Kequahtooway v Saskatchewan (Government), 2018 SKCA 68

Court of Appeal for Saskatchewan Docket: CACV2732 Citation: Kequahtooway v Saskatchewan (Government) , 2018 SKCA 68 Date: 2018-08-24 Between: Marion Kequahtooway by her litigation guardian Tina Dickson Appellant (Plaintiff) And The Government of Saskatchewan Respondent (Defendant) Before: Jackson, Ottenbreit and Whitmore JJ.A. Disposition: Appeal allowed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Ottenbreit The Honourable Mr. Justice Whitmore On Appeal From: 2015 SKQB 183 , Regina Appeal Heard: December 4, 2017 Counsel: E.F.

Anthony Merchant, Q.C., for the Appellant Michael Morris and Laura Mazenc for the Respondent Jackson J.A. I. Introduction [ 1 ] This is an appeal from a refusal to certify a class action alleging systemic abuse at an institution for the intellectually challenged, formerly known as the Saskatoon Training School and currently operating as the Valley View Centre [collectively, the Centre]. The appellant is Ms. Marion Kequahtooway (as represented by her litigation guardian Ms. Tina Dickson), who resided at the Centre from 1968 to 1971.

The Government of Saskatchewan [the Government] has been operating the Centre since 1955 and is the respondent on this appeal. [ 2 ] Ms. Kequahtooway alleges she was the victim of physical, psychological and sexual abuse while residing at the Centre. She seeks to have a class action certified on behalf of all who resided at the Centre from 1955 and who were living as of the date she commenced her claim, i.e., September 16, 2010.

On behalf of the proposed class, she alleges systemic negligence and breach of fiduciary duty for which she seeks damages from the Government. [ 3 ] The learned Chambers judge, who heard the application for certification, refused to certify the class action, holding, first, that the common issues are neither appropriate nor useful and, second, that a class action is not the preferable procedure for individual claimants to pursue their claims. The appellant appeals from the refusal to certify. [ 4 ] The Government seeks to sustain the decision of the Chambers judge primarily on two bases.

First, a class action will be complex and unwieldy, leaving many issues to be resolved by individual trials. Second, in light of the significant intellectual challenges faced by the potential claimants, a class action based on systemic negligence and breach of fiduciary duty will deny them much more easily proven claims in individual actions for assault, if such took place, which will not be subject to limitation periods. [ 5 ] In my respectful view, the Chambers judge erred in several respects.

After due consideration, I have concluded that it is necessary to remit the matter to the Court of Queen’s Bench for another certification hearing. II. Applicable Legislation [ 6 ] In order to have an action certified as a class action, the applicant must satisfy the requirements of s. 6(1) of The Class Actions Act , SS 2001, c C-12.01 [the Act ]: Class certification 6

(1) Subject to subsections (2) and (3), the court shall certify an action as a class action on an application pursuant to

section 4 or 5 if the court is satisfied that: (

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. III. The Background and the Pleadings [ 7 ] The Chambers judge held an initial hearing with respect to certification: Safioles v Saskatchewan (Government) , 2014 SKQB 260 , 453 Sask R 295 [ Safioles ].

Much of the background to the within appeal is found in that decision. The actual decision refusing certification is Safioles v Saskatchewan , 2015 SKQB 183 , 472 Sask R 38 [ Certification Decision ]. As a preliminary and uncontested point, no litigation guardian came forward to act for Mr.

Safioles and the Chambers judge removed him from the claim (at para 1). [ 8 ] The appellant alleges that residents of the Centre were subjected to a variety of forms of mistreatment by staff and other residents, including physical, psychological and sexual abuse ( Safioles at para 28 , citing para 57 of the statement of claim). In Safioles , the Chambers judge reached these conclusions and made these orders: (

a) he did not accept the Government’s objection to the claims period being from 1955 to the present – following Seed v Ontario , 2012 ONSC 2681 at paras 118–125 , 31 CPC (7th) 76, he decided that the Court need not have evidence for every year and he was “prepared to consider the period of 1955 to the present day” (at para 47); (

b) he found that the transition from the Saskatchewan Training School to Valley View Centre did not act as an impediment to certification for the period from 1955 to the present day (at para 48); (

c) a potential limitation defence “should not be considered during a certification application” (at para 53); (

d) the plaintiffs would be given an opportunity, by way of an adjournment, to amend their claim and provide the necessary foundation for a claim for breach of fiduciary duty (at para 54); (

e) Ms. Dickson would be permitted to be the litigation guardian for Ms. Kequahtooway (at para 56); (

f) the claim would be amended to delete Mr. Safioles, unless a litigation guardian were to come forward (at para 57); and (

g) he adjourned the application for certification to allow the plaintiffs to rectify various deficiencies in the pleadings that he had identified (at para 64). [ 9 ] With that by way of background, the matter came on for what was intended to be a final certification hearing ( Certification Decision ). When the hearing resumed, the amended claim had been further amended to read as follows: 57. 55. 54 .

The emotional, mental, physical, psychological, and sexual abuse to which the Class was subjected, was caused by the negligence, systemic negligence , breach of trust, and breach of fiduciary duty of the Government, particulars of which include: (1) failing to put reasonable guidelines in place with respect to hiring persons to serve as administrators, servants, agents, or employees of STS /VVC ; (2) permitting unqualified individuals to hire unqualified administrators, supervisors, and other servants, agents, and employees of the Government to operate STS /VVC ; (3) employing incompetent servants, agents, and employees to supervise and monitor the administrators, supervisors, servants, agents, and employees at STS /VVC ; (4) failing to protect the Plaintiffs and the Class from abuse by the Government’s agents, servants, and employees; (5) creating circumstances which resulted in physical and sexual abuse; (6) failing to take reasonable care to prevent injury to the Plaintiffs and class members through damage to the mental, physical, and sexual health and well-being of the Class while they were residents at STS /VVC ; (7) permitting the physical and sexual abuse of the Plaintiffs and the Class by agents, servants, and employees of the Government and by other residents; (8) failing to create any system of confidential reporting, checking, or counseling to guard against the risk of the abuse which occurred, which should have been anticipated to be reasonably possible and foreseeable in any residential circumstance, but particularly should have been anticipated by those responsible for an institution for those with intellectual disabilities in view of the history of such institutions in Canada and in view of the inherent risks involved; and

(9) failing to create and foster a system of observing, investigating, and confidential reporting of physical and sexual abuse by staff and residents to people in authority. (Heavy underlining indicates the new amendments.) [ 10 ] Other aspects of the claim assert that the Government (

a) put its own interests ahead of those of the class and turned “a blind eye to the abuse” (at para 55), (b) “is vicariously liable for the actions of those persons and also liable in their position as principal” (at para 57), (

c) owed a duty as the occupier of the Centre (at para 58), and (

d) acted in bad faith (at para 63). [ 11 ] The appellant also stated her claim for a remedy in a more comprehensive manner: 74.

The Plaintiffs, as representatives of a class of persons who have suffered injury, economic loss, and damage as a result of the Government’s acts, omissions, wrongdoings, and breaches of legal duties and obligations, performed in the absence of good faith, on behalf of themselves and class members, claim against the Government: (1) general and special damages for each member of the Class, including in amounts to be aggregated; (2) monetary relief or such other appropriate and just remedy under section 24(1) of the Charter of Rights and Freedoms ; (3) punitive damages for each member of the Class in an amount to be aggregated; (4) aggravated and exemplary damages for each member of the Class in an amount to be aggregated; (5) such further and other costs and damages as may be proven at trial; (6) interest pursuant to The Pre-Judgment Interest Act , S.S. 1984-85-85, c.

P.22.2;

(7) Goods and Services Tax payable pursuant to the Revenue Canada Excise Act ; [and] (8) such further and other relief as counsel may advise and this Honourable Court may allow. [ 12 ] The proposed class continued to be “all individuals who attended or resided at the Saskatchewan Training School or Valley View Centre and who are living on September 16, 2010” ( Certification Decision at para 6). The appellant proposed these common issues (as cited in the Certification Decision ): [11] The plaintiff seeks certification of the following common issues [common issues]: 1.

Was the defendant negligent in failing to take reasonable measures in the creation, operation or management of the Saskatchewan Training School and Valley View Centre, to protect students or residents from physical, sexual or psychological abuse by employees, agents, or other students or residents? 2.

Was the defendant in breach of its fiduciary duty to class members by failing to take reasonable measures in the creation, operation or management of the Saskatchewan Training School and Valley View Centre, to protect students or residents from physical, sexual or psychological abuse by employees, agents or other students or residents? 3. Did the defendant operate the Saskatchewan Training School and Valley View Centre in such a way as to fraudulently conceal any breach of duty by it to the class members? 4. Does the conduct of the defendant justify an award of punitive damages? 5.

If the answer to any of these common issues is yes, can the court make an aggregate assessment of the damages suffered by all class members and if so, in what amount? [ 13 ] In its statement of defence, the Government outlined the history of the Centre. Among other defences, the Government asserts that various Acts of the Legislature make it generally immune from suit. It also argues specifically that it is not liable for torts committed by patients.

It also specifically pleads that the appellant’s claims, and that of the other proposed class members, are statute barred by virtue of the passage of time. [ 14 ] The appellant had also filed a “Reply to Defence”, which contained several new averments, including the following: 12. At all material times, the Defendant concealed the fact that its acts and omissions were being committed, were legally wrong, and constituted abuse.

Because the Plaintiffs and the Class suffer from intellectual disability or impairment, or mental disorder, and because the Plaintiffs and the Class were cut off from their families and institutionalized, the fraudulent concealment should be considered to have occurred with a lower bar commensurate with the known circumstances and ability of the Plaintiffs and the Class. … 18. This claim is based on misconduct of a sexual nature and at the time of the injury the Plaintiffs and the Class were in a relationship of financial, emotional, physical, or other dependency with the Defendant. … 20.

If the trial judge determines that notwithstanding the facts pled above, limitation periods do apply to Class members’ claims, the

discoverability analysis must be performed on an individual basis. IV.

Summary of the Certification Decision [15] The Chambers judge began his analysis by citing this Court’s decision in Hoffman v Monsanto Canada Inc., 2007 SKCA 47,[2007] 6 WWR 387 [Hoffman], leave to appeal to the SCC refused, , with respect to the burden on the appellant asthe plaintiff. He then proceeded to consider whether the appellant had satisfied him with respect to each of the pre-conditions tocertification contained in s. 6 of the Act. [16] He found first that the pleadings disclosed a cause of action so as to meet the threshold requirement of “disclosing a cause ofaction” under s. 6(1)(

a) of the Act. [17] With respect to s. 6(1)(

b) of the Act, and the identifiable class criterion, the Chambers judge noted the Government’sargument that the proposed class definition was overly broad. He stated the plaintiffs did not oppose the definition being narrowed bydeleting the reference to people who had “attended” the Centre (Certification Decision at para 7). Thus, repeated for clarity, the baselineproposed class was now presumably stated to be “all individuals who resided at the Saskatchewan Training School or Valley ViewCentre and who are living on September 16, 2010”. [18] The Chambers judge then considered whether the class should be further narrowed. He began by referring to examples ofclass

definitions used by other courts and ultimately concluded that a substantially more narrow definition was needed. He concluded asfollows: [9] However as the chart displays, the courts have varied in their application of detail. The class identification ranges from somethingsimilar to the above to a more detailed description of the alleged harm done. It seems to me that more detail would be reasonable. In thatway there could at least be an attempt to avoid confusion for those who resided at the Saskatchewan Training School or Valley ViewCentre who have no complaint and those who allege wrongdoing.

Accordingly I would be prepared to accept the following classidentification as follows: All individuals who resided at the Saskatchewan Training School or Valley View Centre and who were living on September 16, 2010,and who while so residing suffered physical, sexual, emotional and/or psychological abuse and have suffered injury, loss or damage as aresult thereof. (Emphasis added.) [19] With this by way of an identified class, he was prepared to say, “on the surface at least, it is possible to come up with anidentifiable class definition based on the pleadings and evidence tendered” (at para 10).

He then mentioned the Government’s argumentthat there was potentially insufficient evidence to conclude that such class members actually existed. Government counsel posed thisquestion: “Are there really more than the two or three or four people who allege misconduct?” (at para 10). The Chambers judgecommented that he preferred to deal with this argument under the preferable procedure analysis but that the Government had a“persuasive argument” on the question of numbers (at para 10). [20] The Chambers judge then considered the common issues criterion from s. 6(1)(

c) of the Act. He noted that the plaintiff’sproposed common issues were “broadly framed”, as set out above in paragraph [12] of this judgment, and had been subjected to critique.He mentioned that counsel for the Government had proposed more detailed common issues but had done so reluctantly because detailwould still not avoid protracted and difficult litigation. The Chambers judge remarked on the fact that other courts have approvedcommon issues in institutional abuse cases and referred, in general, to summaries of these cases as provided by counsel.

He considered,specifically, two of the common issues: punitive damages and fraudulent concealment. [21] Relying on Pederson v Saskatchewan (Minister of Social Services), 2014 SKQB 416 at 32–39, 456 Sask R 54 [Pederson QB],the Chambers judge stated he would not “include as a common issue punitive damages” (Certification Decision at para 14). Citing Rule3-93(2)(

b) of The Queen’s Bench Rules, he also refused a fraudulent concealment common issue on the basis that the appellant had notprovided “sworn evidence” that the Government had “operated the institution ‘in such a way as to fraudulently conceal any breach ofduty by it to the class members’” (at para 15, citing the proposed common issues). [22] The Chambers judge then concluded his analysis of the common issues: [16] That leaves proposed common issues 1, 2 and 4. For the reasons set out below under my analysis of “preferable procedure”, I willnot approve the remaining three issues either.

I appreciate there would usually be a distinct analysis under this heading but I prefer todeal with the common issues below in a contextual way. [23] From there, the Chambers judge proceeded to his preferability analysis as required by s. 6(1)(

e) of the Act. He referred toHollick v Toronto (City), 2001 SCC 68 at para 24, [2001] 3 SCR 158 [Hollick], to determine if a class proceeding is the preferableprocedure for resolving the claims (Certification Decision at para 25). He also cited Markson v MBNA Canada Bank, 2007 ONCA 334,282 DLR (4th) 385, which discussed the Hollick principles, albeit in a different context. He reviewed two decisions that had involvedsystemic negligence allegations: Rumley v British Columbia, 2001 SCC 69, [2001] 3 SCR 184; and T.L. v Alberta (Director of ChildWelfare), 2006 ABQB 104, 408 DLR (4th) 661 [T.L. #1].

While I will return to this issue later, in short, the Chambers judge concludedthat “a class action in this case is not the preferable procedure” (Certification Decision at para 26). He was unpersuaded that theproposed issues “are useful in this case” (at para 27). [24] Finally, he reiterated his conclusions from Safioles that Ms. Kequahtooway, by her litigation guardian (Ms. Dickson), is a

suitable representative plaintiff and an adequate workable plan had been submitted (Certification Decision at paras 32–33). [25] On appeal, among other grounds, the appellant challenges the Chambers judge’s definition of the class, his rejection of thecommon issues and the apparent combining of the identifiable class and common issues criteria with the preferable procedure inquiry.Further, the appellant alleges the trial judge erred in his overall approach to the analysis. With much respect, I must conclude that thesecomplaints are largely warranted. V. Issues [26] While the appellant sets them out differently, the issues arising from these broad categories may be framed as follows: (

a) Did the Chambers judge err by defining the class as he did? (

b) Did the Chambers judge err with respect to his common issues analysis, specifically, by rejecting the proposed commonissues related to fraudulent concealment and punitive damages? (

c) Did the Chambers judge err with respect to his preferable procedure analysis? (

d) Did the Chambers judge err with respect to his overall approach to assessing the certification criteria? (

e) What is the appropriate remedy if error be found? VI. Standard of Review [27] In AIC Limited v Fischer, 2013 SCC 69 at para 65, [2013] 3 SCR 949 [Fischer], the Court unanimously held “a certificationjudge is entitled to substantial deference”, but that “deference does not protect the decision against review for errors in principle whichare directly relevant to the conclusion reached” (at para 65).

An appeal court may intervene where there is an “error in principle” that isrelevant to a conclusion reached. [28] This Court has additionally found a reversible error when a certification judge has not situated the necessary analysis “in thecontext of the leading case law in [the] area” (Ross v Canada (Attorney General), 2018 SKCA 12 at para 81, [2018] 5 WWR 669 [Ross2018]). Notwithstanding that a certification judge is generally owed deference on appeal, a court may intervene when such an error hasoccurred (Ross 2018 at para 81). VII. Analysis A.

Class Definition [29] The test for determining if there is an identifiable class pursuant to s. 6(1)(

b) is, broadly speaking, whether the class definitioncould not be further narrowed “without arbitrarily excluding” potential claimants (Hollick at para 21). The analysis should be approachedwith a view to fulfilling the three purposes of class proceedings: judicial economy, behavioural modification and access to justice (see,further, Fischer, which is discussed infra).

It is not apparent from the reasons of the Chambers judge that he approached theidentification of the class with these purposes in mind. [30] The Chambers judge’s choice of class definition also appears to have created a merits-based definition, which this Court andothers have said may be inappropriate: Sorotski v CNH Global NV, 2007 SKCA 104 at para 44, [2008] 1 WWR 386 [Sorotski], leave toappeal to SCC refused, ; Windsor v Canadian Pacific Railway, 2007 ABCA 294 at para 18, [2007] 12 WWR 5; and,for a discussion of the issue, see Merck Frosst Canada Ltd. v Wuttunee, 2009 SKCA 43 at paras 72–100, [2009] 5 WWR 228, leave toappeal to the SCC denied, . [31] He also seems to have imposed a requirement that there be a large number or “a groundswell” of potential class members inorder to find and define an identifiable class – thereby either altering the legal test or elevating the evidentiary requirements andcombining a consideration of identifiable class with the preferability assessment, namely, the fact that the potential class appears, at thistime, to be quite small.

B. Common Issues Determination 1. Punitive Damages [32] The Chambers judge rejected punitive damages as a common issue, relying on an earlier decision in Pederson QB, which hassince been overturned on this point by Pederson v Saskatchewan (Minister of Social Services), 2016 SKCA 142, [2017] 5 WWR 669[Pederson SKCA], leave to appeal to the SCC denied, . Both Pederson SKCA (in paragraphs 77 to 94) and Ross 2018(in paragraphs 91 and 92) do not rule out the possibility of assessing punitive damages as a common issue in institutional abuse cases. 2.

Fraudulent Concealment [33] In a brief paragraph, the Chambers judge decided fraudulent concealment could not serve as a common issue:

[15] I note as I did in Pederson [QB] (para 40) that Rule 3-93(2)(

b) of The Queen’s Bench Rules requires the plaintiff to provide swornevidence as to the reason the representative plaintiff believes the common issues exist for the rest of the members of the class.

There isno such evidence here that the defendant operated the institution “in such a way as to fraudulently conceal any breach of duty by it to theclass members” and on that ground this common issue cannot be approved. [34] It is not clear from these reasons that the Chambers judge considered either the definition of fraudulent concealment or thecase law, albeit limited, concerning the certification of fraudulent concealment as a common issue. a. Meaning of fraudulent concealment [35] The question that arises is whether the Chambers judge’s finding of “no such evidence” is based on an

interpretation ofcommon law fraud or the more expanded version of equitable fraud that is based on a relationship grounded in vulnerability. This moreexpanded notion was first discussed in Guerin v The Queen, (SCC), [1984] 2 SCR 335 [Guerin]. In Guerin, the SupremeCourt, referring to Kitchen v Royal Air Force Association, [1958] 1 WLR 563 (CA) [Kitchen], held that “[t]he fraudulent concealmentnecessary to toll or suspend the operation of the statute need not amount to deceit or common law fraud” (at 390).

Without purporting todefine the phrase, the Court in Kitchen was confident that equitable fraud covers “conduct which, having regard to some specialrelationship between the two parties concerned, is an unconscionable thing for one to do towards the other” (at 573). In M.(K.) v M.(H.), (SCC), [1992] 3 SCR 6 [M.(K.)], the Supreme Court, citing both Guerin and Kitchen, stated that “‘fraud’ in this contextis to be given a broad meaning, and is not confined to the traditional parameters of the common law action” (M.(K.) at 57).

In GirouxEstate v Trillium Health Centre (2004), (ON CA), 194 OAC 231 (CA) at para 28, the Court commented that “thecommon law doctrine of fraudulent concealment is not a rule of construction. It is an equitable principle aimed at preventing a limitationperiod from operating ‘as an instrument of injustice’” (at para 28, citing M.(K.) at 59). [36] In short, the Chambers judge’s limited reasons give rise to the concern that he may have applied the common law definition offraud. b.

Case law pertaining to fraudulent concealment as a common issue [37] Having said that, the case law recognizing fraudulent concealment as a common issue in institutional abuse cases is limited. InT.L. #1, the plaintiff put forward fraudulent concealment as one of the common issues. Justice Slatter (as he then was) initially dismissedthe application for certification, giving the plaintiff additional time to address matters that he (Slatter J.) had raised.

In the course of hisreasons, he endorsed fraudulent concealment as a common issue: [115] There is however one aspect of the limitations argument that is amenable to common determination. As previously noted … thereis an argument that the claim of any class member over the age of 28 is barred. Such a class member will have to demonstrate eitherfraudulent concealment of the cause of action, or disability. Disability is an individual issue that is not amenable to commondetermination. The same would apply to any fraudulent concealment of the claim of an individual class member.

However, the argumentthat there was systemic fraudulent concealment is amenable to common determination, and the following common issue is appropriate: Did the Defendant operate the Child Welfare system at any time between 1966 and 2004 in such a way as to fraudulently conceal anybreach of duty by it to the class members? The determination of this common issue will avoid repetitive factual finding and legal analysis.

Again, if the question turns out to beunworkable, it can be withdrawn. (Emphasis added.) [38] Justice Thomas, in a later application, certified the appellant’s proposed class action with fraudulent concealment as acommon issue: T.L. v Alberta (Child Welfare), 2008 ABQB 114, 408 DLR (4th) 661 [T.L. #2], aff’d 2009 ABCA 182, 457 AR 141 [T.L.CA]. On an appeal from Thomas J.’s decision, the Alberta Court of Appeal noted that Thomas J. had “adopted the reasons of Slatter J.”(T.L. CA at para 3).

The Alberta Court of Appeal went on to dismiss the appeal from certification saying this in relation to the commonissues: [30] The reasons of the Chambers judges, read as a whole, demonstrate that they were alive to the individual issues arising in this case.They concluded that, on balance, there were a sufficient number of common issues, the resolution of which would move the litigationforward for the class.

Included in the latter category is the common issue of limitation periods. [39] Notably, fraudulent concealment was unsuccessfully raised as a common issue in the later decision of W.P. v Alberta, 2013ABQB 295, 563 AR 32 [P.W. #1]. There, the plaintiffs were former students of the Alberta School for the Deaf. They alleged that theyhad experienced sexual and physical abuse. In the P.W. #1 decision, the Court applied its formulation of the test for fraudulentconcealment and ultimately found there was no evidence to support it.

Regarding what constitutes fraudulent concealment, the Courtwrote the following: [33] The Plaintiffs must first show that Alberta committed some type of fraud. Fraudulent concealment requires an element ofunconscionability, which can include an active concealment or a failure to disclose: Ambrozic [2008 ABCA 194], at para 23.

The Courtin Ambrozic also held that the defendant must know of the wrong, otherwise they are protected by statutory limitations: at para 23. … [38] For such evidence to prove fraud, there must also have been “some abuse of a confidential position, some intentional imposition, orsome deliberate concealment of facts”. (Halsbury’s, 4th ed., vol. 28, para. 919, at p. 413, cited in M(

K) v M(H), (SCC),[1992] 3 SCR 6 (at para 65).) In other words, the plaintiff must establish some element of unconscionability in a special relationshipbetween the parties: Kitchen v Royal Air Forces Association, [1958] 2 All ER 241 (CA) at p 249. In Huet [2000 ABCA 97], at para 35,

the Court noted that lack of malice or dishonesty may not be necessary and that: Such unconscionable conduct could be a defendant’s active concealment of some wrongdoing, or it could be his passive failure to informthe plaintiff of some wrongdoing he knowingly or recklessly committed: Wilson v. McDonnell Douglas Canada Ltd. (1985), (ON SC), 4 C.P.C. (2d) 197 (Ont. S.C.). The Alberta Court of Queen’s Bench then examined each of the acts alleged by the plaintiffs to determine if they constituted fraud forthe purposes of fraudulent concealment.

It concluded that no fraud had occurred. [40] In P.(W.) v Alberta (No 2), 2013 ABQB 296, 563 AR 47 [P.W. #2], it could be said that the Court did not certify fraudulentconcealment as a common issue because the Court in P.W. #1 had held that there was no evidentiary basis for the doctrine to apply.However, in P.W. #2, the Court stated as follows: [66] In the

summary judgment application I held that the representative claimants were unable to establish an evidentiary basis for theclaim of fraudulent concealment. These Reasons are provisional in the event that decision were successfully appealed. However, onecannot predict the basis of such a hypothetical appeal. Had I not summarily dismissed the Plaintiffs’ claims that Alberta fraudulentlyconcealed the cause of actions, I might have found that this was a common issue; it raises a question of whether there was a systemicapproach to concealing the injuries alleged.

Unless and until there is a successful appeal, it remains premature to reach a final conclusionon the issue. (Emphasis added.) [41] The emphasis on a systemic approach with respect to the concealment is noteworthy. It is a logical modification to thedoctrine of fraudulent concealment in a class actions context, if a certification judge were to find that fraudulent concealment could formthe basis of a common issue. Nevertheless, the comment in P.W. #2 is obiter. P.W. #2 was written in the event that P.W. #1 wassuccessfully appealed.

P.W. #1 and P.W. #2 were appealed, but the Alberta Court of Appeal dismissed the appeal from the refusal tocertify without commenting on paragraph 66 of P.W. #2 (the fraudulent concealment paragraph).

The appeal of the decision to grantsummary judgment was dismissed such that the appropriateness of the fraudulent concealment issue was not considered further: see P.(W.) v Alberta, 2014 ABCA 404, 378 DLR (4th) 629, leave to appeal to SCC refused, . [42] It is not clear from the Chambers judge’s reasons that he was aware of the above discussed case law and, if so, whether itplayed any role in his conclusion that there was no evidence of fraudulent concealment. c.

Statement of no evidence [43] A statement that there is no evidence to support a proposition can give rise to a question of law, permitting a court of appeal todetermine whether there is, in fact, some evidence. As the appellant points out, the following must count as some evidence. For example,both Ms. Kequahtooway and Mr. Safioles swore there was no complaint system. Mr. David Dickson, another former Centre resident,averred there was no way to complain. A former employee, Ms. Lorri Matthewson, described how staff discouraged complaints aboutabuse.

When she reported abuse, there was no investigation and she was instead told she could be replaced. When residents complainedof mistreatment, “it was treated as a behavioural problem and dealt with accordingly” (affidavit of Ms. Matthewson at para 33).Ms. Matthewson also described rumours of sexual abuse and the Centre’s lack of reaction. [44] The issue for the Chambers judge was whether this constitutes evidence of fraudulent concealment and whether it is sufficientevidence to satisfy the requirement of Rule 3-93(2)(

b) of The Queen’s Bench Rules, which requires the plaintiff to provide swornevidence as to “the reason the proposed representative plaintiff believes that common issues exist for the rest of the members of theclass”. [45] The question for this Court is whether we should now weigh this evidence to determine its sufficiency. As I will indicate laterin these reasons, it is my view that such a task must be undertaken by a certification judge and in the context of the applicability offraudulent concealment as a common issue in this case. C.

Preferable Procedure Determination [46] These are the reasons put forward by the Chambers judge for not finding the class action procedure to be preferable unders. 6(1)(d): (

a) the common issues put forward by the appellant are not useful (para 27); (

b) since no viable proposal had been put forward for common issues, a class action proceeding is not “likely to produce a fair,efficient and manageable method of advancing the claims” (at para 27); (c) “the complexity of these institutional systemic abuse cases defy class action litigation” (at para 27); (d) “[t]he issues of causation, limitation periods, damages, etc. seem better suited for individual cases” (at para 28); and (

e) the appellant had not discharged the onus upon her “to establish a class action would be the preferable procedure …” (atpara 29).

As well, while he was careful to avoid “presenting an immutable principle that all institutional cases should not be certified” (at para 29),the concerns expressed in such cases as Rumley v British Columbia (Government), 2003 BCSC 234, 12 BCLR (4th) 121, and T.L.#1,militated in his judgment against a class action as being the preferable procedure (at para 29). [47] However, Fischer is now the controlling authority on the issue of preferability.

Justice Cromwell, writing for the SupremeCourt, described the appeal as providing the Supreme Court with the opportunity to elaborate upon the analytical approach topreferability outlined in Hollick.

Importantly, the Supreme Court stated that “the preferability analysis is not solely focused onprocedural considerations but must, within the proper scope of the certification process, consider both substantive and proceduralaspects” (at para 4). [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 usefulto consider 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(Div Ct), 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 (DivCt), 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 Phaneuf Certificationdecision).

The certification of the class, however, was overturned for a variety of reasons, most particularly, for failing to disclose acause of action (Phaneuf CA at para 27). [53] In my respectful view, in the case at hand, the Chambers judge became preoccupied by the number of individual issues ratherthan determining whether a class proceeding would be the preferable procedure. It is not apparent that he considered the access to justiceaspect of this case. [54] This does not mean that, at another hearing, a Chambers judge might not come to the same conclusion.

Preferability will haveto be considered, taking into account the factors now set out in some detail in Fischer regarding access to justice (particularly as it relatesto the vulnerability of the class). D. Overall Approach to Certification [55] The courts have held that the analysis of the statutory criteria necessarily overlaps, but it is, however, equally clear thatdistinct tests and approaches have been developed to assess each of the statutory criteria set out in s. 6 of the Act.

Put another way, acertification judge who combines the analysis of the different criteria – for example, common issues and preferability – errs in principleif this approach means the correct test for each is not applied. This is what appears to have occurred here. [56] Since the Chambers judge’s discussion of common issues took place during his preferability analysis, he did not actually

apply the test for assessing the issues; rather, he simply considered whether they were “useful in this case” (Certification Decision atpara 27), concluding they were not useful in light of the many individual issues. The Chambers judge did not complete his assessment ofthe common issues before considering preferability: at which point, he said he was “not persuaded that the issues put forward by theplaintiff are useful in this case”.

By conducting part of his common issues assessment at the preferable procedure stage, the Chambersjudge approached the common issues criterion without regard for the relevant legal test, which is whether any given common issuewould advance the litigation. [57] To be sure, one component of the preferability analysis requires a court to weigh the common issues with the significance ofthe individual issues that would still require individual trials for resolution after the common issues trial.

Such analysis, however, cannotbe undertaken without first accurately identifying the common issues and the class of potential claimants. If, for example, a judgeaccepts only a single common issue, and numerous individual issues remain, this may be a factor that suggests judicial economy is notserved by proceeding on a class action basis.

If a certification judge in this case were to accept three additional common issues, thebalance between common issues and individual issues changes and may do so to the extent that a class proceeding will resolve thematters more efficiently. [58] Rather, the Chambers judge’s approach to the resolution of the common issues criteria appears to have influenced hisresponse to the preferability question.

A certification judge’s conclusions, with respect to the class definition and the common issues,have a direct bearing on the preferability assessment, specifically in relation to the weighing of the common versus the individual issues. [59] Further, there is jurisprudence that, while not binding, is persuasive with respect to class proceedings being preferable toindividual actions in institutional abuse cases: Cloud v Canada (Attorney General) (2004), (ON CA), 192 OAC 239(CA), leave to appeal to the SCC refused, [2005] SCCA No 50 (QL); Cavanaugh v Grenville Christian College, 2014 ONSC 290 (DivCt); and Elwin v Nova Scotia Home for Coloured Children, 2013 NSSC 411, 339 NSR (2d) 35.

E. Remedy [60] In my respectful view, the errors that I have identified require this Court to intervene on the basis of the standard of review setout in Fischer: “deference does not protect the decision against review for errors in principle which are directly relevant to the conclusionreached” (at para 65). Additionally, the Chambers judge did not situate the necessary analysis “in the context of the leading case law in[the] area” (Ross 2018 at para 81). [61] The remaining matter to address is what this Court should do in terms of remedy.

Does the Court decide the issues or returnthe matter to the Court of Queen’s Bench for determination? In my view, neither party should be deprived of an opportunity to re-make acase for and against certification. [62] There are three errors that require that this appeal be allowed: (

a) the Chambers judge did not complete his common issuesanalysis before considering whether a class proceeding would be the preferable approach to resolving the disputes, (

b) when heconsidered preferability, he did not situate his analysis in the case law where institutional abuse claims have been certified, and (

c) he didnot consider the effect of Fischer as to whether a class proceeding should be certified in this case. [63] To be sure, it can also be said definitively that he erred by rejecting out of hand that punitive damages could never be certifiedas a common issue. But, if other common issues could not be certified, or if his decision on preferability could have been affirmed, suchan error would not result in the appeal being allowed.

Similarly, I have identified what appear to be errors in relation to the identificationof the class and the refusal to certify fraudulent concealment as a common issue but, again, if the action could not be certified as a classaction, any errors made in relation to these issues would not require that the appeal be allowed. [64] To be clear, my comments in relation to the Chambers judge’s reasons are not directed to a particular result.

The Governmenthas made a number of arguments related to the breadth of the class, the workability of the common issues, the preferability of a classaction, and – perhaps, most importantly – the vulnerability of the class.

In its factum, for example, the Government asserts that, given thevulnerability of the plaintiffs, they “would be much better served by individual actions alleging all causes of action available to them,including vicarious liability for battery” and that “[b]attery claims can benefit from an exemption from limitation periods by operation ofs. 16 of The Limitations Act, and avoid the pitfalls in attempting to prove causation from a ‘systemic’ breach that may or may not applyto a particular individual’s circumstances” (at para 135).

As I have attempted to point out in the preferability analysis, the vulnerability ofthis class may also be a factor pointing in the direction of certification. [65] Further, in order for there to be a proper disposition in relation to the identification of the class and the appropriateness offraudulent concealment as a common issue, additional argument is required. [66] Having regard for these concerns, I have concluded that the matter should be remitted to the Court of Queen’s Bench for afurther certification hearing. [67] It may be that, once this matter is considered again, a question will arise about the immutability of the decisions already takenin Safioles.

I mention, in particular, the decision to approve all aspects of the litigation plan, including the determination as to whether itsufficiently addresses the vulnerability of the class. In my view, the seeming approval of the litigation plan should not prevent changesbeing made to it, if the certification judge is of a mind to certify. VIII. Conclusion [68] The appeal is allowed and the matter remitted to the Court of Queen’s Bench. The appellant specifically requested that costsought not to be ordered, regardless of the outcome. Therefore, there will be no order as to costs.

“Jackson J.A.” Jackson J.A. I concur. “Jackson J.A.” for Ottenbreit J.A. I concur. “Whitmore J.A.” Whitmore J.A.