Jane Doe (#7), (discontinued), John Doe (#10) v. John Doe (#11), 2019 NLSC 170

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Jane Doe (#7) v. Her Majesty in Right of Newfoundland and Labrador , 2019 NLSC 170 Date : October 2, 2019 Docket : 201701G2568 Between: Jane Doe (#7), (discontinued), John Doe (#10) and John Doe (#11) PlaintiffS And: Her Majesty in Right of Newfoundland and Labrador Defendant Before: Justice Rosalie McGrath Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: September 30, 2019

Summary: The Court granted a class action certification order in respect of claims for sexual battery and/or sexual misconduct suffered by class members while they were minors and resident at Institutions operated by the Defendant. The common issues raised related to claims of institutional negligence, breach of fiduciary duty and fraudulent concealment. Appearances: Lynn M. Moore, Andrew J. Martin and James R.A. Locke Appearing on behalf of the Plaintiffs

David Rodgers and H. Michael Rosenberg Appearing on behalf of the Defendant Authorities Cited: CASES CONSIDERED: Thorne v. College of the North Atlantic , 2018 NLCA 33 ; Hollick v. Metropolitan Toronto (Municipality) , 2001 SCC 68 ; Rumley v. British Columbia , 2001 SCC 69 , aff’g 1999 BCCA 689 ; L. (T.) v. Alberta (Director of Child Welfare), 2008 ABQB 114 ; Western Canadian Shopping Centers Inc. v. Dutton , 2001 SCC 46 ; Anderson v. Canada , 2011 NLCA 82 STATUTES CONSIDERED: Class Actions Act , S.N.L. 2001, c. C-18.1 ; Proceedings Against the Crown Act , R.S.N.L. 1990, c.

P-26 ; Class Proceedings Act , R.S.B.C. 1996, c. 50 REASONS FOR JUDGMENT McGrath, J. : INTRODUCTION [ 1 ] The Plaintiffs applied for a certification order pursuant to the Class Actions Act , S.N.L. 2001, c. C-18.1 in respect of common issues relating to claims of institutional negligence, breach of fiduciary duty and fraudulent concealment. The proposed class was comprised of former residents who attended educational institutions while minors and who suffered sexual battery and/or sexual misconduct by a delegate of the Defendant or a resident of one of the Institutions.

While the Defendant operated these institutions for several decades, the proposed class was limited to those who were residents in a specified sixteen-year time period. [ 2 ] While there is no agreement on liability, the parties are in agreement that the application for certification meets the relevant criteria under the Class Actions Act . At the conclusion of the hearing, I granted the requested certification order, subject to modifications made during the course of the hearing.

While I gave oral reasons indicating I was satisfied the test for certification had been met, at the request of counsel, I agreed to follow up with written reasons. [ 3 ] In respect of these written reasons, I would like to thank all counsel for providing me with a comprehensive Joint Certification Brief. I also express my gratitude to counsel for the Plaintiffs for providing me a thorough Certification Record. [ 4 ] By way of background, as case management judge, I previously gave the parties leave to bring on this certification application before a defence was filed.

While the application was originally set for five days, it was reduced to one day as it was felt agreement would be reached on the certification. [ 5 ] By the time the application was filed, it was evident that the Defendant did not oppose a certification order. However, as the judge hearing this application for certification, it is nevertheless incumbent upon me to satisfy myself that the certification criteria have been met. I therefore fully and thoroughly reviewed the pleadings, record and brief in this regard. [ 6 ] As referenced in the joint brief, certification is a procedural issue.

This Court is required to certify the action as a class proceeding when the following five-part test set out in section 5(1) of the Class Actions Act has been met:

a) the pleadings disclose a cause of action;

b) there is an identifiable class of two or more persons;

c) the claims of the class members raise a common issue, whether or not the common issue is the dominant issue;

d) a class action is the preferable procedure to resolve the common issues of the class; and

e) there is a person who

i) is able to fairly and adequately represent the interests of the class, ii) has produced a plan for the action that sets out a workable method of advancing the action on behalf of the class and of notifying class members of the action, and iii) does not have, on the common issues, an interest that is in conflict with the interests of the other class members.

[ 7 ] The first criterion involves an examination of the claims as pleaded while the second to fifth require me to consider whether there is some basis in fact to satisfy these criteria. Do the pleadings disclose a cause of action? [ 8 ] With respect to the requirement that the pleadings disclose a cause of action, this criterion is subject to the same low threshold that governs an application to strike a pleading. As noted by Hoegg, J.A. in Thorne v.

College of the North Atlantic , 2018 NLCA 33 , at paragraph 58 , the question to be answered is whether it is plain and obvious that a claim cannot succeed. [ 9 ] In this case, the causes of action plead by the Plaintiffs are negligence, breach of fiduciary duty and fraudulent concealment. As referenced at paragraph 56 of Thorne , in order to establish whether the pleadings disclose those causes of action, I must consider whether the Amended Statement of Claim asserts facts which, if proved, entitle, or potentially entitle, the Plaintiffs to a remedy at law.

This involves a review of the pleadings only. [ 10 ] Further, as noted by the Newfoundland and Labrador Court of Appeal at paragraph 58 of Thorne and by the Supreme Court of Canada, at paragraph 25 of Hollick v. Metropolitan Toronto (Municipality) , 2001 SCC 68 , no evidence is admissible for the purposes of determining the section 5(1) (

a) criterion. [ 11 ] Based upon my review of the Amended Statement of Claim, I am satisfied that the Plaintiffs have pleaded facts which, if proved, could amount to negligence, breach of fiduciary duty and/or fraudulent concealment, thereby entitling them to damages. [ 12 ] I note that this claim is quite similar to the claims in respect of which common issues were certified in the case of Rumley v. British Columbia , 2001 SCC 69 , aff’g 1999 BCCA 689 . In that case, the British Columbia Court of Appeal reversed the decision of the chambers’ judge denying certification.

Certification was also granted based on somewhat similar claims in the Alberta Court of Queen’s Bench decision in L. (T.) v. Alberta (Director of Child Welfare), 2008 ABQB 114 . [ 13 ] In making this finding, I explicitly note that the certification application does not ask that the issues raised in the Amended Statement of Claim relating to denial of access to a proper education be certified as common issues. It is therefore not necessary to consider these causes of action in this application.

As noted by MacKenzie, J.A. in Rumley , any attempt to litigate that type of issue in the same class proceedings as sexual abuse claims could complicate the proceedings immensely. As such, the Plaintiffs have quite properly limited the common issues to those relating to sexual battery and/or sexual misconduct. Is there an identifiable class? [ 14 ] The second criterion is whether there is an identifiable class. Section 5(1) (

b) of the Class Actions Act requires that there be a class of two or more persons. Further, the class must be defined by reference to objective criteria. [ 15 ] As noted in Western Canadian Shopping Centers Inc. v. Dutton , 2001 SCC 46 , a decision of the Supreme Court of Canada, it is not necessary at this certification stage to identify every class member. However, the certification judge must be satisfied that the class definition bears a rational relationship to the common issues.

Membership should also be bounded rather than unlimited. [ 16 ] The Plaintiff proposes the following identification for Class Members: All former residents, save Excluded Persons, who suffered sexual battery and/or other sexual misconduct by a Delegate or a fellow resident of the Institutions, while residing at any of the Institutions between May 1, 1973 and June 28, 1989 (the “Class Period”), inclusive. “Delegates” are defined as the servants, contractors, agents, officers, volunteers and employees of the Defendant and the operators, managers, administrators, teachers, and staff of the Institutions. “Excluded Persons” are defined as:

a) all persons who, as of the date of this Order, have executed a release to the benefit of the Defendant for the claims asserted in this class proceeding;

b) all persons who, as of the date of this Order, do not make their primary residence in the Province of Newfoundland and Labrador, and who do not opt into this class proceeding in the manner specified in this Order; and

c) all persons who died prior to the date of any judgment or settlement approval in this action. “Institutions” are defined as the following facilities, which housed minors and were operated by the Defendant in the Province of Newfoundland and Labrador during some or all of the Class Period:

a) the facility known as the “Whitbourne Training School” and also known as, inter alia , the “Whitbourne Youth Center”, “the Boys’ Home”, “the Boys’ Home and Training School”, and “the Whitbourne School for Boys” and which was, at different times, located at the town of Whitbourne in the Province of Newfoundland and Labrador;

b) the facility known as “the Pleasantville Training School”, and also known as, inter alia , “the Girl’s Home”, “the Girls Home and Training School”, and “the Pleasantville School for Girls” and which was, at different times, located at the town of Torbay and the City of St. John’s, in the Province of Newfoundland and Labrador; and

c) the facility known as the “St. John’s Youth Centre”, which was located in the City of St. John’s, in the Province of Newfoundland and Labrador. [ 17 ] I am satisfied that this class definition uses objective criteria to determine membership and is rationally connected to the

common issues. Further, it is also neither overbroad nor under-inclusive. [ 18 ] While I recognize that the Class Period covers an approximately 16-year timeframe, from the coming into force of the Proceedings Against the Crown Act , R.S.N.L. 1990, c. P-26 on May 1, 1973 until commencement of the Royal Commission of Inquiry into child abuse allegations at the Mount Cashel Orphanage on June 28, 1989, such a lengthy period is not a bar to certifying an identifiable class.

In particular, I note that, in Rumley , the class was defined as persons who had been students at a particular school between 1950 and 1992, a period of forty-two years. [ 19 ] Further, Class membership in this case is limited to residents of the Institutions. The Defendant would have records to identify those who attended during that timeframe.

The Class is further limited to only those residents who suffered sexual battery and/or other sexual misconduct. [ 20 ] The Plaintiffs have also provided for sub-classes to be composed of residents of Newfoundland and Labrador who must opt out if they do not wish to be a Class Member, as well as residents of other Canadian jurisdictions who may choose to opt in to become Class Members, as required by section 7(2) of the Class Actions Act . [ 21 ] Overall, in reviewing the Certification Record filed by the Plaintiffs, I am satisfied that there is some basis in fact to find that the Class as defined is an identifiable class.

As such, the second certification criterion is satisfied. Do the claims of the Class Members raise common issues? [ 22 ] The third criterion is whether the claims of the Class Members raise common issues. The Plaintiffs put forward the following as the common issues:

a) What procedures or training were in place for staff at the Institutions respecting recognition, discovery, prevention, reporting or otherwise dealing with sexual misconduct? Were these procedures or training adequate, reasonable, and in accord with applicable standards at the relevant times?

b) What procedures or training were in place for residents at the Institutions respecting recognition, discovery, prevention, reporting or otherwise dealing with sexual misconduct? Were these procedures or training adequate, reasonable, and in accord with applicable standards at the relevant times?

c) If the procedures or training identified in questions (

a) or (

b) were not adequate, reasonable, and in accord with applicable standards at the relevant times, did this constitute a breach by the Defendant of a duty of care or a fiduciary duty owed to the Class?; and

d) Did the Defendant fraudulently conceal knowledge that residents of the Institutions suffered sexual battery and/or other sexual misconduct by a Delegate or a fellow resident of the Institutions between May 1, 1973 and June 28, 1989? [ 23 ] It is not necessary for me to determine, at this certification application stage, that the claims of all Class Members can be established by proving the claims of the proposed representative Plaintiffs.

Nor does the evidence need to establish that the proposed common issues are, in fact, common to all Class Members. [ 24 ] As noted by MacKenzie, J.A. in Rumley , at paragraphs 21 and 22 , in a case involving claims of sexual abuse at institutions over a lengthy number of years, it may be conceivable that liability might be differentiated in ways such as applying different standards over different time periods or applying different standards with respect to whether abuse was inflicted by staff or by other students. However, such potential complications are not insurmountable.

As well, there will no doubt be individualized processes and assessments of damages. That is also not a reason to refuse certification. [ 25 ] MacKenzie, J.A. noted that, once a breach of the standard of care during the period relevant to a particular student is established, that individual class member must also prove that he or she suffered sexual harm. Essentially, the causation issue would be whether the harm would reasonably have been prevented if the school had maintained reasonable measures to prevent sexual abuse. That should not present many individual issues.

The same can be said in respect of the individualized processes for this proposed class action. [ 26 ] A similar finding was made in the Alberta Court of Queen’s Bench decision in L. (T.) where negligence, breach of fiduciary duty and fraudulent concealment were certified as common issues. [ 27 ] Based upon my review of the Certification Record, I find there is a basis in the evidence to support a finding that the claims of the Class Members raise common issues relating the Defendant’s alleged systemic negligence, breach of fiduciary duty and fraudulent concealment.

In particular, that evidence comes from the affidavits of all three proposed representative Plaintiffs, historical documents relating to the operation of the Institutions, and the discovery evidence of a former employee of the Defendant’s Department of Child Welfare and Youth Corrections. Is a class action the preferable procedure? [ 28 ] The fourth criterion is whether a class action is the preferable procedure for the fair and efficient resolution of the proposed common issues. Section 5(2) of the Class Actions Act states that the Court may consider all relevant matters in determining this criterion.

However, it specifies five specific matters that the Court may consider, namely:

a) Whether questions of fact or law common to the members of the Class predominate over questions affecting only individual members;

b) Whether a significant number of the members of the Class have a valid interest in individually controlling the prosecution of separate actions;

c) Whether the class action would involve claims that are, or have been, the subject of another action;

d) Whether other means of resolving the claims are less practical or less efficient; and

e) Whether the administration of the class action would create greater difficulties than those likely to be experienced if relief were sought by other means. [ 29 ] As previously noted, other courts have found the use of class proceedings preferable in cases alleging abuse of young persons . It is notable that in Rumley , the Class Proceedings Act , R.S.B.C. 1996, c. 50 under consideration listed five factors that were almost identical to those contained in the Newfoundland and Labrador Class Actions Act .

Further, the Newfoundland and Labrador Court of Appeal also endorsed the certification of a class action in the Labrador residential schools case of Anderson v. Canada , 2011 NLCA 82 . [ 30 ] In Rumley , the Supreme Court of Canada noted that there would be some differences in the claims as between class members but, as the Plaintiffs limited their claims to systemic negligence and breach of fiduciary duty, the central issues in the proceeding would be the nature of the duty owed by the Defendant to the class members and whether that duty was breached.

Those issues were amenable to resolution in a class proceeding and predominated over any questions affecting only individual members. [ 31 ] With respect to having a valid interest in individually controlling the prosecution of separate actions, it is notable that no Class Member would be able to prevail without making an individual showing of injury and causation. As such, the Class Members would not be forced into taking a passive role.

There is also no evidence to suggest that any Class Members would prefer to proceed individually. [ 32 ] With respect to the fourth factor, as in Rumley , the issues in this case relate to policy and administration of the Institutions, as well as qualification and training of staff, dormitory conditions and so on. These elements are likely to be applicable to the claims of all Class Members. Further, the overall history and evolution of the schools is important background and it would be needlessly expensive to require proof in separate cases.

Counsel for the proposed representative Plaintiffs have already gone to the expense of engaging a historian and have carried out significant documentary review and research. [ 33 ] Additional expert witnesses will also likely be required. These expenses could impede the ability of some Class Members to prosecute their claims in the absence of a class action.

The representative Plaintiffs, in particular, have indicated that they would not be able to afford to prosecute individual actions. [ 34 ] With respect to the final factor under this fourth criterion, I find that allowing the claim to proceed as a class action would certainly mitigate difficulties that could be faced by Class Members. The Plaintiffs will benefit from the use of a professional class action administrator. The Certification Record discloses that documentary evidence will likely be extensive and time-consuming to collect and review.

Communicating and disseminating information to a group through an administrator would be an efficient means of so doing. [ 35 ] I am therefore satisfied that there is some basis in fact to find that the fourth certification criterion has been satisfied. Are there adequate representative Plaintiffs? [ 36 ] The final criterion is whether or not there are adequate proposed representative Plaintiffs. [ 37 ] The first proposed representative Plaintiff is Jane Doe (#7).

Her affidavit indicates that she was a resident of the Girls’ Home and Training School at Pleasantville in 1979 where she was sexually battered by Delegates of the Defendant. [ 38 ] The second proposed representative Plaintiff is John Doe (#10) who provided affidavit evidence that he was a resident at the Whitbourne Training School for Boys in 1974/75 where he was sexually battered by Delegates of the Defendant. [ 39 ] The final proposed representative Plaintiff is John Doe (#11). He provided affidavit evidence that he was a resident of the Boys’ Home and Training School at Whitbourne in 1979.

While resident there, he was sexually battered by a visitor to that Institution, whose authority over the Plaintiff was presumably authorized by the Defendant. [ 40 ] The proposed representative Plaintiffs therefore represent a cross-section of persons resident in both boys’ and girls’ schools.

Two allege they were sexually battered by staff while one alleges he was sexually battered by a visitor who presumably was given authority over the Plaintiff by the Defendant. [ 41 ] Each proposed representative Plaintiff has provided affidavit evidence confirming that he or she is prepared to vigorously prosecute the proceeding on their own behalf and on behalf of the Class. They have played an active role in prosecuting this action to date.

They have also indicated a willingness and commitment to maintain connections with other potential Class Members by regularly monitoring email addresses that will allow them to communicate with other Class Members while maintaining their anonymity. [ 42 ] There is nothing to indicate that any conflict of interest exists, or could foreseeably arise, between the proposed representative Plaintiffs and other Class Members.

Finally, the Plaintiffs have developed a litigation plan evidencing a workable method of advancing the proceeding on behalf of Class Members. [ 43 ] As noted by the Alberta Court of Queen’s Bench in L. (T.) , at paragraph 109, it is normal for a litigation plan to be somewhat fluid. However, it must have some substance to it. The essential elements of a litigation plan were noted at paragraph 109, as follows: (

i) the steps that are going to be taken to identify necessary witnesses and to locate them and gather their evidence; (ii) the collection of relevant documents from members of the class as well as others;

(iii) the exchange and management of documents produced by all parties; (iv) ongoing reporting to the class; (

v) mechanisms for responding to inquiries from class members; (vi) whether the discovery of individual class members is likely and, if so, the intended process for conducting those discoveries. [ 44 ] I have reviewed the Plaintiffs’ proposed litigation plan and the affidavit of Paul Battaglia, the President and Founder of Trilogy Class Action Services, the proposed Class Action Administrator. I am satisfied that the litigation plan provides sufficient detail to assure me that steps will be taken to identify necessary witnesses as well as gather their evidence.

It also adequately details how the Plaintiffs will collect relevant documents from Class Members and provide for the exchange and management of documents produced by all parties. It also provides for ongoing reporting to the Class Members as well as mechanisms for responding to enquiries from Class Members. [ 45 ] While it does not deal with whether or how Class Members will be discovered, at this point in time the number and location of Class Members is not known. It is also not known whether discovery examinations will in fact be required.

However, the litigation plan does provide for the first case management of the action to be fixed before the case management judge within 60 days of the Certification Order. The purpose of this is to approve the production and examination timetable to be agreed between the parties and to set any deadlines for the hearing of applications arising therefrom. I expect all counsel will work cooperatively on these issues. There is nothing in the litigation to date that causes me to doubt that. [ 46 ] Again, I expressly recognize that this litigation plan may grow and evolve as the case progresses.

This is specifically contemplated under paragraph 31 of the litigation plan. [ 47 ] I did, however, express to the parties at the certification hearing that I had a concern with the draft order that was presented to me. That concern related to the public identification of Class Members who may opt in or opt out of the class action.

In particular, the draft order provided for the Class Administrator to serve on the Defendant and file with the Court, an affidavit listing the names and addresses of all persons who have opted out of, or opted in to, the Class Action. [ 48 ] The disclosure of this information is of concern as this case involves claims of sexual abuse allegedly committed against Class Members while they were minors. It is notable that all three representative Plaintiffs had, quite appropriately, previously filed originating applications asking for the use of a pseudonym before they commenced this action.

Those Orders were granted. It is highly likely that other Class Members would also request such anonymity. In fact, if that issue was not addressed, it may have a chilling effect on the willingness of potential Class Members to come forward. [ 49 ] I therefore asked counsel to revise the draft order to reflect that issue at this certification stage. The revised order provides for the names and addresses of those who opted in or opted out to be provided to the Defendant who will maintain its confidentiality.

That information will also be filed with the Court in a sealed envelope. [ 50 ] I also asked counsel to revise the draft order to ensure Trilogy Class Action Services maintains the confidentiality of potential Class Members. In particular, reference was made to a toll free support line being set up to provide assistance to Class Members, family, guardians, or agency staff, or other persons who make enquiries on their behalf or on behalf of Class Members.

Given the highly personal and confidential nature of these claims, in my view, it was necessary to include in the order a requirement that the Class Administrator not disclose the identity of any class members or any person who chooses to opt in or out without the express written consent of that person or as otherwise provided by the certification order. [ 51 ] While these provisions are designed to ensure the public identification of Class Members does not discourage potential Class Members from coming forward, I noted that thought also needs to be given to dealing with any future requests relating to publication of information that may identify Class Members.

It may be that some Class Members wish to have their names public while others would not continue with the litigation for fear they would suffer significant emotional harm if their name was disclosed. Accordingly, there needed to be a consideration of how to deal with requests for anonymity while still respecting the open court principle. [ 52 ] The litigation plan was therefore revised to specifically note that any applications relating to publication bans will be discussed and scheduled at case management.

Again, this recognizes there is fluidity to the plan as the case progresses. conclusion [ 53 ] As all five criterion for certification have been met, an order was granted certifying the action as a class action under section 5(1) of the Class Actions Act in the form filed with the application, subject to the modifications made during the course of the hearing. The form of the final order has been circulated and approved by all counsel and the Court. _____________________________ Rosalie McGrath Justice