As a lawyer with practice focussed on sexual abuse and sexual assault, I’m used to feeling angry. Usually that anger is born out of hearing how an individual and/or institutional abuser has harmed a survivor, but sometimes it’s an aspect of the legal system that draws my ire.
One such aspect is a class action brought on behalf of Crown Wards under the care of the Children’s Aid Society (CAS) against the Ontario government. This case started in 2014 and there has been much confusion and anger around this lawsuit.
In this blog post, I’ll explain why there is such frustration with how this lawsuit has proceeded, why there is now renewed hope for a better outcome, and what both members of this class action and individuals who have opted out of it should know about their right to sue for additional compensation.
Confusion About The Claim and an Inadequate Proposed Settlement.
When conceived and facilitated properly, class actions can be a useful tool to help many potential plaintiffs access justice. By pooling resources and sharing risk, this form of legal proceeding allows many people to take part in an action against a well-funded defendant when only a fraction of potential class members would likely otherwise opt to pursue a claim.
However, I’ve written previously about why I believe class actions are generally not a good fit for sexual abuse cases.
From the Sixties Scoop to the Waterville Correctional Centre in Nova Scotia, class actions generally implement a one-size fits all approach on survivors with vastly different experiences. Moreover, the requirement that a potential class member must “opt-out” of proceedings by an arbitrary date takes an element of control out of the hands of survivors. Finally, when dealing with many different class members, there is greater potential for miscommunication or confusion about what the action is (and is not) seeking to accomplish on behalf of class members.
The Crown Ward class action was launched against the Government of Ontario alleging that it had failed in its duty to advise people who were Crown Wards from January 1, 1966 to March 30, 2017 of their rights to make civil claims and seek administrative remedies from the Criminal Injuries Compensation Board (CICB) and, when appropriate, to facilitate or pursue those claims/remedies for Crown Wards.
For many lawyers that practice in the area of childhood abuse (and especially in child welfare cases), the class action was ill-conceived from the start.
Apart from the general concerns around sexual abuse class actions, this case seemed particularly superfluous. It made little sense given that in law, the Ontario government was rarely liable for the childhood abuses, at the time this class action was certified people could still apply to the CICB for compensation, and in practice the limitation periods that barred historical cases from making a claim to the CICB were rarely, if ever, a concern because lawyers could make the argument that claimants were not aware of the limitation nor usually in a situation where they could act on their own in the exceptional event that they were aware.
Many potential class members thought, rightly so given the allegations in the statement of claim and the communications around the class action, that the class action was to achieve compensation for the criminal acts they suffered before and during care. They believed they would be compensated for their childhood physical and sexual abuse even if that abuse occurred at the hands of their foster families. This was not the case, however.
The case progressed and eventually there was a proposed settlement of the class action. After legal fees and payments to the representative plaintiffs, each class member would be given approximately $3,000 as compensation under the settlement.
As you can imagine, there was a huge uproar at this proposed settlement amount, and upwards of 60 class members attended the settlement hearing in 2021 to demand justice. The proposal was rejected out of hand by the judge overseeing the case. The judge came to her decision after listening to an overwhelming number of objections from class members, some of whom wept in court while recounting the terrible abuse they suffered. A common refrain from class members was that the proposed settlement was “a slap in the face.”
During the hearing for the settlement approval, the lawyers for the class action argued that the claim was never about compensation for the abuses, notwithstanding the allegations made in the statement of claim, but only to compensate for the fact that the Ontario government did not pursue actions or applications for those abuses.
One lawyer from the firm originally acting as class counsel explained to a reporter that: “For some class members, the abuse they experienced is their primary focus, but this case is not about the responsibility for causing the abuse.” This distinction is splitting legal hairs, and it was inadequately communicated to potential members of the class both as individuals and as a whole.
The court wisely did not accept the settlement proposal and the lawyers were sent back to the negotiations table.
New Representation for the Plaintiff Class, Renewed Publicity Over Options for Survivors.
A recent change to the plaintiff class counsel not only gives me hope for a resolution to this claim that is acceptable to a majority of class members, but also that all persons who suffered childhood abuse and childhood sexual abuse while in the care of CAS will come to better understand their right to make individual claims.
Margaret Waddell of Waddell-Phillips PC, who is regarded as a leading lawyer in the class action field, has assumed the role of plaintiff class counsel. I’ve come to know Margaret professionally through years of practising law, and I believe she has the skill, knowledge, and empathy to make a positive difference for class members and to make the best of what can be made of this class action.
Moreover, in speaking with Margaret, I’m reassured and relieved to learn that she plans to publicize and promote the variety of options members of this class (and any other CAS abuse survivors) have to initiate individual claims against their abusers and/or the CAS chapter that oversaw their time in foster care.
What Do Survivors of Abuse While in CAS Care Need to Know?
It’s frustrating to think that some members of this class action may not yet realize these proceedings are not the only tool at their disposal to seek compensation for the harm they experienced while in care. Others, who have been disappointed in the past by lawyers or the legal system in general, may be wary of putting their trust in court action again.
It’s my hope that this blog post, along with the efforts of Margaret and others to promote awareness of your options, will demonstrate that there are lawyers out there who are ready to support you whenever and however you choose to seek justice.
The class action is only to pursue compensation for the fact that the Ontario government did not bring claims or applications in a timely manner. At the time this class action started in 2014, in my opinion this was not a viable or worthwhile claim. However, given that the Ontario Government disbanded the CICB in 2019 and survivors can no longer apply for compensation from it as individuals, this class action’s claim is now certainly worth pursuing.
Compensation through the CICB, when it was operating, was limited to a maximum of $25,000 plus some therapy costs. Hopefully any future settlement will be more reflective of this reality. Furthermore, the class action will also pursue compensation for poor record keeping or lost records that could hamper a survivors’ ability to bring an individual lawsuit – this is also a worthwhile claim.
The class action is not designed to pursue compensation from the people or institutions that perpetrated the harm. In other words, the class action is not suing for damages because a survivor was sexually or physically abused in the first place. Compensation for this kind of harm can only be done if a survivor pursues a lawsuit on their own. The compensation available for such lawsuits can be quite significant - often hundreds of thousands of dollars or more.
Here are a few key points to keep in mind when considering your position in this matter:
- The outcome of this class action has no bearing on your right to sue individual abusers or institutions such as the CAS, schools, sports leagues, or religious groups that facilitated the abuse you experienced while in care. It only involves a specific claim against the Government of Ontario and are limited to the government not advising you or helping you pursue the claims.
- Even if the class action settles and you get compensation through the class, this will not stop you from suing for the physical and sexual abuse you suffered.
- There are no statutes of limitations that will bar a civil claim made by a person who experienced physical or sexual abuse as a minor. You can choose if and when you want to sue, and you can (usually) opt to pause or end proceedings if you change your mind. A sexual abuse lawyer can explain whether there may be any factors (such as an abuser’s advanced age or recent death) that could have implications (such as making a claim on an estate).
- Most reputable sexual abuse lawyers will offer a free, no obligation initial consultation to discuss the unique aspects of your case and questions you may have. Many sexual abuse lawyers work on a contingency basis. Therefore, if you choose to make a claim while represented by one of these lawyers, you will only pay legal fees if they are successful in winning a court award or negotiating a settlement that you personally approve.
- Some lawyers with a practice focus on civil sexual abuse and assault cases, such as Jellinek Ellis Gluckstein, use a trauma-informed approach to engage with survivors. We understand what trauma can look and sound like, and we tailor our approach to minimize the risk that a survivor will be re-traumatized.
My colleague Linda O’Brien has written a blog post that helpfully outlines details about the survivors who are reaching out to our firm, what kinds of questions they are asking, and how we go about investigating abuse and building a case in order to make a claim. We also have a podcast about the process of helping survivors as well. It can be found here.
Full-Circle Compassionate Client Care.
I began this blog post by addressing a powerful emotion: anger. But, I’d like to conclude by touching upon other emotions I experience as I work with and for survivors. I am frequently in awe of their perseverance. I feel joy as I witness them regaining a sense of control and autonomy over their lives. And, when I learn that I have earned their trust, I am filled with profound gratitude.
At Jellinek Ellis Gluckstein, we are committed to full-circle client care. We endeavour to support our clients from the first meeting to the conclusion of their case, and beyond.
