November 2022 | Article

Disadvantages of historical sexual abuse class actions, part two

The Lawyer's Daily

Class actions aim to achieve judicial efficiency, increase access to justice for those with claims that may not have been pursued otherwise and modify the behaviour of those whose actions affect many people. Part one of this series looked at class proceedings in historical sexual assault cases. Part two will examine individual actions for sexual assault.

Contrary to suing as part of a class action, if survivors of historical institutional abuse sue in individual actions with their own lawyer, the damages are much greater and can be in the six-figure range. In several cases, compensation of between $100,000 and $200,000, or more, was awarded at trial (see D.W. v. Canada (Attorney General) [1999] S.J. No. 742; E.B. v. Order of the Oblates of Mary Immaculate in the Province of British Columbia [2001] B.C.J. No. 2700; T.W.N.A. v. Clarke [2001] B.C.J. No. 1621 and W.R.B. v. Plint [2001] B.C.J. No. 1446). In individual cases, personal injury lawyers often work on a contingency basis, taking a percentage of the damages recovered. This means abuse survivors do not have to pay legal fees up front or as they go along.

There are other, even bigger problems with class actions for abuse in institutional cases; namely, notice and opting out. Class actions are commenced by a representative plaintiff bringing a motion to the court to have the class action certified. Once this is done, the court sets a procedure to ensure that all those who are members of the class and are entitled to compensation are notified and are given the right to opt out in order to maintain the right to pursue an individual lawsuit in the future.

Class members opt out by coming forward and saying they do not want to be part of the class action. A time limit is set and if class members do not opt out by the specified date, they are deemed to be included in the class. 

Next, a trial of the common issues (often “liability” or legal responsibility is a common issue) takes place, and after the trial of the common issues, there are individual damages trials. At this point, class members must come forward and pursue individual claims for damages. If they fail to do so, they are forever prohibited from pursuing compensation. The only way they can pursue an individual lawsuit is if they come forward before the opt-out deadline and follow the procedures set out by the court for opting out at the beginning of the class action. If they do neither, they get nothing.

Sexual abuse survivors usually suffer serious psychological problems as a result of their abuse in childhood. There are also well-established links between childhood sexual abuse and substance abuse problems, problems with education, employment and criminal activity later in life. Many abuse survivors become homeless, move around the country or are “off the grid.”

In addition to the long passage of time in historical abuse cases, these other problems can make it difficult, if not impossible, to reach significant numbers of victims when the judicial notice of the class action is given. If a class member does not receive notice, he or she has no opportunity to opt out, and his/her right to seek compensation, or to be heard and acknowledged, will forever be lost.

Even if class members do get notice of the class proceeding, the opt-out procedure in class actions is especially troublesome in historical sexual assault cases. It often takes abuse survivors 20, 30 or 40 years — sometimes even longer — to come forward. There are many reasons why sexual abuse survivors do not come forward, including misplaced shame, guilt, fear, or simply to avoid thinking about and confronting the horrendous pain they suffered.

The importance of allowing abuse survivors to come forward in their own time was recently acknowledged by the Ontario government when it enacted Bill 132, amending the Limitations Act, 2002 to eliminate limitation periods for cases based on sexual assault. This amendment sends a clear message to abuse survivors that validates the significance of their claims and that justice should not be rendered unavailable to them simply because it took them more time beyond the limitation period to confront the issue legally.

The elimination of limitation periods provides more access to justice for abuse survivors. Conversely, class actions for historical sexual abuse claims require survivors to come forward and opt out, or risk forever having their claims extinguished. In my view, any law or rule that requires an abuse survivor to come forward at a specific time is potentially harmful and contrary to the public interest expressed by the Ontario government in amending the Limitations Act.

In order to exercise the right to opt out and preserve the right to bring an individual claim for damages, an abuse survivor is required to do all of the following: 

  • They must receive the notice;
  • They must understand the notice;
  • They must be ready to admit to themselves that they have been abused and be willing to admit to strangers that they have been abused;
  • They should obtain legal advice about whether an individual action or a class action settlement is a better option for them;
  • They must make the decision about which is a better option before they know what the settlement will actually be; and
  • They must send a letter or complete a form to be sent to the class action lawyer to exercise their right to opt out. 
For the average person, being told they are part of a lawsuit they knew nothing about and having to follow this process is bewildering. Imagine the distress for an abuse survivor who is not ready to admit to themselves that they are a survivor of childhood sexual abuse, let alone tell anyone else about it.

One of the goals of class actions is judicial economy. Now that the law of vicarious liability is clear, we know institutions are liable for assaults committed by employees in residential care facilities. This is not a significant common issue. Where there are significant common issues, such as whether the government or school is the proper defendant, a class action may be appropriate to determine that discrete issue. However, where it is clear who ran the institution, then the real issue comes down to whether a particular individual was abused, and what the amount of their losses and damages is.

In such cases, there is no significant judicial economy achieved by certifying the case as a class action. My co-counsel Sabrina Lombardi and I are the only lawyers in Canada who have actually taken a historical abuse class action to a common issues trial. In Cavanaugh v. Grenville Christian College [2020] O.J. No. 1354 there were legitimate common issues.

This case was defended on the basis that the conduct the plaintiffs characterized as psychological abuse did not breach the duties owed to the students. That issue needed a classwide determination to avoid each plaintiff having to try it over and over, and therefore, it was appropriately brought as a class action.

It is usually in an institutional defendant’s interest to have a class action. In Ontario, if a historical institutional abuse class action is certified, the defendant will enjoy the opportunity to pay pennies on the dollar for those who come forward and collect damages under the class proceeding. To the extent that the money they have put up as a settlement fund is not actually paid out, it is usually returned to the defendant. 

As well, for all other abuse survivors who have not come forward to collect their money under the class action and have not already opted out, the defendant enjoys the benefit of having all those claims extinguished, which minimizes their liability to pay what would otherwise have been valid claims.

This is part two of a three-part series. Part three will discuss amendments to the Ontario Class Proceedings Act and more cases. Part one: Disadvantages of historical sexual abuse class actions.

Loretta P. Merritt, of Torkin Manes LLP, is one of the few lawyers in Ontario who has substantial experience in dealing with abuse and harassment in civil lawsuits and employment cases.She has represented hundreds of clients in a variety of historical and recent sexual and physical abuse cases. Merritt’s civil litigation practice also includes traumatic injury litigation (motor vehicle cases, medical malpractice and product liability).

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