When something is described pejoratively as being “the tip of the iceberg”, we understand that what we’ve just learned is a small portion of something much bigger that is still hidden from view. Institutional sexual abuse is like an iceberg - what we see is only a small part of the problem. The first reported cases are just a small part of the overall abuse and the damage it causes.
Recent reports of sexual abuse connected to a youth detention centre in Nova Scotia, dating back almost 30 years demonstrate just how truly apt this metaphor is. What began as one man approaching a lawyer about the abuse that he experienced (abuse that was apparently an open secret among other boys in the facility), snowballed into an announcement by the RCMP that more than 70 men have provided statements about related abuse to date.
All told, the police force suspects more than 200 people may have suffered abuse while at this facility. A lawyer involved in the case has suggested that the actual extent of the abuse may be even greater - more than double that number.
Unfortunately, as a result of a decision to file a class action on behalf of some of the first men to come forward, other persons who suffered abuse at the facility during this period who wish to take individual legal action against the perpetrator(s) of this abuse, and against any entity who facilitated the conditions that permitted this abuse to occur, may have lost that right.
All those with claims are now bound by certified class proceedings because the period to opt out of the class has passed. It is of important note that the opt out period for this claim ended in 2020, which is over 3 years ago, this incident only appears to be public now.
In this blog post, I discuss why class proceedings may not be appropriate for certain civil damage claims. This is particularly true for cases involving sexual abuse. I outline why individual claims (whether litigated separately or as part of a mass tort) are generally a better means for sexual abuse survivors to seek justice in a way that is sensitive to their particular needs and circumstances. Finally, I explain how the law leaves room for extending the opt-out period under certain circumstances.
A Long History of Sexual Abuse
In 2019, a class action lawsuit was filed on behalf of three men who allege that they were sexually abused by a swim instructor at the Nova Scotia Youth Centre colloquially known as “Waterville”. The men, who were between the ages of 16 and 18 at the time of the abuse, claim that they were sexually assaulted, experienced unwanted and sexual touching, and were improperly watched as they undressed in changing rooms.
The allegations in the statement of claim, which date from the time the youth correctional facility opened in 1988, prompted residents to make multiple independent reports of sexual abuse, sexual violence and misconduct. However, the suit alleges no effective action was taken. It claims that the province was negligent, and breached its fiduciary duty of care that was owed to the facility’s residents, by failing to protect their physical safety and emotional well-being.
In its statement of defence, the Attorney General of Nova Scotia denies most of the allegations that are set forth in the statement of claim. The defence, however, identifies the swim instructor at the centre of the suit’s allegations as being employed at the facility from 1988 to 2017.
Since the class action was certified, many more men (and so far only men) have come forward with reports of abuse. The RCMP’s investigation, known as Operation Headwind, has taken more than 70 statements from survivors, and more are anticipated.
It is of important note that the opt out period for this claim ended in 2020, which is over 3 years ago, and yet this incident only appears to be public now.
RCMP Sgt. Brian Fitzpatrick called the investigation the biggest he’s been involved with in his nineteen years of service on the force. He said that the “sheer size, the amount of information we need to process and eventually disclose, and the amount of survivor witnesses who we have to deploy investigators to interview across Canada”, makes the investigation especially challenging.
Many of the survivors have a complicated history with correctional services, and a large number had been in and out of prison since they were residents of the facility. These survivors are often reluctant to trust police because of past interactions.
One-Size Does Not Always Fit All
There is no such thing as “minor” sexual abuse, as any violation of personal autonomy can create trauma and result in far-reaching and varied consequences. Indeed, individual members involved in this class action undoubtedly experienced incidents that ranged in frequency, duration, intensity and severity. Nevertheless, all members of the class are treated the same for certain purposes in the proceeding.
First, in jurisdictions such as Nova Scotia and Ontario, potential members of the class must “opt out” by a certain date once the class action is certified by the court. If they do not opt out, they will be considered to be members of the class and will be bound by the outcome of the trial or any settlement that is negotiated, whether or not they agree with how the case was prosecuted.
A deadline, including an “opt out” requirement compelling survivors to do anything related to sexual abuse or assault, is NOT trauma-informed. Every survivor should have the ability to freely decide whether, when, and how they wish to pursue legal action against the individual perpetrator or against any entity involved in permitting or facilitating the abuse to take place.
Forcing a survivor to make that decision by an arbitrary deadline imposes unnecessary procedural hurdles. It denies survivors the right to take control over their lives and healing process according to their own timeline.
Secondly, the individual merits of a survivor’s own case and circumstances are not considered by the court in assessing damages for the class as a whole.
The court may decide to award class members a share of the amount awarded to the class, or may look at each class member’s claim individually when apportioning damages; however, the claims of the representative plaintiff(s) become the measure of damages generally.
If a particular member of the survivor class has a stronger ‘individual’ case, that survivor might have been able to persuade a defendant or judge/jury to offer or award a settlement or damages, as the case may be, in an amount significantly higher than that which would have based upon the proportional assessment based on the claims of the representative plaintiff(s).
Finally, each survivor may be looking for something different in the legal process. Monetary damages, while important, are not necessarily the sole or sometimes even primary reason that survivors may want to take action against the defendant.
As I noted in a blog post about the Sixties Scoop, a class action seeking damages for cultural losses related to that shameful chapter in Canadian history, was not what some of the participants needed. Indeed, some expressed that their experience participating in the class action did not give them an opportunity to feel fully heard. Many others said that there was inadequate communication about their legal rights and options.
What Can Be Done?
If you’re reading this blog post at a time when you or a loved one are deciding whether to participate in a class action of any kind – but especially one involving institutional abuse – you should consider seeking independent legal advice about whether your interests will be adequately served by taking part in a class proceeding.
You may come to learn that it would be advantageous to join the class. However, if you discover that your interests might be better served by advancing an individual claim concurrently or at some point in the future, you will be glad that you are able to make a better-informed decision – one that is right for you.
If you know or believe yourself to be a member of the class identified by the lawsuit in Nova Scotia, and you feel your interests may be best served by advancing an ‘individual’ claim, you may still have legal recourse to separate yourself from that class proceeding.
Section 19 of Nova Scotia’s Class Proceedings Act, SNS 2007, c 28 provides that “a person who is a member of a class involved in a class proceeding may opt out of the class proceeding in the manner and within the time specified in the certification order; or with leave of the court and on the terms or conditions the court considers appropriate”.
Since the time specified in the certification order has passed, seeking “leave of the court” is the only possibility. While such a leave application does not seem to have ever been brought in Nova Scotia (at least based on any case law I’ve been able to identify as of this writing), it is still important to consider.
In Ontario, the Court of Appeal has set out the test for granting an extension of the “opt out” period in Johnson v. Ontario, 2022 ONCA 725. If a Nova Scotia court was asked to consider granting leave, it would likely adopt a similar test, or at least consider similar factors. The test articulated by the Ontario Court of Appeal requires a showing by the party seeking to opt out late that: (1) their neglect in complying with the court-imposed deadline to opt out is excusable; and (2) the extension would not result in prejudice to the class, the defendant, or the administration of justice.
Whether a request for leave from a potential class member in this or any other action involving sexual abuse would be granted, is of course uncertain. However, Canadian courts in many jurisdictions have become sensitive to the way in which traumatic events can impact a survivor’s actions and choices. There may come a time when a court will be asked to respect a survivor’s right to seek justice on their own terms and according to their own timetable - especially since there is no longer a statute of limitations on claims involving sexual abuse and sexual assault for this very reason.
Empowering Survivors of Sexual Assault
Sexual abuse and sexual assault are acts that deny a person’s right to autonomy over their own body. Survivors should be supported as they take actions to regain a sense of control over their bodies and their lives.
Class action proceedings can be a useful litigation tool for some matters – but they are not generally a good fit for abuse cases. There are better, trauma-informed actions that can help survivors access justice in a way that meets and respects their unique needs.
If you or a loved one has suffered from institutional sexual abuse or sexual assault, and you have questions about your legal rights and options, contact me at jellinek@gluckstein.com or 1-416-955-4800 ex 285.