Court File and Parties
COURT FILE NO.: CV-15-523669CP DATE: 20230518 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN: I.P and M.P. Plaintiffs - and – JESUIT FATHERS OF UPPER CANADA (a.k.a. ENGLISH CANADA PROVINCE), ROMAN CATHOLIC EPISCOPAL CORPORATION OF THE DIOCESE OF SAULT STE. MARIE, THE ROMAN CATHOLIC BISHOP OF SAULT STE. MARIE, ESTATE OF FATHER GEORGE EPOCH and ESTATE OF BROTHER O’MEARE Defendants
Proceeding under the Class Proceedings Act, 1992
Counsel: Michael Troy for the Plaintiffs William Blakeney, Giovanna Asaro, and Charles Gibson for the Defendants
HEARD: In writing
PERELL, J.
REASONS FOR DECISION
A. Introduction
[1] In 2015, I.P and M.P. commenced a proposed class action under the Class Proceedings Act, 1992 against: (a) the Jesuit Fathers of Upper Canada; (b) the Roman Catholic Episcopal Corporation of the Diocese of Sault Ste. Marie; (c) the Roman Catholic Bishop of Sault Ste. Marie; (d) the Estate of Father George Epoch; and (d) the Estate of Brother O’Meare.
[2] I.P. and M.P now bring a motion for an Order approving the discontinuance of the action without costs and with no requirement to provide notice of discontinuance to the putative class members.
[3] For the reasons that follow, I grant an Order discontinuing this proposed class action, but I do require the notices of the discontinuance to be provided to the putative class members.
[4] More precisely, I make the following Order:
a. Leave is granted to discontinue this proposed class action.
b. The Merchant Law Group shall post on its firm’s website and have published in the The Manitoulin Expositor and in the national issue of the Globe and Mail the following notice:
NOTICE OF DISCONTINUANCE OF CLASS ACTION RELATING TO ALLEGATIONS OF SEXUAL ASSAULT AGAINST CHILDREN AT THE HOLY CROSS MISSION IN WIKWEMIKONG, ONTARIO.
PLEASE READ THIS NOTICE CAREFULLY. IT MAY AFFECT YOUR LEGAL RIGHTS.
On March 11 2015, pursuant to the Class Proceedings Act, 1992, a proposed class action was commenced in Toronto with Action No. CV-15-523669CP.
The action was brought against: (a) the Jesuit Fathers of Upper Canada; (b) the Roman Catholic Episcopal Corporation of the Diocese of Sault Ste. Marie; (c) the Roman Catholic Bishop of Sault Ste. Marie; (d) the Estate of Father George Epoch; and (d) the Estate of Brother O’Meare.
The action was brought on behalf of (a) all persons who were abused as children by clergy or staff of the Holy Cross Mission in Wikwemikong, Ontario; and (b) all parents, spouses, children, and siblings of the abused persons.
This Notice is to advise you that this proposed class action has been discontinued. The Ontario Superior Court of Justice has approved this discontinuance. The discontinuance of this action means that the proposed class action is not going forward.
If you are a person for whom the proposed class action was originally commenced and you have any questions, then you should obtain independent legal advice from a law firm other than the Merchant Law Group.
THIS NOTICE HAS BEEN AUTHORIZED BY THE ONTARIO SUPERIOR COURT OF JUSTICE.
c. The Merchant Law Group shall deliver a copy of these Reasons for Decision to the twenty-nine putative Class Members who have settled and released their claims against the Defendants.
B. Factual Background
[5] The factual background to this motion follows is as follows:
[6] I.P. and M.P. are residents of Wikwemikong, Ontario and members of the Roman Catholic Church. Wikwemikong is a small isolated community on Manitoulin Island and is the location of an unceded Indian reserve.
[7] In 2015, I.P and M.P. retained the Merchant Law Group LLP to commence a proposed class action.
[8] The Statement of Claim was issued in Toronto on March 11, 2015.
[9] In their Statement of Claim, I.P. and M.P. claimed general damages in excess of $50 million, special damages in excess of $50 million, and punitive damages to be determined at trial.
[10] In their Statement of Claim, they alleged that:
a. the late Father George Epoch was a Jesuit priest and an employee of the Jesuit Fathers of Upper Canada, the Roman Catholic Bishop of Sault Ste. Marie, and the Roman Catholic Episcopal Corporation of the Diocese of Sault Ste. Marie. It is alleged that Father Epoch served the native communities in and around Wikwemikong, Ontario from 1959 to 1963, 1969 to 1971 and 1983 to 1986 and that he sexually abused child members of the Church during those years (I.P. was sexually abused by Father Epoch);
b. the late or whereabouts unknown Brother O’Meare was a Jesuit priest and an employee of the Jesuit Fathers of Upper Canada, the Roman Catholic Bishop of Sault Ste. Marie, and the Roman Catholic Episcopal Corporation of the Diocese of Sault Ste. Marie. It is alleged that Brother O’Meare served the native communities in and around Wikwemikong, Ontario from between 1950 to 1960 and that he sexually abused child members of the Church during those years (M.P. was sexually assaulted by Brother O’Meare); and
c. the late or whereabouts unknown Brother Hinton was a Jesuit priest and an employee of the Jesuit Fathers of Upper Canada, the Roman Catholic Bishop of Sault Ste. Marie, and the Roman Catholic Episcopal Corporation of the Diocese of Sault Ste. Marie. It is alleged that Brother Hinton served the native communities in and around Wikwemikong, Ontario from between 1963 to 1970 and that he sexually abused child members of the Church during those years.
[11] I.P. and M.P. brought their proposed class action on behalf of:
a. All persons who were abused as children by clergy or staff of the Holy Cross Mission in Wikwemikong; and
b. All parents, spouses, children, and siblings of the abused persons above.
[12] Between 2015 and 2019, the pleadings were completed, but no progress was made in the proposed class action. Putative Class Counsel has never moved to have the action set down for a certification motion.
[13] In 2019, Chief Duke Peltier and Senior Policy Analyst Sandra Wabegijig of the Wiikwemkoong Unceded First Nation approached the counsel for the Jesuit Fathers of Upper Canada and asked that the legal process be resolved by an informal process that would as fair and not re-traumatize and re-victimize the putative Class Members.
[14] Discussions followed with the Merchant Law Group with the leaders of the Wiikwemkoong community, and a consensus emerged that there should be a more informal process and the putative Class Members should advance their claims on an individual basis. It was agreed that compensation would be negotiated in accordance with the awards made in the Federal “Day School Settlement,” which was a class action similar to the Indian Residential Schools Class Action.
[15] The outcome of this consensus is that I.P. and M.P. and twenty-seven putative Class Members retained the Merchant Law Group to act in individual actions.
[16] Thus, without court approval the proposed class action was abandoned.
[17] I.P. and M.P. settled their claims, and they signed full and final releases discharging the defendants from any possible future liability.
[18] The other twenty-seven putative class members settled their claims on an individual basis and signed full and final releases.
[19] Each of the twenty-nine putative class members underwent a credibility assessment and twenty-five were examined for discovery. After this process, the Merchant Law Group and the Defendants’ counsel negotiated the individual settlements.
[20] The terms of the individual settlements were not disclosed to this court. The counsel fee or costs awards were not disclosed to this court.
[21] I.P. and M.P. do not wish to proceed with the proposed class action and have given instructions in writing to discontinue the action.
[22] Apart from the twenty-nine putative class members that retained the Merchant Law Group no other putative class members contacted the law firm, although the existence of the proposed class action was well known in the Wikwemikong community. The existence of the proposed class action and the individual actions were the topic of meetings: (a) with community leaders; (b) at town hall type meetings with community members; (c) with members of the Wiikwemkoong Unceded First Nation with the Merchant Law Group; (d) and the topic of newspaper articles in the local newspaper the Manitoulin Expositor.
C. Discussion and Analysis
[23] Section 29 of the Class Proceedings Act, 1992 requires court approval for the discontinuance, abandonment, dismissal or settlement of a proceeding commenced under the Act and section 29.1 provides for the dismissal of a class action for delay. Sections 29 and 29.1 state:
Discontinuance, abandonment and dismissal for delay
Court approval required
29 (1) A proceeding under this Act may be discontinued or abandoned only with the approval of the court, on such terms as the court considers appropriate.
Notice
(2) In approving a discontinuance or abandonment, or in dismissing a proceeding for delay, other than under section 29.1, the court shall consider whether notice should be given under section 19, and whether such notice should include,
(a) an account of the conduct of the proceeding;
(b) a statement of the result of the proceeding;
(c) any other prescribed information; and
(d) any other information the court considers appropriate.
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 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.
(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.
[24] A motion for discontinuance or abandonment should be carefully scrutinized, and the court should consider, among other things: whether the proceeding was commenced for an improper purpose; whether, if necessary, there is a viable replacement party so that putative class members are not prejudiced; or whether the defendant will be prejudiced. See, for example: Green v. The Hospital for Sick Children, 2021 ONSC 8237; Batten v. Boehringer Ingelheim, 2021 ONSC 6606; Johnson v North American Palladium Ltd, 2021 ONSC 3346; Bardoul v. Novartis Pharmaceuticals Canada Inc., 2021 ONSC 2261; Winter v. C.R. Bard, 2020 ONSC 3532; Naylor v. Coloplast Canada Corporation, 2016 ONSC 1294; Drywall Acoustic Lathing and Insulation Local 675 Pension Fund (Trustees of) v. SNC-Lavalin Group Inc., 2012 ONSC 5288; Frank v. Farlie, Turner & Co, LLC, 2011 ONSC 7137; Hudson v Austin, 2010 ONSC 2789; Sollen v. Pfizer, 2008 ONCA 803 (aff'g 2008 ON SC 8618); Logan v. Canada (Minister of Health), [2003] O.J. No. 418 (S.C.J.), aff’d (2004), 2004 ONCA 184.
[25] In the immediate case, there is no doubt that the proposed class action was not commenced for an improper purpose; however, I have no way of ascertaining whether the twenty-nine putative class members who settled have been prejudiced by the abandonment of the class proceeding by the representative plaintiffs and by the Merchant Law Group.
[26] Had the proposed class action proceeded in its normal course and a settlement been negotiated, the court would have been charged with the responsibility of determining whether the settlement and the counsel fee should be approved. In that court approval process, the court considers many factors to ensure that there has been no collusion, no champerty, and that the settlement is fair and reasonable. That analysis has not been done in the immediate case. Even in individual litigation, contingency fees agreements must be approved by the court pursuant to the Solicitor’s Act so that they are not champertous, and I do not know whether that occurred in the immediate case.
[27] It may be that the negotiated settlements and the fees are reasonable and in the best interests of the putative class members who settled, but I cannot conclude that based on the information proffered on this discontinuance motion.
[28] In the immediate case, it appears that the commencement of the proposed class action was ultimately used as a means to recruit clients. This recruitment technique is not per se improper, and this technique has been properly achieved in other cases; however, typically, the putative Class Counsel asks permission to discontinue before and not after the fact.
[29] In the immediate case, this technique of after the fact permission to discontinue is a particularly sensitive matter because the putative class members would qualify as persons who are vulnerable or who have suffered a traumatic experience and has not yet had a chance to recover under Rule 4.1-2 of the Ontario Law Society’s Rules of Professional Conduct, which provides as follows:
4.1-2 In offering legal services, a lawyer shall not use means that
(a) are false or misleading;
(b) amount to coercion, duress, or harassment;
(c) take advantage of a person who is vulnerable or who has suffered a traumatic experience and has not yet had a chance to recover;
(d) are intended to influence a person who has retained another lawyer or paralegal for a particular matter to change that representative for that matter, unless the change is initiated by the person or that representative; or
(e) otherwise bring the profession or the administration of justice into disrepute.
[30] I wish to be clear, I do not know if there was anything untoward or improper in the immediate case and the evidence filed on this motion is that I.P. and M.P. were fully informed and grateful for the legal services provided by the Merchant Law Group; however: (a) it would have been preferable for the law firm to obtain permission to abandon the proposed class action, which likely would have been granted, rather than to seek permission to discontinue an abandoned class action; and (b) to repeat what I said above, it may be that the negotiated settlements and the fees are reasonable and in the best interests of the putative class members who settled, but I cannot conclude that based on the information proffered on this discontinuance motion.
[31] Thus, the test for the approval of a discontinuance is not met in the immediate case.
[32] However, the dilemma is that refusing a discontinuance is futile. There are no representative plaintiffs willing to represent the putative class members who have not settled, and, in any event, the defendants could have the proposed class action mandatorily dismissed for delay pursuant to s. 29.1 of the Class Proceedings Act, 1992.
[33] And in any event, the putative Class Members who have not settled would not be prejudiced by a discontinuance because their potential claims are not subject to any limitation period defence. In Ontario, there is no limitation period in respect of a proceeding based on a sexual assault or misconduct of a sexual nature if at the time of the misconduct, the injured party was a minor, as per the Limitations Act, 2002, S.O. 2002, c. 24, Sched., s. 16(1)(h), which is the situation in the immediate case.
[34] In the immediate case, the purpose of s. 29 has been thwarted, but resistance is futile pursuant to s. 29.1. No purpose is served by continuing this abandoned proposed class proceeding. However, some purpose could and should be served by giving notice of the discontinuance.
[35] The putative class members who have not settled their claims need to know that they cannot rely on the proposed class action as a means to access to justice. It may be that there are no such claimants, particularly among those who never left Manitoulin Island, but other putative class members may never have been aware of this particular class action and given the nature and seriousness of sexual assault claims, it is appropriate that all the putative class members know about the discontinuance of the proposed class action. I, therefore, Order that putative Class Counsel, the Merchant Law Group, give the notice set out in the Introduction to these Reasons for Decision.
[36] As for the putative class members that did settle, they also should be given direct notice of the discontinuance by receiving a copy of these Reasons for Decision. In these Reasons for Decision, I recommend that if these putative class members have any questions, they should obtain independent legal advice from a law firm other than Merchant Law Group.
[37] Order accordingly.