Court File and Parties
COURT FILE NO.: CV-21-00000431-0000
DATE: 2023/02/01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: A.B. by his Litigation Guardian, A.B.’s MOTHER and A.B.’s MOTHER, Plaintiffs
AND:
A.B.’s ELEMENTARY SCHOOL, A.B.’s SCHOOL PRINCIPAL and A.B.’S CLASSROOM TEACHER, Defendants[^1]
BEFORE: Justice I.F. Leach
COUNSEL: Vicki J. Edgar, for the Plaintiffs James C. Dakin, for the Defendants
HEARD: In writing
SUPPLEMENTAL ENDORSEMENT
[1] This endorsement is intended to supplement my earlier endorsement in the same matter, released on June 5, 2022, and reported as A.B. v. A.B. Elementary School et al., 2022 ONSC 3358. The two endorsements should be read together.
[2] In my earlier endorsement, I set forth my reasons for declining to grant, without the provision of additional required documents and information, and the correction of further identified deficiencies, a requested consent judgment approving a proposed settlement on behalf of the minor plaintiff in this litigation.
[3] The moving plaintiffs now have filed a supplementary motion record, dated January 25, 2023, which effectively has addressed those various indicated concerns to my satisfaction.
[4] Without limiting the generality of the foregoing:
a. There now has been full compliance with the requirements of Rule 7.08(4) of the Rules of Civil Procedure. In particular, the court now has been supplied with a copy of the proposed minutes of settlement, as required by Rule 7.08(4)(d).
b. The contemplated settlement mechanics, motion material and requested judgment now have been revised to make clear that, subject to the court’s approval, the entire contemplated all-inclusive settlement payment required from the defendants, (corresponding to that set forth in the proposed minutes of settlement), will be paid initially to plaintiff counsel’s law firm in trust, with that money then being disbursed by a portion being paid to plaintiff counsel’s law firm, (in satisfaction of the total fees, disbursements and taxes being requested), and the balance of the funds in trust then being paid into court for the benefit of the minor plaintiff. In the result, there is no longer any divergence between the terms of proposed settlement, the fully expanded affidavit evidence, and the material tendered to support and formally implement the contemplated settlement. Moreover, the fully expanded and revised motion record now makes it clear that the request for approval of the proposed settlement includes a request for approval of the proposed fees, disbursements and taxes to be paid to plaintiff counsel. In that regard, the material supplied indicates that the court is being asked to approve an arrangement whereby plaintiff counsel would be paid less than half of what justifiably might have been requested in the circumstances; i.e., with plaintiff counsel commendably making a significant voluntary reduction in the total fees being sought. In the circumstances, I find the proposed payment to plaintiff counsel from the contemplated settlement funds, in respect of legal fees, disbursements and applicable taxes, to be reasonable and appropriate in the circumstances.[^2]
c. The further material filed in support of the motion, (including significant and substantial further information and documentation supplied by the health care professionals who have been providing treatment and care to the minor plaintiff), greatly expands upon that contained in the initial motion record. In my view, the cumulative record is now sufficient not only to permit a meaningful court assessment of whether the proposed settlement reflects an appropriate assessment of liability and damages, but to satisfy me that the proposed settlement on behalf of the minor plaintiff is indeed reasonable and appropriate in the circumstances. Without limiting the generality of the foregoing:
i. While the material includes detailed recitation in the medical records and reports of the underlying history and incidents alleged by the plaintiffs, and those in turn would suggest a strong basis for finding the defendants liable, (e.g., insofar as they are said to have ignored, discounted or otherwise failed to take seriously very troubling indications of sexual misconduct by the other child who is said to have sexually victimized the minor plaintiff, and similarly failed to ensured vigilant adult supervision to prevent further sexual abuse of that minor plaintiff), I am mindful that such accounts inherently stem from the unchallenged outlook of the minor plaintiff and/or his parents who were working with those health care professionals. The responding defendants no doubt would have presented a different viewpoint had this litigation progressed further.
ii. The material provided makes it clear that the case involved significant causation issues, as far as troubling conditions and behaviours of the minor plaintiff are concerned; i.e., in terms of establishing the extent to which such conditions and behaviours were/are attributable to the alleged sexual abuse at the hands of the minor plaintiff’s classmate, and not some other cause. Without limiting the generality of the foregoing, while the minor plaintiff unquestionably seems to have experienced and/or exhibited varying degrees of periodic sadness, decreased energy and participation in class, loss of appetite, separation anxiety, abdominal pains, occasional incidents of self-injuring behaviour and a reticence to discuss his feelings following the alleged incidents of sexual abuse, (all of which support the diagnosis of post-traumatic stress disorder arrived upon by the relevant health care practitioners), the same reports indicate that the minor plaintiff had experienced a number of challenges before the alleged abuse occurred; challenges which included an underlying anxious temperament, a history of separation anxiety that had manifested itself in earlier school grades, (although that apparently had receded prior to the alleged assaults), a previously established tendency to experience stress somatically “throughout childhood”, (apparently including abdominal pain and functional constipation), a previously diagnosed learning disorder, and pre-existing attention issues. In the circumstances, there seems little doubt that the minor plaintiff was fragile, in the sense that his pre-existing challenges predisposed him to the possibility of significant and ongoing difficulties following the alleged incidents of abuse, and that those incidents apparently caused the child’s anxiety symptoms to become worse. However, the extent to which he became worse, and has remained or will remain worse compared to the position he would have been in had the incidents not occurred, obviously is not something capable of discrete and certain measurement. A further complicating factor is the sad reality that the minor plaintiff apparently experienced further intrusive touching, (this time at the hands of a female classmate), at his new school; a development which is not only unfortunate in its own right, but which also no doubt would have complicated the causation analysis had this matter proceeded to trial.
iii. Establishing significant damages in this case also would have been challenging, I think, having regard to the comments in the medical records and reports regarding the minor plaintiff’s treatment and recovery. In that regard, it seems reasonably clear, in my view, that contemplated evidence from the child’s treatment providers would have satisfied and cleared the applicable burden of proof required to establish a claim for future damages; e.g., insofar as they essentially opine that, given the unfortunate reality of such trauma, it is reasonably foreseeable that the child may experience a recurrence of traumatic symptoms in the future. However – and it must be emphasized that this may not bode well for significant damage recovery via litigation but is an obvious significant positive development on the whole in terms of the child’s overall welfare – the records and opinions provided also indicate that the minor plaintiff has been actively engaged in ongoing treatment and therapy, that he has responded well to that treatment and therapy, that such OHIP funded treatment and therapy is expected to remain available to him into the foreseeable future, and that his treating physicians and care providers are confident he will continue to recover from the traumatic events underlying this litigation.
iv. Having regard to all of these risks and uncertainties, in my view the costs of pursuing this litigation to trial, (in terms of the plaintiffs’ own legal fees but also their exposure to the possibility of an adverse cost award, depending on whatever settlement offers the defendants may have extended), might very well have exceeded the resulting benefits. The proposed settlement brings finality and certainty, with a reasonable net recovery for the child that will enure to his benefit as he grows older.
d. The revised settlement arrangements now being proposed no longer contemplate any portion of the minor plaintiff’s settlement being paid to his mother, instead of being paid into court. To the contrary, the revised arrangements now contemplate the entirety of the minor’s settlement payment, (after satisfaction of any court approved payment to plaintiff counsel in relation to legal fees, disbursements and applicable taxes), being paid into court; i.e., the presumptive outcome specified in Rule 7.09(1) of the Rules of Civil Procedure.
e. The motion material now formally requests an order that the court file herein be sealed, pursuant to s.137(2) of the Courts of Justice Act, supra, as a requested additional term of the judgment to be granted. For the reasons suggested in my earlier endorsement, I think such exceptional relief is justified and appropriate in the particular circumstances of this case. For present purposes, I will simply reiterate that:
i. I am very mindful of the Supreme Court of Canada’s decision in Sherman Estate v. Donovan (2021), 458 D.L.R. (4th) 451 (S.C.C.), emphasizing that such sealing orders, deviating from the “open courts” principle reflected in s.135 of the Courts of Justice Act, supra, are certainly not to be considered routine or made lightly;
ii. I nevertheless also am mindful of the Supreme Court’s recognition that there is a countervailing public character and importance to the protection of privacy interests involving protection of individuals from threats to their dignity, with “dignity” in this context referring to the right of an individual to present “core aspects” of oneself to others in a considered and controlled manner as an expression of that individual’s unique personality or personhood, and that discretionary limits on court openness can be justified where information reveals something intimate and personal about an individual, and/or that individual’s lifestyle and experiences; and
iii. in my view, sealing this particular court file, and the details of the repeated sexual abuse apparently experienced by the minor plaintiff at the hands of his male classmate, would be entirely consistent with:
the statement of public policy inherent in Parliament’s indication in s.486.4 of the Criminal Code that court orders preventing the public identification of minors are entirely appropriate when it comes to situations involving the alleged sexual abuse of minors; and
the numerous decisions of our appellate courts emphasizing the frequently serious and profound traumatizing impact of being victimized by sexual abuse as a child, which in my view effectively characterize information about such experiences as intimate and personal, such that they thereby form part of the “core aspects” of an individual which such a victim should have the right to present to others (or not) in a considered and controlled manner.
[5] Having regard to all of the above, I now have reviewed and signed the revised draft judgment that was submitted for my consideration, approving the proposed settlement on behalf of the minor plaintiff.
[6] Once formally issued and entered, copies of that judgment should be provided to counsel along with a copy of this further endorsement.
“Justice I.F. Leach”
Justice I.F. Leach
Date: February 1, 2023
[^1]: For the reasons set forth in the earlier endorsement I rendered in this litigation, (cited below), this is not the matter’s actual style of cause. Descriptive placeholder names have been substituted for actual ones, for the purpose of these endorsements, in an effort to make the minor plaintiff herein unidentifiable pending and following a formal determination that an order should be made, pursuant to s.137(2) of the Courts of Justice Act, R.S.O. 1990, c.C.43, sealing the court file herein.
[^2]: It should also be noted that the supplemental motion material makes it quite clear that the minor plaintiff’s mother and litigation guardian is fully aware of the proposed settlement, legal fees and revised settlement mechanics, and entirely supports all aspects of the proposed arrangement.