T.G., R.M. v. D.S.,, 2022 SKKB 244

REDACTED VERSION KING’S BENCH FOR SASKATCHEWAN Citation: 2022 SKKB 244 Date: 2022 11 09 Docket.: QBG-RG-00387-2009 Judicial Centre: Regina BETWEEN: T.G., R.M. and D.S., PLAINTIFFS - and - THE GOVERNMENT OF SASKATCHEWAN, DEFENDANT Counsel: E.F. Anthony Merchant, K.C., for the plaintiffs Anthony A. Tibbs, Steven J. Roxborough and Harsharn Brar Jeffrey G. Brick and Laura M. Mazenc for the defendant ___________________________________________________________________________ JUDGMENT POPESCUL C.J.K.B. November 9, 2022 ___________________________________________________________________________ I.

INTRODUCTION [ 1 ] This is an application pursuant to The Class Actions Act , SS 2001, c C-12.01 [ Act ], to certify the within proceeding as a class action and to appoint T.G., R.M. and D.S. [plaintiffs] as the representative plaintiffs for the class action. [ 2 ] The plaintiffs allege that the Government of Saskatchewan [Saskatchewan] or [defendant] was responsible for the operation, maintenance and administration of the R.J.D. Williams Provincial School for the Deaf (also known as the Saskatchewan School for the Deaf) [School], located in Saskatoon, Saskatchewan between 1955 and 1991.

They further allege that they were

physically, sexually and emotionally abused by their teachers, the staff and other students, and that these wrongful acts were caused by the defendant’s negligence and/or that of its agents for whom it is vicariously liable. The plaintiffs ground their claims in a variety of causes of action including negligence, breach of trust and breach of fiduciary duty. They seek general and specific damages for each member of the proposed class together with punitive, aggravated and exemplary damages and costs. [ 3 ] Section 6(1) of the Act stipulates that the court hearing a certification application “shall” certify the action as a class action if the following five criteria are met: 6(1) ... (

a) the pleadings disclose a cause of action; (

b) there is an identifiable class; (

c) the claims of the class members raise common issues, whether or not the common issues predominate over other issues affecting individual members; (

d) a class action would be the preferable procedure for the resolution of the common issues; and (

e) there is a person willing to be appointed as a representative plaintiff who: (

i) would fairly and adequately represent the interests of the class; (ii) has produced a plan for the class 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 other class members. [ 4 ] During the course of the oral hearing before the Court it became evident that the parties disagreed on whether some of the criteria were met, but were ad idem with respect to others.

The parties were invited to summarize the areas of consensus and contention. A document listing the “Agreed Matters” and “Disputed Matters” was filed with the Court. [ 5 ] The parties agreed that the pleadings disclose a cause of action in negligence (s. 6(1)(a)) and also agreed on the common issues that should be certified (if the class action is otherwise found to be certifiable) (s. 6(1)(c)). They also agreed on the terminology respecting the appointment of representative plaintiffs (ss. 6(1)(e)(

i) and (iii)) and the litigation plan (s. 6(1)(e)(ii)). [ 6 ] There are, however, three areas of disagreement. First, the parties disagree on the wording of the class definition ( s. 6(1) (b)). Second, they disagree as to who should be responsible to pay for the costs of the notice plan (s. 6(1)(e)(ii)). Third, and most significantly, the parties wholly disagree as to whether a class action is the preferable procedure (s. 6(1)(d)). [ 7 ] Accordingly, this decision will focus primarily on the three areas of disagreement. II.

ANALYSIS: AREAS OF AGREEMENT [ 8 ] Notwithstanding the agreement of the parties with respect to some of the criteria set forth in s. 6(1) of the Act , it is still the responsibility of the Court to review each criterion in order to ensure that all preconditions for certification have been met. I have done so and am able to comfortably conclude that the agreement of the parties is appropriate. Therefore, subject to some relatively minor refinements, I am prepared to herein declare that those criteria covered by the parties’ agreement have indeed been satisfied, subject to the conditions set forth below. (

a) Cause of action ( s. 6(1) (a)) [ 9 ] The parties have agreed that the pleadings disclose a cause of action in negligence. The record filed substantiates this agreement. Although the agreement of the parties submitted to the Court with respect to the s. 6(1) (

a) criterion refers only to the “negligence” as a cause of action, the portion of the agreement respecting the common issues referred to in common issues item 6 (below) also makes reference to a “breach of fiduciary duty”. The breach of fiduciary duty cause of action is substantiated by the record. It would appear that the parties’ agreement respecting the existence of a breach of fiduciary duty cause of action was inadvertently omitted. Accordingly, I find that the criterion in s. 6(1) (

a) of the Act is met with respect to both negligence and breach of fiduciary duty. (

b) Common issues ( s. 6(1) (c)) [ 10 ] The parties have agreed that the following common issues should be appropriately certified, if the class action is otherwise found to be the preferable procedure: 1) Throughout the operation of the School, were there management and operations procedures in place to ensure that staff could communicate through signing or other means with students?

Were these procedures adequate/reasonable/in accord with existing standards? 2) What procedures/training were in place for staff respecting recognition/discovery/prevention/reporting or otherwise dealing with sexual or physical misconduct? Were they adequate/reasonable/in accord with existing standards? 3) What procedures/training were in place for students respecting recognition/discovery/prevention/reporting/ or otherwise dealing with sexual or physical misconduct? Were they adequate/reasonable/ in accord with existing standards?

4) What was the staff to student ratio for supervision in areas of the school apart from the dormitory/ies? Was it adequate/reasonable/in accord with existing standards? Were there procedures establishing a method of supervision for other areas of the school? If so, were these procedures adequate/reasonable/in accord with existing standards? 5) What was the staff to student ratio for supervision in the dormitories? Was it sufficient to provide for a level of supervision that was adequate/reasonable/in accord with existing standards? Were there procedures establishing a method of supervision for the dormitories?

If so, were these procedures adequate/reasonable/in accord with existing standards? 6) For each or any of the above, if there was a failure to meet a standard which was adequate/reasonable/in accord with existing standards, was such a failure negligent or in breach of a fiduciary duty? 7) Was the existence of, absence of, or content of the above policies of the Defendant so egregious or highhanded as to justify an award of punitive damages? [ 11 ] I am satisfied that the claims made by the class members raise common issues and that the common issues formulated by the parties are suitable such that the s. 6(1)(

c) criterion has been met. (

c) Representative Plaintiff (ss. 6(1)(e)(

i) and (iii)) [ 12 ] The parties have agreed that: T.G. is appointed as a representative plaintiff, on condition that C.T., or some other proposed member of the class who is a resident of Saskatchewan, file, within 60 days of certification, an affidavit confirming his or her willingness to serve as representative plaintiff and otherwise attesting to the matters listed in Queen’s Bench Rule 3-93(2). [ 13 ] This aspect of the agreement of the parties is fair and reasonable. T.G. who attended the School from 1971 to 1987 appears to fit the criteria necessary to serve as a “representative plaintiff”.

However, because he is now a resident in Manitoba, counsel agreed that it would be appropriate to have another person added as a representative plaintiff who is resident in Saskatchewan; hence, the agreement to have another former student resident in Saskatchewan step forward to become an additional representative plaintiff. [ 14 ] I am prepared to consider this criterion to be conditionally certified. However, the Court ought not make a final determination with respect to whether this criterion has, in fact, been satisfied until an individual is identified and files the necessary supporting documentation.

Assuming that the material intended to be filed is in order, T.G. and the as of yet unnamed other plaintiff can be named by the Court as representative plaintiffs. However, until that potential plaintiff is identified and the material is filed, the satisfaction of this condition is best described as pending. [ 15 ] Therefore, I find this criterion, as set forth in s. 6(1) (

e) of the Act to be conditionally satisfied. (

d) Litigation Plan (s. 6(1)(e)(ii)) [ 16 ] Section 6(1)(e)(ii) requires, as a condition of certification, that the representative plaintiff produce a litigation plan. The litigation plan filed in support of the certification application, from the defendant’s perspective, is deficient. Nonetheless, the parties have agreed to a workaround to permit this action to move forward, should all the other criteria be met.

Specifically, the parties have proposed that the Court make the following order: [The defendant] alleges certain deficiencies in the proposed representative’s plaintiffs’ draft Litigation Plan but acknowledges that issues with the Litigation Plan would not, in themselves, preclude certification. [The defendant] proposes, and I so order, that a revised Ligation Plan be served on the Defendant within 60 days of certification for comment.

If the parties are unable to agree as to the particulars of the Litigation Plan, the issue may be brought back before the Court for determination. [ 17 ] I am satisfied that the parties’ agreement on this aspect of the litigation plan constitutes conditional satisfaction of the criterion set forth in s. 6(1) (e)(ii) of the Act . Accordingly, I am prepared to give effect to and approve this aspect of the order proposed by the parties. [ 18 ] The question of who should bear the costs of the notice aspect of the litigation plan will be addressed later under the areas of contention section. III.

ANALYSIS: AREAS OF CONTENTION [ 19 ] As indicated above, the parties were successful in arriving at a consensus on several aspects of the certification criteria, but were unable to agree on three areas which remain as points of contention. Each will be discussed below. (

a) Litigation Plan: Costs of the Notice of Certification (s. 6(1)(e)(ii)) [ 20 ] One of the criteria set forth in s. 6(1) of the Act as a prerequisite for certification is the production of a litigation plan that includes details of how potential class members will be notified of the action ( s. 6(1) (e)(ii)). The parties have expressed the view that although the current litigation plan is not yet fully developed, they are confident that they will be able to devise a mutually agreeable litigation plan, failing which they would have leave to engage the Court in order to resolve an impasse.

Any litigation plan would require notice that the action has been certified be given by the representative plaintiffs to the class members in accordance with s. 21 of the Act . [ 21 ] Although the parties agree that notice is required and that they are confident that they will be able to work out the details of what that notice should look like, they are not able to agree on who should pay the costs of such notice.

[ 22 ] The plaintiffs submit that the costs of the notice should be borne entirely by the defendant, while the defendant submits that the costs of the notice should be divided equally between the plaintiffs and the defendant. [ 23 ] The Act sets forth the requirements of the notice in

Part IV (ss. 21 to 26) of the Act . The Act addresses the issue of the costs of the notice in s. 26 as follows: Costs of notice 26(1) The court may make any order it considers appropriate respecting the costs of any notice pursuant to this Part, including an order apportioning costs among parties.

(2) In making an order pursuant to subsection (1), the court may consider the different interests of a subclass. [ 24 ] Counsel for the putative representative plaintiffs contends that the defendant should pay the costs of the notice because: • on balance, courts more often order defendants to pay; • since the notice will solicit opt-outs, the notice will benefit the defendant more than the plaintiffs because a favourable common issues judgment is likely to bind a greater number of class members; • burdening the plaintiffs with the costs of the notice undermines the goals of class actions; • it is in the interests of all parties to have the notice completed as soon as possible; • the identities of the class members are known to the defendant through the School records; • the defendant has greater resources than the plaintiffs; • if the plaintiffs are required to pay the costs of the notice, it will not be as complete since the plaintiffs will be motivated to attempt to persuade courts to accept a minimal notice regime; • knowing that plaintiffs will have to pay, and given that their resources are far less than those of the defendant, judges will reduce notice requirements; • it will be difficult to recruit representative plaintiffs because of the costs consequences that they will face in “no costs” jurisdictions. [ 25 ] The defendant initially took the position that the costs for notice should be borne by the plaintiffs because: • the case authorities, for reasons cited within them, suggest that there is a presumption that the initial costs of the notice plan be paid by the plaintiffs; see Cori Pederson and Bernice McInnes v Saskatchewan (21 November 2017) Regina, QBG-RG-00884-2012 (Sask QB) at para 16, Keene J.; W.P. v Alberta (No. 2) , 2013 ABQB 296 at para 128 , 563 AR 47 [ W.P. ] ; Bartram (Litigation guardian of) v GlaxoSmithKline Inc. , 2015 BCSC 315 at paras 16-18 and 21 ; and Walls v Bayer Inc. , 2007 MBQB 131 at paras 48 and 51-54 , 217 Man R (2d) 66 ; see also Markle v Toronto (City) (2004), 42 CCPB 69 (Ont Sup Ct); • requiring the representative plaintiffs (and/or class counsel) to contribute to the costs of the notice plan ensures that the plan is reasonable, rather than excessive or wasteful; • the plaintiffs could apply to cover their contribution to the costs of the notice at the conclusion of the action which would ensure that the notice plan proposed by the plaintiffs is reasonable and would leave the court with the discretion to compensate them for costs at that point, if that ultimately proves to be a just result. [ 26 ] Subsequent to the defendant filing its brief, it modified its position somewhat so as to propose that the costs of the notice plan be split evenly between the plaintiffs and the defendant. [ 27 ] A review of the case authorities suggests that the most frequent practice is to have the plaintiffs pay the initial costs of the notice to class members.

This makes sense, as a general rule, because it is the representative plaintiffs that seek certification and one of the requirements of a successful certification application is for the representative plaintiff to produce a plan notifying class members of the action (s. 6(1)(e)(ii)).

The burden of notifying the class members clearly falls on the representative plaintiffs. [ 28 ] After having said that, the question of who should pay the costs of the notice is arguably a different matter and there may be circumstances or other situations that would justify a departure from the approach taken in most cases. [ 29 ] In this case, it is difficult if not impossible, to determine whether there should be a departure from what I will label the “usual approach” because the litigation plan, which would include the notification plan, is yet to be worked out by counsel and confirmed by the Court.

It is not clear as to what is being proposed and how much it will cost. [ 30 ] In my view, given these circumstances, the best and fairest way to proceed would be to accept the modified position advanced by the defendant and require that the costs of the notification be divided, in the first instance, equally between the plaintiffs and the defendant. This should have the effect of ensuring that both parties work together to form a reasonable, fair and cost efficient notification plan because they are both being required to fund it equally.

The Court will, of course, retain the discretion to compensate either party for their contribution to the costs of the notice at the conclusion of the action, if appropriate. [ 31 ] Accordingly, the costs of the notice for the purposes of s. 6(1)(e)(ii) is to be shared equally in the initial

instance. Either party is granted leave to apply to recover their costs of the notice at the conclusion of the case. (

b) Class Definition (s. 6(1)(b)) [32] Section 6(1)(

b) requires, as a condition precedent to certification, that the court be satisfied that there is anidentifiable class.

The Act defines a “class” in s. 2 as “two or more persons with common issues respecting a cause of action or a potentialcause of action, ...”. [33] Both parties agree that this requirement has been met -- in that there is an identifiable class -- but part ways onprecisely the way in which the class should be defined. [34] The plaintiffs propose that the class be defined as follows: All students who attended the Saskatchewan School for the Deaf in the Province of Saskatchewan between 1955 and 1991. [35] The defendant argues that the class is better defined by adding further detail so that the class would be definedas: All students who attended the Saskatchewan School for the Deaf in the Province of Saskatchewan between 195 and 1991 and who, whileso attending, claim to have suffered physical, sexual and/or psychological abuse. [Emphasis added to illustrate contrast] [36] The purpose of the identifiable class requirement was summarized by Richards J.A. (as he then was), in Alves vFirst Choice Canada Inc., 2011 SKCA 118 at paras 58-59, 342 DLR (4th) 427: 58 ... the purpose of the class definition required by s. 6(1)(

b) of the Act is three-fold. First, it identifies those persons who have apotential claim for relief against the defendant. Second, it defines the parameters of the law suit by specifying those persons who will bebound by its result. Third, it specifies the individuals entitled to notice pursuant to the Act. See: Caputo v. Imperial Tobacco Ltd. (2004), (ON SC), 236 D.L.R. (4th) 348 (Ont. Sup. Ct.). [37] The class definition proposed by the plaintiffs is too broad and is not rationally connected to either of the allegedcauses of action or the common issues that have been agreed upon.

On its face it includes not only those students that claim to have beenabused at the School, but also every student that ever attended the School in the specified time period, regardless of whether that studentalleges any abuse. [38] The plaintiffs’ causes of action are all based on the defendant’s alleged failure to prevent physical, sexual andemotional abuse.

All of the agreed upon common issues are similarly focused. [39] An overly broad class definition, as suggested by the representative plaintiffs, could cause confusion to formerstudents of the School who do not allege or claim that they were abused at the School. [40] Accordingly, it is appropriate to define the class as recommended by the defendant. The class, as so defined, isrationally connected to the common issues, is not overly or underly broad and does not constitute a “merits based class definition”, whichhas been found by numerous courts to be impermissible.

In Chadha v Bayer Inc. (2003), (ON CA), 63 OR (3d) 22(Ont CA), which cited with approval Robertson v Thomson Corp. (1999), (ON SC), 43 OR (3d) 161 (Ont Gen Div),the Court explained why a merits based class definition should be avoided, at page 169: “... the class should be defined in objectiveterms, and that circular

definitions referencing the merits of the claim or subjective characteristics ought to be avoided. Such

definitionsmake it difficult to identify who is a member of the class until the merits have been determined.

Definitions based upon the merits of theclaim also violate the statutory policy that the merits are not to be decided at the certification stage”. [41] Lastly, the class definition herein, which restricts the class to those students who, while attending “claim to havesuffered physical, sexual and/or psychological abuse” is very similar to

definitions utilized in other institutional abuse class action cases,including Rumley v British Columbia, 1999 BCCA 689, 180 DLR (4th) 639 [Rumley 1999], confirmed by the Supreme Court of Canada,2001 SCC 69, [2001] 3 SCR 184 [Rumley 2001], and White v Attorney General of Canada, 2004 BCSC 99, 24 BCLR (4th) 347. [42] Accordingly, I find that the class description proposed by the defendant is the appropriate definition for classmembers in this case. (

c) Preferable Procedure (s. 6(1)(d)) [43] It is a fair observation that the major sticking point as between the plaintiffs and the defendant is whether a classaction would be the preferable procedure. [44] Counsel for the plaintiffs argues that the vast majority of cases rendered in Canada respecting institutional abusecases have been certified as a class action after it was determined that a class action was the preferable procedure. Counsel for theplaintiffs has filed numerous cases to support this proposition including, of significance Rumley 1999 and W.P.

Both of these casesinvolved class action proceedings where former students at schools for the deaf in British Columbia and Alberta, respectively, sought tocertify their action as a class action while alleging physical, sexual and emotional abuse. Both Courts found that a class action was thepreferable procedure and certified the action.

Counsel for the plaintiffs argues that the cases that he has cited, and in particular, Rumley1999 and W.P. provide sound guidance as to how the case before this Court should be resolved and urges the Court to follow thereasoning in those decisions. [45] Counsel for the defendant, while acknowledging that most class actions alleging institutional abuse in one form

or another have been certified, argues that, with the benefit of hindsight, courts might have declined to certify. Counsel for the defendantasserts that actions for systemic institutional abuse have been characterized by delay, expense, complexity and paralysis leading up to,and even after, trials or court approved settlements. According to the defendant, the results in past cases have been marked byinefficiency and unfairness to both the defendants and the class members.

The defendant argues that former students of the School whoclaim to have suffered physical, sexual and/or psychological abuse are more likely to receive a just and effective remedy throughindividual actions, rather than a class proceeding. [46] In Kequahtooway v Saskatchewan (Government), 2018 SKCA 68, 426 DLR (4th) 95 [Kequahtooway], the Courtof Appeal for Saskatchewan discussed, among other things, the preferability criterion. That appeal involved a certification judge’srefusal to certify a class action alleging institutional systemic abuse at a facility for vulnerable individuals with cognitive challenges.

Thecauses of action set forth in that action are similar to those in this case and the allegations of physical, psychological and sexual abusewhile residing at the institute are also similar. [47] After finding that the certification judge made errors, including with respect to the preferability criterion, thematter was remitted back to the certification judge to reconsider the certification application with the guidance offered by the Court ofAppeal. [48] In Kequahtooway, the Court of Appeal confirmed that AIC Limited v Fischer, 2013 SCC 69, [2013] 3 SCR 949[Fischer], “... is now the controlling authority on the issue of preferability”.

The Court of Appeal also underscored the importance of thefollowing statement expressed by Justice Cromwell in Fischer: ... the preferability analysis is not solely focused on procedural considerations but must, within the proper scope of the certificationprocess, consider both substantive and procedural aspects (at para 4). [49] The Court in Kequahtooway then went on to provide the following helpful guidance respecting the preferabilitycriterion: [48] Justice Cromwell also made it clear that the assessment of preferability is not about whether a class action will realize all thegoals of “judicial economy, behavioural modification and access to justice” (at para 22), but rather it is a comparative analysis where thecertification judge is required to consider the “relative advantages of a class action” over other processes (at para 23).

Access to justicewill be served by a class action if “(1) there are access to justice concerns a class action could address; and (2) these concerns remaineven when alternative avenues of redress are considered …” (at para 26). [49] Access to justice in this context has two components. The first component is focused on the fairness of the choice of a classproceeding: Will a class proceeding give the claimants access to a fair process to resolve their claims?

The second component looks atthe substance of the claim, “and is concerned with whether the claimants will receive a just and effective remedy for their claims ifestablished” (Fischer at para 24). The two components are interconnected and inform each other. As Cromwell J. in Fischer observed,“defects of process will raise doubts as to the substantive outcome and defects of substance may point to concerns with the process” (atpara 24).

Further, Cromwell J. stated that one component without the other will result in a superficial access to justice analysis: “aprocess may be fair but nonetheless not offer a real opportunity to recover compensation for all the losses suffered” (at para 25). [50] To determine whether access to justice concerns are properly heard, Fischer offers a number of questions that may be useful toconsider in any given case (at paras 27-38): (

a) What are the barriers to access to justice (including a consideration of economic, psychological and social barriers)? (

b) What is the potential of the class proceedings to address the barriers? (

c) What are the alternatives to class proceedings? (

d) To what extent do the alternatives address the relevant barriers? (

e) How do the two proceedings compare? [51] Slark v Ontario, 2010 ONSC 1726, 6 CPC (7th) 168 [Slark], leave to appeal to refused, 2010 ONSC 6131, 6 CPC (7th) 221 (DivCt), dealt with a potential class action brought in the name of vulnerable individuals, many of whom suffered from cognitivechallenges. In Slark, Cullity J. held that a class action was the best way to pursue access to justice among the vulnerable class members.There was “no evidence that the class members [had] any other reasonable means of obtaining redress” (at para 167).

Importantly, in thatcase, he was able to say that coming to a conclusion on the common issues would “virtually end the litigation” (at para 169). [52] In Dennis v Ontario Lottery and Gaming Corporation, 2010 ONSC 1332, 318 DLR (4th) 110, aff’d 2011 ONSC 7024 (Div Ct),aff’d 2013 ONCA 501, leave to appeal to SCC refused, , the plaintiffs focused their class definition on people whowere vulnerable to the policies of the defendant due to their addiction to gambling.

The class certification was not granted, largely due tothe individualized nature of the claims outweighing any common issues amongst the potential claimants, but vulnerability was asignificant consideration in the case.

See also Phaneuf v Ontario, (Ont SC) [Phaneuf Certification], rev’d [2009] OJNo 5618 (QL) (Ont SC (Div Ct)), aff’d Ontario v Phaneuf, 2010 ONCA 901, 104 OR (3d) 392 [Phaneuf CA], where the certificationjudge considered the vulnerability of the group a factor in the preferability analysis (see paragraph 75 of the PhaneufCertification decision). ... [Italics emphasis in original] [50] As a starting point for the analysis, it is fair to acknowledge that the concerns expressed by counsel on behalf ofthe defendant are valid.

I was designated as the judge to consider this certification by former Chief Justice Laing, my predecessor, onNovember 10, 2009 - over 13 years ago. The action has, for the most part, been dormant, with occasional spurts of activity.

[ 51 ] It was not until June 22, 2016, that the Court’s participation was requested. At that time an issue arose as to which of two competing motions should be scheduled first. The defendant argued that its

summary judgment application should be heard first. The plaintiffs resisted this suggestion and argued that the certification application should be heard first. On May 19, 2017, I rendered a decision directing that both applications be heard at the same time. See T.G. v Saskatchewan , 2017 SKQB 146 , 10 CPC (8th) 205 . [ 52 ] The two motions were then set to be heard on September 10, 2018. On August 31, 2018, the defendant requested an adjournment. The plaintiffs opposed the request.

I denied the adjournment request and ordered that the application proceed on the dates previously scheduled. [ 53 ] Ironically, immediately prior to the hearing commencing, counsel for the plaintiffs, who had opposed the defendant’s request for an adjournment, then reversed course and sought to have the application adjourned. On September 12, 2018, the hearing was adjourned at the request of both parties. [ 54 ] Eventually, the hearing was convened and heard on December 13, 2021. In the meantime the defendant abandoned its

summary judgment application and the certification application was heard, and reserved. [ 55 ] To suggest that this case has not proceeded with dispatch and that, perhaps, in hindsight it may have been better for students to individually pursue their own claims is a fair comment. [ 56 ] However, the Court must make the preferability decision based upon the circumstances that are present at the time the application is heard -- which is now. The preferability requirement has two components at its core. First, whether the class action would be a fair, efficient and manageable way to advance the claim.

Second, whether the class action would be preferable to other reasonably available means of resolving the claims of class members. [ 57 ] As set forth in Fischer , the preferability inquiry should be conducted through the lens of the three principle advantages of a class proceeding, namely: judicial economy, access to justice and behaviour modification.

It is not whether a class proceeding will achieve all of those goals, but rather, as related in Kequahtooway , it involves a comparative analysis where the relative advantages of a class action are weighed against other processes. [ 58 ] In my view, after considering the colossal mountain of material filed in this case and the arguments of counsel, I am satisfied that, as of today, a class proceeding would be the preferable process. Certification will allow most of the elements of liability for negligence and breach of fiduciary duty to be determined at a common issues trial.

This would substantially advance the proceeding. [ 59 ] The reality that a resolution of the common issues would still leave in existence a number of individual issues does not alter my conclusion because the resolution of common issues will nonetheless materially advance the proceeding in a relatively significant way. In Rumley 2001 , McLachlin C.J.C. found that even though there are likely differences between individual class members, the essential question to be determined was “whether the school should have prevented the abuse or responded to it differently”.

Therefore, even after acknowledging that issues of injury and causation would still need to be litigated in individual proceedings after a common issues trial was complete, the ultimate conclusion reached was that the action was properly certified as a class action. [ 60 ] In addition, it is apparent that the history and evolution of the School will most definitely be an important aspect to be considered in assessing the claim.

Requiring each prospective plaintiff to call this type of evidence at an individual trial would be unnecessarily costly and time consuming, when this type of evidence need only be called once in a common issues trial. I find that a common issues determination would advance the litigation considerably, notwithstanding that there will be a need to adjudicate individual issues. [ 61 ] Another important factor tending to support the satisfaction of the preferability criterion is the nature of the members of the class.

Certification would better provide access to justice to a group who might fairly be characterized as vulnerable and disadvantaged. Having a common issues trial that focuses on the alleged system breaches would mean, in practical terms, that most individual class members would not need to actively participate in the common issues trial, which would spare them the expense and anxiety that would be required to prove this aspect of their claim within an individual trial. Vulnerability of the group is an appropriate factor to take into account in the preferability assessment.

See Kequahtooway at paras 51-52 , and Rumley 1999 at para 24: 24 ... And there are other reasons unique to this case which favour class proceedings. The communications barriers faced by the students both at the time of the assaults alleged and currently in the litigation process favour a common process to explain the significance of those barriers and to elicit relevant evidence. A group action should assist in marshalling the expertise required to assist individual students in communicating their testimony effectively.

Issues related to policy and administration of the school, qualification and training of staff, dormitory conditions and so on are likely to have common elements. The overall history and evolution of the school is likely to be important background for the claims generally and it would be needlessly expensive to require proof in separate individual cases.

The assessment of damages for particular victims is an individualized process but individual assessment of damages is not a reason to refuse certification. [Emphasis added] [ 62 ] In addition to the comments in Kequahtooway , I find the reasoning respecting the preferability criterion in Rumley 1999 , Rumley 2001 and W.P. to be compelling. Another decision that found a class action to be the preferable procedure in an institutional abuse case alleging systemic negligence and abuse of trust is Seed v Ontario , 2012 ONSC 2681 , 31 CPC (7th) 76 [ Seed ] .

That case involved a provincially operated elementary and secondary school for children who were visually impaired, blind and deaf/blind. The findings and conclusions reached by Horkins J. in Seed , include the following: 139 The focus in this action, as with other class proceedings alleging institutional abuse, is on systemic wrongs, not on the individual

circumstances of class members. The court in determining these common issues will assess the knowledge and conduct of those incharge of the school over the class period. ... 142 ... The claims advanced are systemic and are anchored in the manner in which Ross MacDonald was maintained and administered,without differentiation between each student’s experience.

Each common issue is a substantial ingredient of each class members’ claimand its resolution is necessary for the resolution of each class members’ claim. ... 149 Like Cloud [(2004), (ON CA), 73 OR (3d) 401 (CA)] and Slark [2010 ONSC 1726], this is an institutional casethat focuses on systemic wrongs. A class proceeding is a fair, efficient and manageable method for advancing the class members’ claimsand is preferable to other procedures and means of resolving their claims.

See Cloud at paras. 78-92 and Slark at paras. 165-169 150 In Cloud at paras. 78-83 and 90, the court determined that the common issues, considered in the context of the claim as a whole,would significantly advance the claims of class members. It found that the common issues, substantially the same as those in this action,were fundamental to the claims of class members.

Their resolution will take the action “up to the point where only harm, causation andindividual defences such as limitations remain for determination.” In my view, these comments in Cloud apply equally to the case athand. 151 Access to justice and judicial economy are paramount concerns in this case and will be served by this action continuing as a classproceeding. An action of this kind will be extremely expensive to pursue. The documentary evidence will likely be extensive and time-consuming to collect and review. Expert witnesses will likely be retained in the course of the proceedings.

Most individuals cannotafford to pursue litigation on this scale. Certification will ensure the class has meaningful access to justice. There is no feasiblealternative procedure available for class members to pursue their claims. The comments quoted above apply with equal force to the case before this Court. [63] In my view, the plaintiffs have satisfied me that a class action is the preferable procedure within the meaning ofs. 6(1)(

d) of the Act. A class proceeding would be a fair, efficient and manageable method of advancing the claim of the class membersin a meaningful way and the relative advantages of a class action outweigh the other alternatives. IV. CONCLUSION [64] The proposed representative plaintiffs have applied to this Court for an order that the within action be certifiedas a class action. Section 6(1) of the Act requires that the Court certify an action as a class action if the Court, on application, is satisfiedthat the criteria set forth in s. 6(1) have been met.

For the reasons cited above, I conclude that, subject to the conditions and limitationsset forth below, all criteria for certification set forth in the Act have, in fact, been sufficiently met. Therefore, I order that the withinaction be certified. [65]

Section 10 of the Act specifies what a certification order must include. With that provision in mind and for thereasons related above, the order that I make is as follows: 1. Subject to further compliance with the terms of this order, the within action shall be certified as a class action. 2. The pleadings disclose a cause of action. The nature of the claims are negligence and breach of fiduciary duty. 3. The relief claimed by the class is damages, further directions and costs, as follows: (

a) general and special damages for each member of the class, including in amounts to be aggregated; (

b) punitive damages for each member of the class in an amount to be aggregated; (

c) such further and other costs and damages as may be proven at trial; (

d) an order directing a reference or giving such other directions as may be necessary to determine issues not determined in the trial ofthe common issues, and an order directing the manner in which, and the time within which, class members may opt out of the classaction; (

e) costs of notice and of administering the plan of distribution of the recovery in this action plus applicable taxes; and (

f) pre-judgment interest; (

g) such further and other relief as this Court deems just. 4. There is an identifiable class and that class is defined as follows: All students who attended the R.J.D. Williams Provincial School for the Deaf in the Province of Saskatchewan between 1955 and 1991and who, while so attending, claim to have suffered physical, sexual and/or psychological abuse. 5.

The claims of the class members raise common issues and those common issues for the purpose of this action are as follows: 1) Throughout the operation of the School, were there management and operational procedures in place to ensure that staff couldcommunicate through signing or other means with students? Were these procedures adequate/ reasonable/in accord with existing

standards? 2) What procedures/training were in place for staff respecting recognition/discovery/prevention/reporting or otherwise dealing with sexual or physical misconduct? Were they adequate/ reasonable/in accord with existing standards? 3) What procedures/training were in place for students respecting recognition/discovery/prevention/reporting or otherwise dealing with sexual or physical misconduct? Were they adequate/ reasonable/ in accord with existing standards? 4) What was the staff to student ratio for supervision in areas of the School apart from the dormitory/ies?

Was it adequate/reasonable/in accord with existing standards? Were there procedures establishing a method of supervision for other areas of the School? If so, were these procedures adequate/reasonable/in accord with existing standards? 5) What was the staff to student ratio for supervision in the dormitories? Was it sufficient to provide for a level of supervision that was adequate/reasonable/in accord with existing standards? Were there procedures establishing a method of supervision for the dormitories?

If so, were these procedures adequate/reasonable/in accord with existing standards? 6) For each or any of the above, if there was a failure to meet a standard which was adequate/reasonable/in accord with existing standards, was such a failure negligent or in breach of a fiduciary duty? 7) Was the existence of, absence of, or content of the above policies of the defendant so egregious or highhanded as to justify an award of punitive damages? 6. A class action is the preferable procedure. 7.

T.G. is appointed as a representative plaintiff, on condition that C.T., or some other proposed member of the class who is a resident of Saskatchewan, file, within 60 days of this certification order, an affidavit confirming his or her willingness to serve as an additional representative plaintiff and otherwise attests to the matters listed in Rule 3-93(2) of The Queen’s Bench Rules .

Once C.T., or some other proposed member of the class who is resident in Saskatchewan, has come forward and filed the above referenced affidavit, that additional material shall be filed and brought to the attention of the Court so the Court can confirm that the conditional satisfaction of the representative plaintiff criterion has, indeed, been satisfied. 8. A revised litigation plan is to be served on the defendant, and filed with the Court, within 60 days of certification for comment.

If the parties are not able to agree as to the particulars of the litigation plan, the issue may be brought back before the Court for determination. In the event that the parties are able to agree on a litigation plan, the parties are directed to file with the Court the agreed upon litigation plan, with their consents endorsed thereon, so the Court can review it and satisfy itself as to the legislation set forth in s. 6(1) (e)(ii) of the Act . 9. The costs associated with the notice requirements prescribed by the Act will be, at the first instance, shared equally between the plaintiffs and the defendant. V.

COSTS [ 66 ] Neither party has sought costs and none are awarded. C.J.K.B. M.D. POPESCUL