As a plaintiff-side sexual abuse lawyer, when I read news articles about survivors receiving large settlements, I'm usually delighted. Survivors deserve to be compensated for the pain, suffering, and other losses they experienced as a result of the sexual abuse they experienced.
Since only a fraction of sexual violence is ever reported, and an even smaller fraction of sexual assault and abuse cases result in criminal charges and convictions, civil lawsuits are often one of the best and only ways survivors will achieve a sense of justice.
But in reading about a $15.77-million class action settlement (subject to court approval) reached by plaintiff lawyers representing about 40 survivors against a defendant, the Calgary Board of Education (CBE), I couldn't help but feel a gnawing concern. While I'm absolutely thrilled for these survivors, I am concerned that news of this success might embolden lawyers to pursue class actions for sexual assault and sexual abuse cases. If they did, it would be to the detriment of survivors.
Sexual assaults and sexual abuse are the most personal of personal injuries. Victims of sexual violence frequently have needs that differ from victims of other types of personal injuries that may be more suited to class actions. In some cases, survivors who participate in class actions without being properly educated and informed of how they differ from individual lawsuits may feel a sense of powerlessness by being lumped into a group of class members.
At the risk of being a "Debbie Downer," in this blog post I explain why sexual assault or l abuse survivors should carefully consider participating in a class action lawsuit if they learn they are one of multiple victims of a perpetrator. While survivors may ultimately decide that participating in a class action is the right choice for them, they should always first seek independent legal advice so that they can make an informed decision.
Choosing the Right Legal Procedure.
In many civil personal injury matters, an individual plaintiff will issue a statement of claim against one or more defendants. Sometimes, when many people have sustained the same or similar types of injuries, they may decide to organize their claims into a class action or advance individual claims as part of a co-ordinated mass tort.
Both procedures offer certain advantages. Class actions allow people with modest claims the opportunity to seek compensation collectively when their individual claims may not justify the expense of individual legal proceedings (an example of this type of action is the widely reported Canadian bread price fixing class action settlement). Mass torts permit plaintiffs to advance individual claims but encourage co-operation and coordination to share critical information in a timely manner, to settle common questions of law, and to use case law as guidance for their own strategy.
There are some drawbacks and disadvantages that potential plaintiffs should consider before opting for one type of procedure over another.
Class Action Concerns for Abuse and Assault Survivors.
First, depending on which jurisdiction certifies a class action, you may be automatically considered a member of a class unless you formally "opt out" by a certain date. A ticking clock that requires a survivor to make a decision about participating can be an issue since sexual abuse and sexual assault cases are not usually bound by any such limitations until a plaintiff files notice of a claim with a court.
Many survivors already feel that a perpetrator has taken away their sense of autonomy and ability to control the direction of their lives, so arbitrary deadlines can be challenging. Why should potential class members be forced to make decisions about participating in an action, which may re-traumatize them? Best practice is to allow survivors to pursue a legal strategy that encourages the healing process: making decisions for themselves only when they are ready and having the capacity to pause or withdraw their participation in a case if their personal circumstances and needs change.
Second, class actions are like participating in team sports. Once you're a member of the team (or class) you win or lose together. However, unless you are a representative plaintiff for a class, your individual circumstances will not factor into how the matter plays out in settlement negotiations or preparations for a trial. For some survivors, having their day in court and achieving a sense of justice requires the defendant to answer for the harm done to them personally. This may not be possible in a class action.
Third, while class members do have a say at certain points in an action, they are one voice among many. If they discover that they disagree with the direction counsel is taking or approve/oppose a settlement offer other members of the class look at differently, they will still be bound by whatever ultimate decision is reached.
For example, my colleague Simona Jellinek has written about what she and other sexual abuse plaintiff lawyers viewed as an ill-conceived class action involving Crown wards against the Government of Ontario for failing in its duty to advise them of their rights to make civil claims and seek administrative remedies from the Criminal Injuries Compensation Board for abuse they experienced.
Not only were some Crown wards under the mistaken impression that they would be compensated for the abuse itself (rather than simply the loss of their right to apply for certain compensation), but legal counsel for the class negotiated a settlement that amounted to a paltry $3,000 per class member. Fortunately, enough class members expressed outrage at what they viewed to be "a slap in the face," that the presiding judge refused to approve this settlement. Moreover, in response to counsel's explanation that class members could still advance abuse claims outside of this action, the judge noted that counsel "argued throughout the certification process that the Crown wards are entitled to damages arising from the Crown's failure to seek timely compensation for them." She wrote: "It is astonishing, now, to hear class counsel submit that Crown wards would have a faster recovery by proceeding with individual claims."
Was a Class Action Best Suited for Calgary Survivors?
Given the potential drawbacks of class actions as legal vehicles for assault and abuse claims, why was it used in the case against the Calgary Board of Education?
The road to class certification for this matter was not straight forward. Initially, three named plaintiffs were proposed as representatives for various classes of plaintiffs. When there was a change in counsel not long after the claim had been filed, lawyers for the new firm began preparing for mediation on behalf of class members. However, when the board "pulled the pin" on mediation just days before it was scheduled to begin, class members were left devastated.
In the absence of meaningful negotiations to settle the matter, the lawyers announced they would apply to decertify the case as a class action to permit plaintiffs to pursue their cases individually and to allow a judge to decide on a case-by-case basis what damages they were entitled to.
Two factors later prompted the plaintiff lawyers to propose continuing with the class action. First, David Corrigan, lead counsel for the plaintiffs, said there was a dispute about whether the board's vicarious liability could be a common issue or if it needed to be dealt with individually in each case that was part of a mass tort action.
"Of course, we were very opposed to any approach that would see vicarious liability need to be established separately for each claimant," Corrigan explained to Law360 Canada. "The duplication of witness testimony, together with the possibility of disparate factual findings by different triers of fact made separate trials on this issue very problematic."
Second, although the judge noted that some subclass members may be outliers "whose evidence of abuse is so far outside the common circumstances of these students that they would need to be considered individually," on balance the interest of justice favoured a class proceeding in this particular matter because "there is a demonstrated need to assist these vulnerable class members with the adjudication and resolution of these claims, [and] while now all adults there is ample evidence that many of them have not fared particularly well and would be hard pressed to prosecute these actions individually."
In this case, different subclasses of plaintiffs would allow plaintiffs who experienced different lengths of abuse and differences in alleged abusive behaviours to be grouped together for the purposes of damages calculations.
Careful Consideration.
In this instance, both the plaintiff counsel and judge carefully considered the unique needs of participants and came to the conclusion that while a mass tort action may be a preferable procedure for many/most sexual abuse/assault cases, a position taken by the defendant on a question of law would make that problematic. Additionally, given that a significant number of victims would have difficulty sustaining individual actions, the defendant might find it advantageous to continue litigation against them individually instead of seriously entertaining settlement discussions.
"The existence of the disagreement between the CBE and our office can perhaps be blamed on the fact that cases such as this one may not be perfectly suited for either a class action or a mass tort approach," Corrigan told Law360. "That said, [Alberta's] Judicature Act provides the court with sufficient flexibility to ensure a sensible approach is taken. We are grateful that Justice Hollins elected the pragmatic approach in this case."
This thoughtful approach is essential when dealing with vulnerable plaintiffs. Unfortunately, not all lawyers understand why class actions are often an uncomfortable fit for survivors. Moreover, many people who want to pursue a predator in civil court may not think or know the type of action they take part in will make much of a difference in their lived experience during proceedings.
Survivors who are alerted that they may be eligible to participate in class proceedings should always seek independent legal advice from an experienced sexual assault and sexual abuse civil lawyer. Participating in any kind of court action brings potential benefits, but also challenges. If you are signing up for a claim that may take years to resolve, you will likely want to know about what to expect so that you can prepare yourself and your loved ones.
As trauma-informed lawyers practising in a firm working solely for survivors, my colleagues and I have a wealth of experience to share with people who are interested in pursuing justice for the harm done to them by sexual predators. When you contact us for a no cost, no obligation initial consultation, we will listen to your story with great empathy, outline your options carefully, and offer trusted advice that always puts your needs first.
Whether you choose to continue to work with us or not, we always want to support your right to make an informed choice and regain control over the direction of your life.