McKay v. Rowe et al, 2024 ONSC 1378

COURT FILE NOs.: CV-17-0239-00 CP and CV-17-0239-00 A2 DATE: 2024-03-06

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

ALVIN MCKAY Plaintiff

Counsel for the Plaintiff (Class Counsel): Jonathan Ptak, Adam Tanel and Jamie Shilton from Koskie Minsky LLP

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RALPH ROWE, noted in default THE SYNOD OF THE DIOCESE OF KEEWATIN SCOUTS CANADA Defendants

Counsel for the Defendant, The Synod of The Diocese of Keewatin: Dominic Clark and Tim Farrell from Blaney McMurtry LLP

Counsel for the Defendant, Scouts Canada: Alex Pettingill and Sarah Jones from Thomas Gold Pettingill LLP

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THE GENERAL SYNOD OF THE ANGLICAN CHURCH OF CANADA THE MISSIONARY SOCIETY OF THE ANGLICAN CHURCH OF CANADA Third Parties

Counsel for the Third Parties: Ted Frankel and Jeremy Martin from Cassels Brock & Blackwell

HEARD: October 27, 2023 at Thunder Bay, Ontario

Proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6

Justice B. R. Warkentin

Reasons on Motion for Settlement Approval

[1] During the 1970s and 1980s, Ralph Rowe used his position as an Anglican priest and leader with Scouts Canada to prey on and sexually abuse Indigenous boys in remote First Nations communities in Northern Ontario and Eastern Manitoba.

[2] In 1988 Ralph Rowe was arrested and convicted of 9 counts of sexual assault and one count of buggery against 8 boys. In 1994, he pled guilty to 33 charges of sexual assault against 15 boys. Between 2005 and 2012 Ralph Rowe was charged with over one hundred additional counts of sexual assault and indecent assault related offences involving dozens of boys. While not all these charges proceeded, Ralph Rowe pled guilty to 20 of the offences and of the 12 that proceeded to trial, five resulted in convictions.

[3] In the late 1990’s 68 survivors of the sexual assaults by Ralph Rowe brought civil lawsuits against the Anglican Diocese of Keewatin, Scouts Canada, and Ralph Rowe. Those civil actions were resolved with confidential out-of-court settlements.

[4] The defendants in those actions advised that the monetary values of these settlements ranged from a minimum of $15,750.00 to a maximum of $325,000. The total amount paid in settlements to the 68 complainants was $6,052,000; an average settlement payment of $89,000 per person prior to deductions for legal fees and disbursements.

[5] This litigation was commenced as a class action in May 2017, also against the Anglican Diocese of Keewatin, Scouts Canada, and Ralph Rowe. Ralph Rowe did not participate in the litigation and was noted in default. The representative plaintiff, Alvin McKay, is one of the survivors of the sexual abuse perpetrated by Ralph Rowe.

[6] On October 27, 2023, after almost six years of litigation, I approved the settlement of this class action for the total amount of $13.24 million together with a protocol for adjudicating claims, with reasons to follow.

Factual Background

[7] The defendant, the Diocese of Keewatin (“the Diocese”) is a former diocese within the Anglican Church of Canada. The Diocese encompassed several small First Nations communities in Northern Ontario and Eastern Manitoba. These communities were accessible only by air. There were no roads connecting them to each other or to other centres or cities.

[8] The defendant, Ralph Rowe (“Rowe”), was ordained as a priest of the Anglican Church in May 1975. He served as priest in the Diocese from 1975 until his arrest in 1988. During that period, Rowe lived in mission houses in various First Nation communities including Wunnumin Lake, Ontario; Big Trout Lake, Ontario; and Split Lake, Manitoba.

[9] In addition to his role as an Anglican priest, Rowe was also a leader with Scouts Canada in Wunnumin Lake and Split Lake during the 1970s and 1980s.

[10] Between 1975 and 1987, the Diocese owned a small plane that it provided to Rowe, who was also a pilot, to travel to these fly-in communities. It was while he was in those remote, and often materially deprived, Indigenous communities that Rowe exploited his position of authority and trust to perpetrate atrocious acts of sexual violence against young Indigenous boys.

[11] Rowe organized Diocesan and Scouts events such as camping trips where he targeted boys who were aged approximately 6 to 12 years old. He also committed sexual assaults during other community events organized by the church and Scouts, as well as in the mission houses themselves.

[12] The representative plaintiff in this class action, Alvin McKay, was one of these boys. A member of the Kitchenuhmaykoosib Inninuwug First Nation, located in the far northwest of Ontario, Mr. McKay was repeatedly sexually abused by Rowe. Mr. McKay was only 5 years old when the sexual abuse began, and it continued for years.

[13] As the representative plaintiff, Mr. McKay agreed to disclose the abuse he suffered in the statement of claim; swear affidavit evidence; and endure an examination for discovery, all with respect to the deeply traumatic events he experienced as a child. Mr. McKay’s willingness to stand in this role significantly contributed to the resolution of this class action. As will be discussed further in these reasons, many more victims of the sexual abuse perpetrated by Rowe are now able to claim compensation without having to make their personal experiences matters of public record.

[14] This Court certified the action as a class proceeding by order dated May 25, 2018. The class certified by the Court includes:

All persons who were alive as at May 11, 2015 who allege that they were sexually abused by Ralph Rowe in the geographic boundaries of the Anglican Diocese of Keewatin between 1975 and 1987 except the Excluded Persons (the "Sexual Assault Class Members"); and

All persons who were parents of Sexual Assault Class Members as of the date of the alleged abuse of their child, who were alive as at May 11, 2015, that have standing pursuant to s. 61(1) of the Family Law Act, R.S.O. 1990, c. F.3, or equivalent legislation in other provinces and territories (the “Family Law Claimants”).

"Excluded Persons" are all Sexual Assault Class Members and their respective Family Law Claimants who, as of May 11, 2017 had fully and finally settled their claims against the Synod of the Diocese of Keewatin and Scouts of Canada (aka Boy Scouts of Canada) and released these entities with respect to any and all alleged abuse by Ralph Rowe.

Discoveries and Mediation Attempts

[15] Throughout this litigation, the parties engaged in settlement discussions that included mediation and negotiations. Early resolution discussions and mediation were unsuccessful. The parties then exchanged hundreds of documents. Examinations for discovery were conducted over six days in 2019.

[16] After completing examinations for discovery, through continued negotiations, the defendants reached a resolution of the issue of vicarious liability. On March 25, 2021, I issued a judgment that established the common issues to be determined in the litigation and the answers to those common issues (the “Common Issues Judgment"). Had there not been consent to the Common Issues Judgment, a trial would have been necessary to establish liability for the common issues.

[17] The Common Issues Judgment held the defendants jointly and severally liable to the Class Members for sexual abuses committed by Rowe where the abuse: a) was perpetrated on property owned by the Synod of the Diocese of Keewatin or Scouts Canada; b) was perpetrated during or in connection with activities organized by or affiliated with The Synod of the Diocese of Keewatin or Scouts Canada; or, c) was perpetrated in circumstances where the Sexual Assault Class Member’s involvement with Ralph Rowe was materially influenced by the fact of Ralph Rowe being a priest of the Synod of the Diocese of Keewatin and/or a Scout leader with Scouts Canada. (para. 6(5) of the Common Issues Judgment.)

Section 25 Motion

[18] The next step in the class action required a motion pursuant to s. 25 of the Class Proceedings Act, 1992. The plaintiff commenced the s. 25 motion on February 22, 2022, to be argued in the fall of 2022. The purpose of the motion was to determine the process for Class Members to advance individual claims against the defendants.

[19] The plaintiff was seeking court approval for a draft “Individual Issues Protocol” ("IIP") through which the Class Members could advance claims without having to undergo a potentially re-traumatizing process that would have necessitated mandatory cross-examinations and the establishment of a public record of their claims within the court proceeding.

[20] The proposed claims process differed significantly from conventional litigation where individual claims are evaluated in an adversarial system. Instead, the proposed IIP sought a claims process that would be trauma-informed and would provide agency for claimants to choose a suitable claims track, including one in which they would not be cross-examined by lawyers representing adverse parties.

[21] In support of the draft IPP, the motion record included expert reports that described the challenges faced by survivors of childhood sexual assault, particularly Indigenous male survivors of childhood sexual assault, in the conventional adversarial system.

[22] The defendants opposed the draft IPP and responded with their own expert evidence. Without agreement, Class Counsel faced significant risks in this phase of the litigation because of unconventional method proposed for settling claims. Even if successful on the s. 25 motion, the door would have been open for an appeal due to the unique aspects of the draft IPP that would have significantly lengthened the litigation.

[23] In August 2022, the s. 25 motion was adjourned to permit a final attempt at mediation and negotiation. The parties were motivated, in part, to attempt a resolution after a settlement agreement was reached and later approved by the Nova Scotia Supreme Court in Gallant v. The Roman Catholic Episcopal Corporation of Halifax et al., 2022 NSSC 347 ("Gallant"). In Gallant the representative plaintiff was also represented by Koskie Minsky LLP as Class Counsel and the defence team involved many of the same insurers and counsel as in this case.

[24] Through these further negotiations, the individual compensation amount, and the aggregate value of the settlement were agreed to on February 14, 2023. However, Class Counsel was determined to reach agreement on their draft IPP in the face of resistance from the defendants. Without a claims process that would be trauma-informed and would provide agency for claimants to choose a track that would be suitable for each individual claimant, there could be no negotiated resolution.

[25] The parties agreed to one further attempt to resolve the claims process and attended a third mediation in 2023 with the Honourable Todd Archibald, a retired Superior Court judge and expert in class actions. It was through this mediation that the parties were able to reach a final agreement on all the issues. Mr. Archibald summarized the mediation as "extremely hard fought" and culminating in a resolution that he described as "principled", "exceptional" and "the very best possible resolution in the circumstances”.

[26] On August 7, 2023, the final terms of the Settlement Agreement (the “Settlement”) were reached by the parties. Immediately thereafter, the Notice Plan that had been approved by the Court was disseminated among all the Class Members. This included providing information about the legal fees that would be requested. Class Members were offered an opportunity to ask question and to object to the Settlement. No objections were received.

Key Terms of the Settlement

[27] The key terms of the Settlement and claims process include: a) A settlement fund of $13.25 million; b) Apologies by the Anglican Church of Canada and Scouts Canada; c) Survivors may choose between two different claims processes: i) A simplified claims process, in which the Defendants have no rights of cross-examination, that may pay compensation up to $140,000 (the "Schedule A" process); and ii) A more rigorous claims process for certain claims, in which the Defendants may elect to cross-examine claimants, that may pay compensation of up to $350,000, (the "Schedule B" process); d) Claimants will be presumed to be acting honestly and in good faith absent reasonable grounds to the contrary; e) At the outset, claimants may seek up to $1,500 from the settlement fund for payment of the costs of any counselling required due to re-traumatization or anxiety caused by participation in the claims process (which amount will either be deducted from the claimant's award, if the claim is approved, or will simply be deducted from the aggregate settlement fund if the claim is denied); f) Cost of notice to the Class and administration of the claims process are to be paid from the settlement fund; g) If there are insufficient funds to pay the full grid amounts of all approved claims, the amounts payable will be adjusted on a pro rata basis; h) The claims process is confidential (though Class Members are not themselves bound by any confidentiality provisions); i) Class Members will have fifteen months to submit their claims, and the Administrator will have discretion to extend time for an additional three months; j) The parents of Class Members who make claims under the Settlement will be eligible for up to $5,000 in compensation, reflecting their derivative claims under the Family Law Act; and k) Persons representing estates of deceased Class Members will be able to make claims pursuant to a simplified estates protocol which will not require a probate application to the Court absent a dispute among potential beneficiaries.

Court Approval Required

[28] The Class Proceedings Act, 1992 requires court approval of a settlement of a class proceeding. (Amendments to the Class Proceedings Act, 1992 came into effect in October 2020, however the previous version of the Act that was in existence in May 2017 applied to this action.)

[29] The jurisprudence in class proceedings provides a non-exhaustive list of factors that courts are to consider in evaluating any proposed settlement. (Parsons v. Canadian Red Cross Society, [1999] O.J. No. 3572 (Sup.Ct.) at para. 71; Redublo v. 8262900 Canada Inc. (c.o.b. CaraPartners), 2002 ONSC 1398 at paras. 56-57). These factors include: a) the likelihood of recovery or success; b) the amount and nature of discovery evidence; c) the settlement terms and conditions; d) the recommendation and experience of counsel involved; e) future expense and likely duration of litigation; f) recommendation of neutral parties, if any; g) the number and nature of objections; h) presence of good faith and the absence of collusion; i) degree and nature of communications by counsel and plaintiff with class members; j) the dynamics of, and positions taken during, the negotiations; and k) the risks of not unconditionally approving the settlement.

[30] As part of the consideration, the court must find that the Settlement is fair, reasonable, and in the best interests of the class members. A range of acceptable outcomes is permissible, depending upon the subject matter of the litigation and the nature of damages for which the settlement is intended to provide compensation. (McKillop and Bechard v. HMQ, 2014 ONSC 1282, at para. 23).

[31] To determine whether the Settlement is reasonable, "[t]he supervising court must compare the settlement with what would probably be achieved at trial, discounting for any defences, legal or evidentiary hurdles or other risks that would have to be confronted and overcome if the matter were to proceed to trial." (Brown v. Canada (Attorney General), 2018 ONSC 3429 at para. 12). The court must also examine the fairness and reasonableness of the scheme of distribution under the settlement. (Persaud v. Talon International Inc., 2022 ONSC 6359 at para. 78).

[32] When the class proceeding involves historical claims, the benefits of timely settlement are a significant factor for the Court’s consideration:

“There is no doubt that without a settlement, the proceedings will be protracted, the outcome uncertain and (even if successful) the class members will not receive compensation for years. There is no assurance that at the end of this process they will receive any more than they will get under these Settlement Agreements. Given the advanced age of class members and the historical nature of this litigation, the benefits of an immediate and certain settlement cannot be overstated.” (McKillop at para. 28).

[33] The factors that warrant most consideration in evaluating the Settlement in this case are: the likelihood of success, the terms of the settlement, the litigation risks, and the potential for future delays if the litigation is required to continue.

Likelihood of Success and Litigation Risk

[34] The parties demonstrated a willingness to reach a resolution in this litigation from the outset. They engaged in mediation on two occasions early in the process, however, that mediation was unsuccessful. The issues were resolved only after the plaintiff advanced the litigation through each step. For example, the answers to the Common Issues were resolved on consent, but only after the exchange of documents and completion of many days of examinations for discovery.

[35] The likelihood of success was not whether the class action would succeed in some fashion after a trial of the common issues. Class Counsel was seeking a significant financial award together with a protocol for distributing the award that was unique. These were risks that Class Counsel undertook in order to achieve the best and most thoughtful outcome for the claimants.

[36] The results achieved must be measured against the risk posed. The greatest risk was whether the court would accept the draft IIP in the s. 25 motion. Class Counsel faced considerable uncertainty in that motion because the draft IIP departed significantly from the structure of conventional class proceeding settlements and judgments.

[37] The protocol established in the draft IPP was a critical component of the claims against the defendants. It was designed to provide claimants with the agency to choose a claims track that was suitable based upon their individual needs and circumstances.

[38] The defendants opposed those aspects of the draft IIP that fell outside of conventional civil litigation, particularly how the individual claims would be evaluated and required that those issues be resolved by the court.

[39] In the face of that opposition, Class Counsel obtained a date for and served motion material for the s. 25 motion. Class Counsel was prepared to assume the associated risks, including the possibility of losing the motion or if successful, an appeal with all the attendant delays.

Terms of the Settlement and Potential for Future Delays

[40] Before the hearing of the s. 25 motion (scheduled for the fall of 2022), a settlement was reached in a similar class action in Nova Scotia (Gallant). The Gallant case was also a historic sexual abuse case from the 1950’s and 60’s that involved sexual abuse on children by priests from the Roman Catholic Church.

[41] As mentioned above, the Class Counsel and much of the defence team in the Gallant case were the same or similar in this class action. It was a combination of the resolution of Gallant and the risks of the s. 25 motion (that now included the possibility of partial or complete success on that motion due to the settlement terms in Gallant), that motivated the parties to return to mediation where the Settlement was reached.

[42] The Settlement established two different claims processes: Schedule A and Schedule B.

[43] The Schedule A process sets out four general categories of sexual assault and specifies a level of compensation for each category. Claimants who experienced assaults in more than one category are entitled to the higher category amount. Claimants are presumed to be acting honestly and in good faith. Most particularly for Schedule A claimants, they are not required to demonstrate specific harm arising from the assaults. The harm is assumed.

[44] This low-barrier Schedule A claims process will be administered by trauma-informed psychologists rather than the courts. By electing this claims track, claimants will be eligible for compensation up to $140,000.00.

[45] Claimants choosing this track will only need to provide available details of the abuse suffered on their claim form. There is no requirement for a commissioned affidavit. Claims are then referred to the Administrator for processing based only on the paper record. If there are concerns, the claim could be referred to an independent Adjudicator who will hold an oral meeting with the claimant regarding details of their claim. This meeting will be conducted in a trauma-informed manner that includes a support person if the claimant wishes. Defence counsel are only permitted to attend if the claimant asks a member of Class Counsel to be present. Neither counsel is permitted to intervene in the meeting.

[46] Claimants may also opt to claim additional compensation through the Schedule B process for the “harms and effects” of the sexual abuse that are defined in Levels A and B of Schedule B to the Settlement. By electing to proceed through the Schedule B process a claimant will be entitled up to an additional $210,000.00, with a maximum award of compensation of $350,000.00. The Schedule B process provides a more traditional litigation process, under which the claimant must provide documentary evidence to establish their claim and participate in an adjudicative process, unless the parties mutually agree to dispense with some or all of that process.

[47] The optional Schedule B process provides class members with autonomy and agency in deciding how to advance their claims.

[48] It is of note that the Settlement contains improvements over the claims process in the Gallant settlement. The improvements include: a) the option of seeking up to $140,000 through the simplified Schedule A process, in which the Defendants have no rights of cross-examination (whereas the defendants' counsel can conduct an "oral interview" of the Schedule A claimants under the Gallant Settlement); b) the elimination of the requirement for a commissioned affidavit, as is required under the Gallant Settlement, in favour of a requirement for a witnessed declaration, which should improve the accessibility of the claims process under the Settlement. There is a broad list of individuals who can witness the document, including health professionals, elders, and others; and c) the ability to access up to $1500 in funds to pay the costs of counselling required as a result of anxiety or re-traumatization caused by participation in the claims process.

[49] The importance of the Settlement in this class action cannot be emphasized enough. Class members will now have immediate access to the settlement funds. The class members are vulnerable survivors of horrific child sexual abuse. Many of them live in difficult conditions in remote communities and many died prior to the commencement of this litigation, some through suicide. Absent a settlement with the option for a low barrier claims process, there was a risk that many class members would not participate because of the likelihood of being re-traumatized.

[50] Without the Settlement, the litigation would have dragged on leaving many class members unable to obtain compensation during their lifetimes. Class Counsel noted that several class members who were known at the outset of the proceeding in 2017 have since passed away.

[51] When reviewing other class actions that proceeded without a settlement, those actions often lasted years longer before any individual claims could even be initiated. Once initiated, the individual claims themselves took additional months and sometimes years to resolve.

[52] Some class actions that settled through negotiation became unwieldy because of the onerous terms to be met before settlement funds were released to claimants. (For example, Richard v. British Columbia, 2015 BCSC 265.)

[53] Finally, the compensation available to claimants in the Settlement compares favourably with, and generally exceeds, the compensation that was available in other similar types of compensation awards in class actions involving historic sexual abuse in both individual civil sexual assault litigation and class actions. (A comparison of maximum compensation in abuse class actions was provided in Schedule "D" to the factum filed by plaintiff’s counsel on this motion.)

Approval of The Settlement Agreement

[54] In addition to the factors set out above, the Settlement sets a precedent for future claims of this nature to benefit those who have suffered abuses by individuals in authority and by institutional failures to protect vulnerable children in their care or under their control.

[55] The departure from the traditional adversarial process to a trauma-informed process that provides agency to claimants ensures that they will be compensated for the abuses suffered at the hands of Rowe. The financial compensation, however, is only part of what makes this approval of the Settlement necessary.

[56] Claimants do not have to “prove” they were abused by Rowe; they need only come forward and inform the Administrator that they were a victim. Claimants are presumed to be acting honestly and in good faith.

[57] In addition to the financial compensation, claimants will receive personalized apologies from the Anglican Church and Scouts Canada as well as assistance in obtaining therapeutic support as they progress through the claims process that will be financed from the settlement fund. Legal assistance will be provided by Class Counsel at no additional cost to the claimants.

Additional Settlement Terms

[58] The Settlement Administrator is RicePoint Administration (RicePoint). RicePoint is the same administrator as in the Gallant settlement. They are highly regarded as administrators of class actions and abuse settlement claims, with more than 25 years’ experience.

[59] Legal assistance will be provided to claimants at no charge. Claimants will be assisted with completing their claims and where required, to obtain medical and other records as well as representation in any examinations and adjudication.

Approval of Legal Fees

[60] When undertaking this litigation, Class Counsel and the plaintiff completed a retainer agreement that provided payment to Class Counsel on a settlement or judgment of their disbursements together with 33.3 % of the result achieved. Members of the Class, most if not all who are known to Class Counsel are aware of this agreement. This retainer is consistent with other retainer agreements that have been approved by the court in similar cases.

[61] No objections were filed regarding the Settlement or the legal fees.

[62] Notwithstanding the terms of the retainer agreement, Class Counsel has lowered their fee to 28.5% of the settlement fund and seek approval of a fee in the amount of $3,776,250 plus HST. This is a voluntary reduction by Class Counsel and does not reflect a reduction of the risks, time involved, complexities and result achieved. A claim for 33.3% as per the retainer agreement was open to Class Counsel.

[63] Having considered the complexity of this class action, the results achieved, and the time and effort invested by Class Counsel in reaching the Settlement as well as their commitment to continuing to represent claimants at no charge during the claims process, I find the requested fees to be fair and reasonable.

Honourarium

[64] Class Counsel sought an honourarium of $15,000 for Alvin McKay, the representative plaintiff, to be paid from the settlement funds.

[65] It is apparent from the material before the court that Mr. McKay was integral to the commencement of this action and to the ongoing litigation.

[66] Mr. McKay not only provided information for the investigation and drafting of the Statement of Claim; he assisted in the preparation of materials for the certification motion and swore an affidavit in support of that motion. In addition, Mr. McKay underwent a difficult examination for discovery that he found invasive and re-traumatizing by having to recount in detail the sexual abuses he suffered at the hands of Rowe.

[67] Mr. McKay’s experience in the discovery process was one of the catalysts for Class Counsel seeking a resolution that was trauma-informed and culturally sensitive instead of accepting a resolution that modeled conventional settlements in an adversarial legal system.

[68] Mr. McKay’s participation is deserving not only of an honourarium because of his contribution to this litigation, but also because of his courage in stepping forward to hold child sexual abusers and the institutions that enabled that abuse, to account. His participation also deserves recognition by and the gratitude of this court.

[69] Mr. McKay, by taking on the role of representative plaintiff, has also ensured that the broader public has been informed of the horrific abuses that were inflicted on vulnerable children in remote Northern communities by Rowe under the guise and authority of an Anglican priest and a Scout leader.

[70] Mr. McKay also deserves the appreciation of those whose who will benefit from this Settlement and the thoughtful process in place to adjudicate those claims. His bravery and perseverance will serve as a role model for other victims and survivors of sexual abuse.

[71] The honourarium is approved.

Conclusion and Final Words

[72] For the reasons outlined above, the Settlement is approved by this court.

[73] I applaud Class Counsel for insisting on a resolution that includes a trauma-informed and culturally sensitive method by which claimants will be compensated. I also commend the defendants, defence counsel and the insurers involved, for agreeing to continue with negotiations until the Settlement on these terms was reached.

[74] The perseverance of Class Counsel in pursuing the compensation protocol, even after the quantum of the compensation was resolved, demonstrates that a financial award may be of limited value if those entitled to compensation are re-traumatized in the process, or they choose not to seek compensation at all.

[75] The Settlement terms achieved in this class action are historic and will serve as a precedent for the thoughtful resolution of future claims of historic sexual assault and institutional liability for abuses perpetrated on vulnerable youth and individuals.

“Original signed by” ___ The Hon. Justice B.R. Warkentin

Released: March 6, 2024