Boarding school class action raises issues about systemic abuse

By LegalMatters Staff • A recent judgment that found a former boarding school breached the duty of care owed to its students provides several key takeaways, says Toronto class-action lawyer Margaret Waddell.

In Cavanaugh et al. v. Grenville Christian College Justice Janet Leiper ordered that the school must pay yet-to-be-determined damages to former students for knowingly creating “an abusive, authoritarian and rigid culture which exploited and controlled developing adolescents who were placed in its care.”

Waddell, a partner with Waddell Phillips Professional Corporation, called the judgment “bang on,” saying it dealt correctly with the issue of institutional abuse.

Systemic abuse claim

She tells LegalMattersCanada.ca that the main issue was whether the plaintiffs could claim systemic abuse when other students had said they had a good experience at the school.

“The defendants were looking at the issue of systemic negligence from too granular a perspective. You need to examine what was going on at the school as a whole,” Waddell says. “It’s not OK just because some people came out of this system unscathed when there are others it seriously harmed.”

“The judge dealt with that very nicely by saying individuals will have different levels of resiliency and different human experiences, but that it doesn’t mean there wasn’t systemic abuse and a failure by the school to meet the fiduciary duty owed overall to the students.”

The plaintiffs told the court the abuse took place between 1973 and 1997 and included “injurious and painful corporal punishment, humiliating, isolating and demeaning disciplinary practices, intrusive and sexualized ‘confessions’” that were out of line with educational standards of the day. Experts confirmed that this conduct fell below the standard of care for a boarding school during that time.

Waddell says the decision provides a good illustration of both vicarious liability and institutional liability.

Would predominance test be met under changes?

She notes, however, that this action is also “a perfect example of a case that might never have gotten certified” under the proposed predomination and superiority requirements in the test for certification under the amendments to the Class Proceedings Act, 1992 proposed in Bill 161.

Her firm joined four other leading class-action firms in making submissions to Attorney General Doug Downey and the Standing Committee on Justice Policy expressing their opposition to the changes.

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“Bill 161’s predomination test would require that the issues in common to a class proceeding — such as whether a medical device manufacturer fell below the appropriate standard in its design or manufacture of a product — exceed the issues to be determined individually, after the completion of the trial of the common issues – such as the assessment of each class member’s injuries. We are concerned that this could fundamentally change the test for certification,” the letter states.

“Until now, in all jurisdictions in Canada, the existence of sometimes complex individual issues — such as whether a person’s health issues were caused by the medical device and are compensable at law — does not bar a class action from being certified, as long as a judge finds that the common issues will substantially move the case forward, the case overall is manageable, and that certification is consistent with the principles of access to justice and judicial economy, among other things.”

Bill 161 could alter the dynamic

The five law firms contend that “Bill 161’s mandatory predomination requirement could fundamentally alter this dynamic.”

“If we were in a world where superiority and predominance were applied at the certification stage you would have to look at every person and assess each individual’s experience and their own damages. Cavanaugh probably wouldn’t have gotten out of the gate,” Waddell says. “And now we know there was systemic abuse and there were horrific practices going on and that people suffered real harm and damages.”

The proposed requirement would force many potential plaintiffs into making individual claims, which comes with several consequences, she explains.

“There are huge barriers to access to justice that arise when you are dealing with individual claims – leaving aside the psychological barriers to take on the institution that ruined your life, which would be enormous,” Waddell says.

“You’ve got the challenges of becoming a plaintiff in your own action and the risk of having to carry all of the costs that would be associated with aspects of the case such as retaining experts,” she adds.

Waddell says it is not only the expense of going alone both financially and emotionally that may deter some from seeking justice.

‘Serious barriers’

“Those are serious barriers and even if they do have the fortitude to start an action, it could be difficult to find a lawyer prepared to take the kind of risk that would be involved with dealing with this kind of case on an individual basis,” she says.

Waddell also points out that proceeding by class action – such as the boarding school instance – allows the court to deal with many victims at once. Dealing with each case individually could overwhelm the judicial system.

“If everybody who is supposed to be in class actions now has to go it alone, we’ll be looking at trials decades in the future,” she says. “The system will just become completely clogged.

“We don’t have the physical space, we don’t have the judges and we don’t have the resources to support thousands of more serious injury claims entering our system. That’s what the legislation is inviting,” Waddell adds.