultant allocation of insurance coverage is spotty and makes insurance coverage unavailable for some Class Member’s claims.

[4] The big problem about the non-availability of insurance for portions of the whole class period is compounded by the circumstance that the number of Class Members who may wish to advance individual claims is uncertain.

[5] The biggest problem about the non-availability of insurance for the whole class period means that the insurance funds, which are more than adequate, cannot be fairly distributed amongst the Class Members (“united we stand, divided we fall”).

[6] When a class action settles, this type of big problem can be solved by the settlement agreement. When a class action settles, the court supervises the parties’ solutions for big problems by its authority under the Class Proceedings Act, 1992 to approve settlements and distribution plans that are in the best interests of the class as a collective.[^3]

[7] The dramatic challenge in the immediate case is whether the court with – or without - the assistance of the parties can use its authority to direct the procedure for the individual issues stage to solve a big distribution and fairness problem. What follows is Act I in the drama of settling the terms of the individual issues stage in the circumstances of the immediate case.

[8] For the reasons that follow, I conditionally approve an Individual Issues Litigation Plan. The conditionally approved plan is set out in Schedule “A” to these Reasons for Decision. The conditions are: (1) final approval of the Individual Issues Litigation Plan is conditional upon the parties’ submissions for revisions to the plan within 120 days of the release of these Reasons for Decision; and (2) the court approving a Diversion and Claims Program Plan to be submitted by Class Counsel within 120 days of the release of these Reasons for Decision. The Distribution Plan will be approved after the completion of the Individual Issues Litigation Plan and the Diversion and Claims Program Plan.

B. Facts

[9] In 2008, pursuant to the Class Proceedings Act, 1992, Lisa Cavanaugh, Andrew Hale-Byrne, Richard Van Dusen, Margaret Granger, and Tim Blacklock commenced a class action against the Incorporated Synod of the Diocese of Ontario, Grenville Christian College, Charles Farnsworth, Betty Farnsworth, J. Alastair Haig, and Mary Haig. The action as against the Incorporated Synod of the Diocese of Ontario was dismissed.[^4] The action as against Betty Farnsworth and Mary Haig was discontinued.[^5] The Divisional Court certified the action against the remaining defendants.[^6]

[10] It is an institutional abuse class action about child abuse that occurred at the now defunct Grenville Christian College, which was located in Brockville, Ontario. The abuse occurred for twenty-five years from September 1973 to July 1997.

[11] After a five-week trial, Justice Leiper found the Defendants liable on a class-wide basis.[^7] She held that the Defendants had breached their duty of care and their fiduciary duties to the class and that the conduct of the defendants merited an award of punitive damages. The trial judgment was affirmed by the Ontario Court of Appeal.[^8]

[12] The trial judgment, however, was not dispositive. The trial judgment provided no aggregate award, and the individual issues of the students of Grenville Christian College remained to be determined. What remains to be determined pursuant to s. 25 of the Class Proceedings Act, 1992, which authorizes the court to establish the procedure for the individual issues stage, are: (a) the individual claims; (b) the class’s claim for punitive damages to be shared individually; and (c) the matter of pre-judgment interest.

[13] Justice Leiper determined that there were potentially 1,360 claimants for individual issues assessments. Approximately 330 Class Members have approached Class Counsel indicating an interest in pursuing an individual claim. Class Counsel predicts a take-up rate of at least 40-45% following a robust notice plan; i.e., approximately 600 claimants. Class Counsel anticipates that around 65% of these claimants may settle without adjudication and that around 35%; i.e., 200 claimants will proceed to adjudication. The nature of the Class Members’ damage claims is generally known, but there has been no formal disclosure of the identities of claimants or of the precise nature of the harms suffered by individual claimants.

[14] Class Counsel’s estimate of the number of claimants is questionable. At the trial before Justice Leiper, twenty-two former students testified. However, ten of these witnesses testified for the Defendants and they spoke favourably of their experience attending Grenville Christian College. Justice Leiper found that many Class Members did not experience harm from the Defendants’ negligence and breach of fiduciary duty.

[15] There undoubtably will be claims and some of those claims will be insured claims and some of those claims will be uninsured claims. At this juncture, however, it is not possible to determine how many will be insured claims and how many will be uninsured claims. What is known at this juncture is that the Defendants themselves are judgment proof.

[16] The parties have designed Litigation Plans more or less ignoring the elephant in the room.

[17] As set out in the chart below, Class Counsel and the Defendants’ Counsel have each proposed a Litigation Plan for the individual issues stage of this class proceeding that does not take into account the circumstance that for some unknown number of claimants, the Litigation Plan is a waste of time and a recipe for rubbing salt into their wounds.

[18] The Plaintiffs’ Litigation Plan for the Individual Issues Stage has four major phases; namely: (a) notice to the class and an application process; (b) settlement phase; (c) adjudication tracks, four tracks with increasing monetary limits and augmented interlocutory and trial procedures; and (d) the determination of aggregate punitive damages and pre-judgment interest. The Defendants’ plan is similar in overall design with some substantive differences in the details. The Defendants add a mediation phase. The shading in the chart below notes the major difference between the parties’ proposed Litigation Plans.

Revised Litigation Plan of the Plaintiffs	Defendants’ Litigation Plan – Individual Damages Issue Stage
The issues to be resolved under this plan are the damages, if any, suffered by the Class Members in this action as a result of the Defendants’ breaches of the standard of care and fiduciary duties owed to the Class and the Defendants’ systemically negligent operation of the Grenville Christian College (“GCC”) boarding school between 1974 and 1997. Class Members include all individuals who attended and resided at GCC between September 1973 and July 1997 (excluding children and grandchildren of Charles Farnsworth and/or Alastair Haig), who did not validly opt-out of the proceedings.	The issues to be resolved under this plan are the damages, if any, suffered by the Class Members in this action as a result of the Defendants’ breaches of the standard of care and fiduciary duties owed to the Class and the Defendants’ systemically negligent operation of the Grenville Christian College (“GCC”) boarding school between 1974 and 1997. Class Members include all individuals who attended and resided at GCC between September 1973 and July 1997 (excluding children and grandchildren of Charles Farnsworth and/or Alastair Haig), who did not validly opt-out of the proceedings.
I. Notice & Application All Class Members who want to participate in the individual issues stage of the litigation must respond to a notice regarding same, by way of application to Class Counsel, within 120 days from the dissemination of the notice. (The notice, dissemination plan and application form must be Court approved).	I. Notice & Application All Class Members who want to participate in the individual issues stage of the litigation must respond to a notice regarding same, by way of application to Class Counsel, within 120 days from the dissemination of the notice. (The notice, dissemination plan and application form must be Court approved). Within 60 days of receiving the Applications, they will be forwarded to counsel for the Defendants in the form and content they were received from the Class members, together with all available medical and other documentation regarding damages received by Class Counsel with respect to each responding Class Member and a statement of the quantum of damages being sought in respect of each Class Member who has submitted an Application (hereinafter, “the Summary Briefs”)
II. Settlement Negotiations and Rule 49 Offers to Settle Class Counsel will prepare summary briefs (“Settlement Brief(s)”) for each of the individual Class Members that complete applications, which briefs shall include the completed Application Form and any available medical and/or other documentary evidence, including sworn “Impact Statements”, supporting the claims made and the damages sought for each individual Class Member. (The documents included at this stage supporting the claim need not include expert reports or assessments). • Class Counsel will provide these completed Settlement Briefs to the Defendants, on a rolling basis, for the purposes of settlement negotiations; • The parties will engage in settlement negotiations within 14 days of the Defendants’ receipt of the Class Member’s Settlement Brief; • If the parties do not succeed in settling the claim within 30 days of entering into settlement negotiations, the parties shall present Rule 49 Offers to Settle, and proceed to the adjudication stage (pursuant to one of the adjudication methods set out below).	II. Mediation Within 90 days of receiving the Summary Briefs, the parties will participate in a two day mediation with Todd Archibald (which mediation costs will be at the Defendants’ sole expense irrespective of outcome) in an attempt to reach a global settlement of the individual damages claims or settlement of as many of the individual damages claims as can be accomplished through the mediation process.
III. Adjudication The adjudication of claims will be tiered, based on the type and/or monetary value of the damages sought, and determined based on the procedures set for each tier, as follows:	Adjudication The adjudication of claims will be tiered, based on the type and/or monetary value of the damages sought, and determined based on the procedures set for each tier, as set out below. The parties shall confer as to the order and timing of the adjudication of each class member’s claims and if agreement cannot be reached, the parties shall convene a case management conference with Justice Perell to resolve the disagreements, whose direction shall be binding on the parties and not subject to appeal.
A. Damages Less Than or Equal to $50,000. • These claims will be determined on a paper Application Record. • Cross-examinations may be conducted by written interrogatories and/or out-of-court oral cross examinations (online where possible), on the Application Record or Responding Application Record if required. • The Application Record, the Responding Application Record, along with factums for both parties shall be filed for an application in writing to be determined by a judge of the Ontario Superior Court of Justice, appointed pursuant to Rule 77.06 , of the Rules of Civil Procedure, with the consent of the parties. Appeal rights from any decision shall be in accordance with the Class Proceedings Act, 1992.	A. Damages Less Than or Equal to $10,000. • These claims will be determined on a paper Application Record. • Cross-examinations of no longer than 1.5 hours may be conducted on the Application Record or Responding Application Record if required. • The Application Record, the Responding Application Record, along with factums for both parties shall be filed for an application in writing to be determined by a judge of the Ontario Superior Court of Justice, appointed pursuant to Rule 77.061, of the Rules of Civil Procedure, with the consent of the parties, whose decisions shall be final and not subject to appeal, except with respect to any limitation period defences raised by the Defendants.
B. Damages Between $50,001 and $100,000 • These claims shall be determined by way of Summary Judgment, in accordance with Rule 20 of the Rules of Civil Procedure, including the attendant appeal rights for final orders. These claims will be determined by a judge of the Ontario Superior Court of Justice, in the usual course. • In addition to the filing of the Application Record and Responding Record, a Defence Medical may be scheduled to occur within 60 days of the delivery of the Claimant’s Motion Record. • The claimant will have 60 days from the receipt of the Defence Medical to present a reply expert report, if needed. • Cross-examinations, if any, shall occur within 120 days from the delivery of the Responding Motion Record; and • After Defence Medical and/or cross-examinations are complete, the motion will be determined by a justice of the Ontario Superior Court.	B. Damages Between $10,001 and $50,000 • These claims shall be determined by way of Summary Judgment, in accordance with Rule 20 of the Rules of Civil Procedure, including the attendant appeal rights for final orders. • In addition to the filing of the Application Record and Responding Record, a Defence Medical may be scheduled to occur within 180 days of the delivery of the Claimant’s Motion Record. • The claimant will have 60 days from the receipt of the Defence Medical to present a reply expert report, if needed. • Cross-examinations, if any, shall occur within 120 days from the delivery of the Responding Motion Record; and • After Defence Medical and/or cross-examinations are complete, the motion will be determined by a justice of the Ontario Superior Court.
C. Damages Between $100,001 and $200,000 • If after 90 days following the filing of Responding Record, the claim is not settled, then the claim shall continue as a trial in accordance with the Simplified Procedure Rules, Rule 76 of the Rules of Civil Procedure. This includes: • Provision of affidavits of documents (Rule 76.03) • Oral examinations for discovery, limited to 3 hours (Rule 76.04(2) • Expert Affidavits (Rules 76.09.1 and 53.03) • Settlement Conference (Rule 76.08) • Pre-Trial Conference and steps (Rules 76.10-76.11 and 52.02) • Summary Trial (Rule 76.12) These claims will be determined by a judge of the Ontario Superior Court of Justice, in the usual course	C. Damages Between $50,001 and $200,000 • If after 90 days following the filing of Responding Record, the claim is not settled, then the claim shall continue as a trial in accordance with the Simplified Procedure Rules, Rule 76 of the Rules of Civil Procedure. This includes: • Provision of affidavits of documents (Rule 76.03) • Oral examinations for discovery, limited to 3 hours (Rule 76.04(2) • Expert Affidavits (Rules 76.09.1 and 53.03) Settlement Conference (Rule 76.08) • Pre-Trial Conference and steps (Rules 76.10-76.11 and 52.02) • Summary Trial (Rule 76.12)
D. Damages in Excess of $200,000 • If after 90 days following the filing of Responding Record, the claim is not settled, then the claim shall continue as a trial in accordance with the Rules of Civil Procedure, including the attendant rights for discovery, delivery of expert report and appeal rights. • These claims will be determined by a judge of the Ontario Superior Court of Justice, in the usual course	D. Damages in Excess of $200,000 • If after 90 days following the filing of Responding Record, the claim is not settled, then the claim shall continue as a trial in accordance with the Rules of Civil Procedure, including the attendant rights for discovery, delivery of expert report and appeal rights.
Settlement Prior to Final Adjudication Notwithstanding the adjudication procedures set out above, the parties may settle a class member claim at any time prior to its final adjudication. If settled, the parties will notify the appropriate adjudicator and remove the proceeding from the relative adjudication process as soon as practicable.	Settlement Prior to Final Adjudication Notwithstanding the adjudication procedures set out above, the parties may settle a class member claim at any time prior to its final adjudication. If settled, the parties will notify the appropriate adjudicator and remove the proceeding from the relative adjudication process as soon as practicable.
Punitive Damages – Aggregate Assessment Once all of the Class Member claims have been resolved, either by settlement or adjudication, the Plaintiffs will bring a motion, within 180 days of the final Claim Member claim resolution, for the assessment of punitive damages, on an aggregate basis, pursuant to s. 24 of the Class Proceedings Act. This motion will be brought either before the Case Management Judge or the Common Issues Trial Judge in these proceedings.	Punitive Damages – Aggregate Assessment Once all of the Class Member claims have been resolved, either by settlement or adjudication, the Plaintiffs will bring a motion, within 180 days of the final Claim Member claim resolution, for the assessment of punitive damages, on an aggregate basis, pursuant to s. 24 of the Class Proceedings Act. This motion will be brought either before the Case Management Judge or the Common Issues Trial Judge in these proceedings.
Pre-Judgment Interest and Costs In all cases, whether settled or adjudicated via one of the adjudication procedures above, pre-judgment interest and costs will be agreed to or determined and assessed by a judge of the Ontario Superior Court (assigned per 77.06 as above, or the class action Case Management Judge in these proceedings). In any event, regardless of the method of adjudication, the Simplified Procedure Costs Rules (Rules 76.12.1 and 76.13, ) will not apply.	Pre-Judgment Interest and Costs In all cases, prejudgment interest and costs of each individual damages trial will be determined by the Judge hearing the particular individual damages trial, the scale and quantum of costs to be determined by the Judge depending on the outcome of the particular hearing, including any Rule 49 Offers, as well as the factors set out in R. 57.01.

[19] As mentioned in the prologue and as described above, there is a big problem with the Litigation Plans for the individual issues stage. The plans do not address the circumstance that the Defendants are judgment proof and that their insurance coverage is erratic and not comprehensive for the twenty-five years of the Class Period. The chart below describes the amount of insurance available over the class period (1973 to 1997), and, as appears from the chart, for approximately 40% of the Class Period, there is no insurance coverage. It is also possible that there may be insufficient insurance for the years 1979 and 1981.

Year	Amount
1973	$0
1974	$0
1975	$0
1976	$0
1977	$0
1978	$0
1979	$3.0 million
1980	$0
1981	$1.0 million
1982	$0
1983	$0
1984	$10 million
1985	$10 million
1986	$10 million
1987	$10 million
1988	$10 million
1989	$10 million
1990	$10 million
1991	$10 million
1992	$10 million
1993	$10 million
1994	$10 million
1995	$10 million
1996	$10 million
1997	$10 million

[20] The unfairness caused by the erratic insurance coverage is palpable. Visualize, if a Class Member’s claim was determined to fall within the policy years 1973, 1974, 1975, 1976, 1977, 1978, 1980, 1982, or 1983, he or she would recover nothing from the judgment proof Defendants. Visualize, if a Class Member’s claim was determined to fall within the policy years 1979 or 1981, depending on the number of other claims for those years, there might be insufficient insurance and the insurance might run out before the individual claimant’s claim was adjudicated. The flukes of the insurance coverage raise an unfairness issue. How can it be fair that a Class Member whose harm was suffered in 1983 should recover nothing while a fellow Class Member who suffered the same harm in policy year 1984 is fully compensated?

[21] This type of unfairness problem does not arise when class actions are settled. Typically, when there is a settlement, the defendant provides a settlement fund, and it is distributed fairly amongst the Class Members who prove their claims. The distribution is approved by the court only if it is fair to the collective taken as a whole.

[22] In the immediate case, there is no settlement, and the question to be resolved is whether the court has the means to arrive at a Litigation Plan for the individual issues stage that is fair to the Class Members and that is fair to the Defendants’ insurers who should not be expected to pay more in indemnification than they are contractually obliged to pay.

C. Relevant Provisions of the Class Proceedings Act, 1992

[23] For the present purposes of answering the fairness question and of settling the Litigation Plan for the individual issues stage of this class action, the relevant provisions of the Class Proceedings Act, 1992 are set out in Schedule “B” to these Reasons for Decision.

[24] The relevant provisions are sections 11, 12, 24, 25, 26, 27, and 29.

D. Analysis and Discussion

[25] In my opinion, there is a three-step solution to the problem of the Defendants’ being personally judgment proof but having erratic liability insurance coverage.

[26] The first step is to have an Individual Issues Litigation Plan for the claimants for whom there is insurance coverage. With some tweaking to resolve the disputes between the parties and with one major new ingredient, the rival Litigation Plans, set out above, with the revisions set out in Schedule A takes the first step.

[27] The major new ingredient for the Individual Issues Litigation Plan is that claimants will contribute their adjudicated recoveries to a “Distribution Fund” (akin to a settlement fund) to be divided amongst all the eligible Class Members in accordance with a Distribution Plan.

[28] The second step is to have a Diversion and Claims Program Plan for the claimants for whom there is no insurance coverage. These Class Members will have their claims diverted from the Individual Issues Litigation Plan, and these Class Members will have their eligibility for compensation and the quantum of their entitlement to compensation determined by a Claims Adjuster.

[29] Save for the matter of the determination of which claims are diverted, the Defendants need not be involved in the Diversion and Claims Program Plan because they will not have any exposure to liability for these uninsured claims.

[30] The third step is a Distribution Plan for the Distribution Fund. The Defendants and their insurers shall not and need not be involved in the Distribution Plan, which should be developed by Class Counsel after the completion of both the Individual Issues Litigation Plan and also the Diversion and Claims Program Plan.

[31] With knowledge of what it is dealing with in terms of proven eligible claims and with knowledge of the available funds for distribution, Class Counsel will design the Distribution Plan subject to court approval. The Defendants shall not and need not be involved in the Distribution Plan because the Individual Issues Litigation Plan will have determined the insurer’s liability. Class Counsel will design a Distribution Plan for the Distribution Fund for the insured and the uninsured claims that is fair and reasonable and in the best interests of all the eligible Class Members.

[32] This three-step solution is consistent with the “united we stand, divided we fall” mentality and policy of the Class Proceedings Act, 1992, and this solution is fair to the Defendants’ insurers, who pay no more than they are contractually obliged to pay. It is fair to the Class Members who litigated together for access to justice.

[33] During the hearing of this motion, Class Counsel readily agreed that there was no reason, apart from the flukes of insurance coverage, to treat a Class Member who attended the school in an uninsured period differently from a Class Member who attended the school in an insured period. During the hearing of the motion, the Defendants’ insurer to its credit wished to facilitate a fair distribution that would address the deficiencies in insurance coverage without obliging the insurers to pay more than they were contractually obliged under the various insurance policies.

[34] There are at least six advantages to the three-step solution.

[35] First, it would be a waste of scarce judicial resources for uninsured (judgment proof) claims to be litigated. Under the three-step solution, these claims are diverted to a Diversion and Claims Program Plan. That plan need not involve the Defendants’ insurers. The Defendants being judgment proof are not interested in defending the uninsured claims. The Defendants’ insurers are not interested in defending these claims because they are outside coverage. Because of the Diversion and Claims Program Plan, the Defendants’ insurers can focus their attention on claims for which there is insurance coverage.

[36] Second, regardless of insurance coverage, every Class Members has a right to pursue compensation from the Defendants and this is recognized by the three-step solution. No Class Member is abandoned because of the flukes of insurance coverage. All the Class Members share in the Distribution Fund in accordance with the Distribution Plan. The legitimacy of the insured claims will be determined by the Individual Issues Litigation Plan. The legitimacy of the uninsured claims will be determined by the Plan Administrator for the Diversion and Claim Program Plan.

[37] Third, the tweaks to the rival Litigation Plans, which are the basis of the Individual Issues Litigation Plan, take the first step, These plans are designed to provide the Defendants’ insurers with enough information to determine which claims should be diverted and which and how the remaining insured claims should be litigated. The tweaks are designed to encourage the prospects of individual settlements and may also lead to an overall settlement proposal, subject to court approval.

[38] Fourth, as explained further below, the Individual Issues Litigation Plan is designed to emulate and facilitate normal adjudication of personal injury claims where a lawyer meets with his or her client, gives advice, and takes instructions as to the prosecution of the claim and the defendant is provided with notice of the claim it must meet and a fair procedure to do so.

[39] Fifth, the Distribution Plan, which must be court approved, need not be determined immediately. It will be determined after the completion of the Individual Issues Litigation Plan and the Diversion and Claims Program Plan with sufficient data to determine what is fair and in the best interests of the Class Members as a collective.

[40] Sixth, the three-step approach is consistent with the collective spirit of the Class Proceedings Act, 1992 of providing access to justice for a group of claimants who fairly share the outcome. This spirit is simply extended into the individual issues stage where the class members continue to litigate for the benefit of the collective. As it happens, this approach also facilitates dealing with the matters of sharing the punitive damages and the claims for pre-judgment interest on the individual issues judgments.

[41] I believe - but for present purposes need not finally determine - that I have the jurisdiction to impose this three-step solution pursuant to sections 11, 12, 24, 25, 26, and 27 of the Class Proceedings Act, 1992, and I know that I have the jurisdiction to approve this three-step solution pursuant to s. 29 of the Act if the parties were to consensually advance it as a notional settlement agreement as to how individual issues are to be determined.

[42] In these last regards, the only novel and debatable jurisdictional matter is the ingredient of the Individual Issues Litigation Plan that assembles a Distribution Fund to be divided amongst Class Members in accordance with a Distribution Plan rather than paid out to individual issues claimants.

[43] This approach of a fund and a distribution scheme is a normal ingredient in a settlement agreement that is subject to court approval under s. 29 of the Class Proceedings Act, 1992, but arguably this approach is also available pursuant to the above enumerated provisions of the Act. Section 25, which provides the court with the authority to settle the distribution plan, is a powerful and flexible provision,[^9] and its powers can be augmented by section 12 of the Act, which empowers the court to “make any order it considers appropriate respecting the conduct of a proceeding under this Act to ensure its fair and expeditious determination” and, to “impose such terms on the parties as it considers appropriate.”[^10]

[44] In the immediate case, any jurisdictional impediments could be resolved by the parties agreeing to the Individual Issues Litigation Plan and treating it as a settlement agreement subject to court approval. (The Indian Residential Schools Settlement Agreement is an example of this court’s jurisdiction to approve a settlement that involves a resolution of as yet undetermined individual claims.)

[45] In the immediate case, the parties are actually not that far apart in their Litigation Plans for the individual issues phase, and the Defendants’ insurers can hardly complain if they do not have to deal with the diverted claims, and as I have already said, defendants typically do not need to be concerned about Distribution Plans once the defendants’ maximum liability is fairly and properly determined.

[46] With these thoughts in mind what is set out in Schedule “A” is a conditionally approved Individual Issues Litigation Plan. The conditions are: (1) final approval of the plan is conditional upon the parties’ submissions for revisions to the Individual Issues Litigation Plan within 120 days of the release of these Reasons for Decision; and (2) the court approving a Diversion and Claims Program Plan to be submitted by Class Counsel within 120 days of the release of these Reasons for Decision.

[47] Schedule A includes commentary explaining the provisions of the Individual Issues Litigation Plan and anticipating the Diversion and Claims Program Plan and the Distribution Plan. As noted above, the Individual Issues Litigation Plan tweaks the plans already submitted by the parties and resolves the areas of difference.

E. Schedule “A” – Individual Issues Litigation Plan

Individual Issues Litigation Plan	Commentary
The issues to be resolved under (a) the Individual Issues Litigation Plan, and (b) the Diversion and Claims Program Plan are the damages, if any, suffered by the Class Members as a result of the Defendants’ negligence and breaches of fiduciary duty in the operation of Grenville Christian College boarding school between 1974 and 1997. To the extent that there is insurance coverage for the Defendants’ liability, compensation for the damages will be shared amongst Class Members in accordance with a Distribution Plan that must be approved by the Superior Court of Justice. Class Members include all individuals who attended and resided at Grenville Christian College between September 1973 and July 1997 (excluding children and grandchildren of Charles Farnsworth and/or Alastair Haig), who did not validly opt-out of the proceedings.	[48] Once the class proceedings reaches the individual issues stage, the Class Members are free to engage their own lawyer for the individual issues phase of the action. The Individual Issues Litigation Plan is based on requiring the Class Members to retain Class Counsel in the first instance. The Class Member, however, would be free to change lawyers subsequently. Practically speaking, such a change of lawyer is unlikely, given the superior knowledge about the litigation and Class Counsel’s experience with class proceedings.
I. Notice, Intake Interview & Application All Class Members who want to participate in the individual issues stage must apply by way of a Retainer Appointment Form delivered to Class Counsel within 120 days from the dissemination of the Notice of the Individual Issues Litigation Plan. If a Class Member does not deliver a Retainer Appointment Form, he or she will be deemed to have released all claims against the Defendants. Where a Retainer Appointment Form is received, Class Counsel will schedule an intake interview within 240 days from the dissemination of the notice of the Individual Issues Litigation Plan. At the intake interview, Class Counsel will assist the Class Member in completing the Application Form The Application Form, akin to a Statement of Claim, will plead the material facts of the Class Member’s Claim. On the Application Form, the Class Member will designate his or her claim for: (a) the Diversion Program; or (b) an Adjudication Track. Within 240 days from the dissemination of the Notice of the Individual Issues Litigation Plan, Class Counsel will forward copies of the Application Form to the Defendants’ Counsel along with a Rule 49 Offer to Settle if an Adjudication Track has been designated. Class Counsel may in its sole and unfettered discretion also forward medical and/or other documentary evidence, including Impact Statements, and expert’s reports etc. supporting the claims made and the damages sought for a Claimant. The Notices and Forms must be Court approved.	[49] Under the Individual Issues Litigation Plan Class Counsel will have issued a Notice notifying the Class Members that they must deliver a Retainer Appointment Form within 120 days of the dissemination of the Notice. Section 25 (4) of the Class Proceedings Act, 1992 empowers the court to set a time within which individual class members may make claims. Extensions to the deadline are possible pursuant to s. 25 (6). Section 25 (5) provides that a class member who fails to make a claim may not later make a claim except with leave of the court.
Upon receipt of an Application Form designated for an Adjudication Track, the Defendant shall have 60 days to challenge the Application on the ground that it should be designated for the Diversion Program. The challenge shall be by motion in writing to be decided by the Claims Adjuster of the Diversion Program. There shall be no appeal of the Claims Adjuster’s decision.	[50] Under the Individual Issues Litigation Plan, after a Class Member delivers a Retainer Appointment Form, Class Counsel will arrange an intake interview at which time Class Counsel will assist the Class Member in completing the Application Form. On the Application Form, the Class Member will designate his claim for (a) the Diversion Program, or (b) an Application Track.
III. Diversion and Claims Program [To be determined and approved by the court]	[51] Under the Individual Issues Litigation Plan, within 240 days from the dissemination of the Notice to the Class Members, Class Counsel will forward copies of the Application Form to the Defendants’ Counsel along with a Rule 49 Offer to Settle if an Adjudication Track has been designated for the Diversion Program. Thus, under the Individual Issues Litigation Plan, the Defendants’ insurers will know their maximum exposure and be in a position to begin settling or adjudicating individual claims within 240 days.
IV. Adjudication Where a Class Member designates his or her claim for the adjudication, the adjudication of claims will be tiered, based on the type and/or monetary value of the damages sought, and the claims will be prosecuted based on the procedures prescribed for each tier, as set out below. The issues for adjudication are the Class Member’s claim for compensation, pre-judgment interest, for punitive damages, and costs. The amount of the judgment, if any, of the Class Member’s claim shall be paid into the Distribution Fund to be distributed in accordance with the Distribution Plan approved by the court.
TRACK A: Damages Less Than or Equal to $50,000 Claims for damages less than or equal to $50,000 shall be determined by a motion in writing to a judge or associate judge pursuant to the motion in writing procedure of the Rules of Civil Procedure. Cross-examinations of no longer than 4 hours may be conducted on the Application Record or Responding Record, if any. There shall be a right of appeal to a single judge of the Divisional Court.
TRACK B: Damages Between $50,001 and $100,000 Claims for damages between $50,001 and $100,000 shall be determined by a judge or an associate judge by way of a summary judgment procedure in accordance with Rule 20 of the Rules of Civil Procedure, including the attendant appeal rights for final orders. Cross-examinations, if any, shall occur within 120 days from the delivery of the Responding Motion Record A Defence Medical may be scheduled to occur within 90 days of the delivery of the Class Member’s Motion Record. The Class Member may within 90 days from the receipt of the Defence Medical deliver a Reply Expert Medical Report.
TRACK C. Damages Between $100,001 and $200,000 Claims for damages between $100,001 and $200,000 shall be determined by a judge or an associate judge by way of Rule 76 of the Rules of Civil Procedure (Simplified Procedure). This includes: • Provision of affidavits of documents (Rule 76.03) • Oral examinations for discovery, limited to 3 hours (Rule 76.04(2) • Expert Affidavits (Rules 76.09.1 and 53.03) • Settlement Conference (Rule 76.08) • Pre-Trial Conference and steps (Rules 76.10-76.11 and 52.02) • Summary Trial (Rule 76.12)
TRACK D: Damages in Excess of $200,000 Claims for damages in excess of $200,000 shall be determined by a judge or an associate judge in accordance with the Rules of Civil Procedure.

F. Conclusion

[52] For the above reasons, I conditionally approve the Individual Issues Litigation Plan as set out in Schedule “A” to these Reasons for Decision. The conditions are: (1) final approval of the Individual Issues Litigation Plan is conditional upon the parties’ submissions for revisions to the plan within 120 days of the release of these Reasons for Decision; and (2) the court approving a Diversion and Claims Program Plan to be submitted by Class Counsel within 120 days of the release of these Reasons for Decision.

Perell, J.

Released: September 22, 2022.

Schedule “B” – Excerpts from the Class Proceedings Act, 1992

Stages of class proceedings

11 (1) Subject to section 12, in a class proceeding,

(a) common issues for a class shall be determined together;

(b) common issues for a subclass shall be determined together; and

(c) individual issues that require the participation of individual class members shall be determined individually in accordance with sections 24 and 25.

Separate judgments

(2) The court may give judgment in respect of the common issues and separate judgments in respect of any other issue. 1992, c. 6, s. 11 (2).

Court may determine conduct of proceeding

12 The court, on its own initiative or on the motion of a party or class member, may make any order it considers appropriate respecting the conduct of a proceeding under this Act to ensure its fair and expeditious determination and, for the purpose, may impose such terms on the parties as it considers appropriate.

Aggregate assessment of monetary relief

24 (1) The court may determine the aggregate or a part of a defendant’s liability to class members and give judgment accordingly where,

(a) monetary relief is claimed on behalf of some or all class members;

(b) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined in order to establish the amount of the defendant’s monetary liability; and

(c) the aggregate or a part of the defendant’s liability to some or all class members can reasonably be determined without proof by individual class members.

Average or proportional application

(2) The court may order that all or a part of an award under subsection (1) be applied so that some or all individual class members share in the award on an average or proportional basis.

Idem

(3) In deciding whether to make an order under subsection (2), the court shall consider whether it would be impractical or inefficient to identify the class members entitled to share in the award or to determine the exact shares that should be allocated to individual class members.

Court to determine whether individual claims need to be made

(4) When the court orders that all or a part of an award under subsection (1) be divided among individual class members, the court shall determine whether individual claims need to be made to give effect to the order.

Procedures for determining claims

(5) Where the court determines under subsection (4) that individual claims need to be made, the court shall specify procedures for determining the claims.

Idem

(6) In specifying procedures under subsection (5), the court shall minimize the burden on class members and, for the purpose, the court may authorize,

(a) the use of standardized proof of claim forms;

(b) the receipt of affidavit or other documentary evidence; and

(c) the auditing of claims on a sampling or other basis.

Time limits for making claims

(7) When specifying procedures under subsection (5), the court shall set a reasonable time within which individual class members may make claims under this section.

Idem

(8) A class member who fails to make a claim within the time set under subsection (7) may not later make a claim under this section except with leave of the court.

Extension of time

(9) The court may give leave under subsection (8) if it is satisfied that,

(a) there are apparent grounds for relief;

(b) the delay was not caused by any fault of the person seeking the relief; and

(c) the defendant would not suffer substantial prejudice if leave were given.

Court may amend subs. (1) judgment

(10) The court may amend a judgment given under subsection (1) to give effect to a claim made with leave under subsection (8) if the court considers it appropriate to do so. 1992, c. 6, s. 24 (10).

Individual issues

25 (1) When the court determines common issues in favour of a class and considers that the participation of individual class members is required to determine individual issues, other than those that may be determined under section 24, the court may,

(a) determine the issues in further hearings presided over by the judge who determined the common issues or by another judge of the court;

(b) appoint one or more persons to conduct a reference under the rules of court and report back to the court; and

(c) with the consent of the parties, direct that the issues be determined in any other manner.

Directions as to procedure

(2) The court shall give any necessary directions relating to the procedures to be followed in conducting hearings, inquiries and determinations under subsection (1), including directions for the purpose of achieving procedural conformity.

Idem

(3) In giving directions under subsection (2), the court shall choose the least expensive and most expeditious method of determining the issues that is consistent with justice to class members and the parties and, in so doing, the court may,

(a) dispense with any procedural step that it considers unnecessary; and

(b) authorize any special procedural steps, including steps relating to discovery, and any special rules, including rules relating to admission of evidence and means of proof, that it considers appropriate.

Time limits for making claims

(4) The court shall set a reasonable time within which individual class members may make claims under this section.

Idem

(5) A class member who fails to make a claim within the time set under subsection (4) may not later make a claim under this section except with leave of the court.

Extension of time

(6) Subsection 24 (9) applies with necessary modifications to a decision whether to give leave under subsection (5).

Determination under cl. (1) (c) deemed court order

(7) A determination under clause (1) (c) is deemed to be an order of the court.

Judgment distribution

26 (1) The court may direct any means of distribution of amounts awarded under section 24 or 25 that it considers appropriate.

Idem

(2) In giving directions under subsection (1), the court may order that,

(a) the defendant distribute directly to class members the amount of monetary relief to which each class member is entitled by any means authorized by the court, including abatement and credit;

(b) the defendant pay into court or some other appropriate depository the total amount of the defendant’s liability to the class until further order of the court; and

(c) any person other than the defendant distribute directly to class members the amount of monetary relief to which each member is entitled by any means authorized by the court.

Idem

(3) In deciding whether to make an order under clause (2) (a), the court shall consider whether distribution by the defendant is the most practical way of distributing the award for any reason, including the fact that the amount of monetary relief to which each class member is entitled can be determined from the records of the defendant.

(4)-(6) Repealed: 2020, c. 11, Sched. 4, s. 23 (1).

Supervisory role of the court

(7) The court shall supervise the execution of judgments and the distribution of awards under section 24 or 25 and may stay the whole or any part of an execution or distribution for a reasonable period on such terms as it considers appropriate.

Payment of awards

(8) The court may order that an award made under section 24 or 25 be paid,

(a) in a lump sum, forthwith or within a time set by the court; or

(b) in instalments, on such terms as the court considers appropriate.

Costs of distribution

(9) The court may order that the costs of distribution of an award under section 24 or 25, including the costs of notice associated with the distribution and the fees payable to a person administering the distribution, be paid out of the proceeds of the judgment or may make such other order as it considers appropriate. 1992, c. 6, s. 26 (9).

Return of unclaimed amounts

(10) Any part of an award for division among individual class members that remains unclaimed or otherwise undistributed after a time set by the court shall be returned to the party against whom the award was made, without further order of the court. 1992, c. 6, s. 26 (10).

Duty of person, entity administering distribution

(11) A person or entity administering the distribution of an award under section 24 or 25 shall do so in a competent and diligent manner.

Report

(12) […]

Judgment on common issues

27 (1) A judgment on common issues of a class or subclass shall,

(a) set out the common issues;

(b) name or describe the class or subclass members;

(c) state the nature of the claims or defences asserted on behalf of the class or subclass; and

(d) specify the relief granted.

Effect of judgment on common issues

(2) A judgment on common issues of a class or subclass does not bind,

(a) a person who has opted out of the class proceeding; or

(b) a party to the class proceeding in any subsequent proceeding between the party and a person mentioned in clause (a).

Idem

(3) A judgment on common issues of a class or subclass binds every class member who has not opted out of the class proceeding, but only to the extent that the judgment determines common issues that,

(a) are set out in the certification order;

(b) relate to claims or defences described in the certification order; and

(c) relate to relief sought by or from the class or subclass as stated in the certification order.

Mandatory dismissal for delay

29.1 (1) The court shall, on motion, dismiss for delay a proceeding commenced under section 2 unless, by the first anniversary of the day on which the proceeding was commenced,

(a) the representative plaintiff has filed a final and complete motion record in the motion for certification;

(b) the parties have agreed in writing to a timetable for service of the representative plaintiff’s motion record in the motion for certification or for completion of one or more other steps required to advance the proceeding, and have filed the timetable with the court;

(c) the court has ordered that the proceeding not be dismissed and has established a timetable for service of the representative plaintiff’s motion record in the motion for certification or for completion of one or more other steps required to advance the proceeding; or

(d) any other steps, occurrences or circumstances specified by the regulations have taken place.

Notice

(2) If a proceeding is dismissed for delay under subsection (1), the court shall order that the solicitor for the representative plaintiff give notice of the dismissal by,

(a) publishing the notice and a copy of the order on the website of the solicitor or of the law firm or other entity through which the solicitor practices law;

(b) sending the notice and a copy of the order to every class member who has contacted the solicitor to express an interest in the proceeding; and

(c) taking any other steps to give notice that the court may specify.

Same

(3) Section 20 applies, with necessary modifications, with respect to a notice required to be given under subsection (2).

Costs

(4) The solicitor for the representative plaintiff shall bear the costs of giving notice under subsection (2) and shall not attempt to recoup any portion of the costs from the class or any class member, or from the defendant.

[^1]: S.O. 1992, c. 6.

[^2]: “If the full extent of the damage has become a certainty at a point in time before it is discovered, the injury in fact has occurred by that point in time. Consequently, the fact that there may be further deterioration after that point does not trigger any policies in place after that point, because the damage is already complete. It will be a matter of evidence at the trial as to when the damage became complete:” Alie v. Bertrand & Frere Construction Co., 2002 31835 (ON CA), [2002] O.J. No. 4697 at para. 142 (C.A.).

[^3]: Doucet v. The Royal Winnipeg Ballet, 2022 ONSC 976; Kidd v. Canada Life Assurance Company, 2013 ONSC 1868; Farkas v. Sunnybrook and Women’s Health Sciences Centre, [2009] O.J. No. 3533 (S.C.J.); Fantl v. Transamerica Life Canada, [2009] O.J. No. 3366 (S.C.J.); Al-Harazi v. Quizno’s Canada Restaurant Corp. (2007), 49 C.P.C. (6th) 191 (Ont. S.C.J.); Baxter v. Canada (Attorney General) (2006), 2006 41673 (ON SC), 83 O.R. (3d) 481 (S.C.J.); Fraser v. Falconbridge Ltd., [2002] O.J. No. 2383 (S.C.J.); Dabbs v. Sun Life Assurance Company of Canada (1998), 1998 14855 (ON SC), 40 O.R. (3d) 429 (Gen. Div.).

[^4]: Cavanaugh v. Grenville Christian College, 2012 ONSC 2995, affd 2013 ONCA 139.

[^5]: Cavanaugh v. Grenville Christian College, 2012 ONSC 2398.

[^6]: Cavanaugh v. Grenville Christian College, 2014 ONSC 290 (Div. Ct.).

[^7]: Cavanaugh v. Grenville Christian College, 2020 ONSC 1133.

[^8]: Cavanaugh v. Grenville Christian College, 2021 ONCA 755.

[^9]: Brazeau v Canada (AG) 2021, ONSC 8158; Lundy v VIA Rail Canada Inc., 2016 ONSC 425, 2015 ONSC 7063, and 2015 ONSC 1879; Anderson v Wilson 1997 12104 (ON SC), [1997] O.J. No. 548 (Gen. Div.); Endean v Canadian Red Cross Society 1997 2079 (BC SC), [1997] B.C.J. No. 1209.

[^10]: With respect to the power of s. 12, see: Mancinelli v. Royal Bank of Canada, 2020, ONSC 7284; Canada (Attorney General) v. Fontaine, 2017 SCC 47, aff’g 2016 ONCA 241; Peter v. Medtronic Inc., [2008] OJ No. 4378 (S.C.J.); Jeffery v. London Life Insurance Co, [2008] O.J. No. 837 (S.C.J.); Guglietti v. Toronto Area Transit Operating Authority (c.o.b. Go Transit), [2000] O.J. No. 2144 (S.C.J.); Vitapharm Canada Ltd. v. F. Hoffman-LaRoche Ltd. (2000), 2000 29027 (ON SC), 48 OR (3d) 21 (S.C.J.); Ontario New Home Warranty Program v. Chevron Chemical Co. (1999), 1999 15098 (ON SC), 46 OR (3d) 130 (S.C.J.).