Throughout Canada, recent years have seen repeated discoveries of abuse in institutional settings. Allegations against religious organizations, educational facilities, nursing homes, and correctional facilities have brought to light horrific stories of the mistreatment, neglect and abuse of hundreds of individuals. Class actions can allow individuals who were victimized in institutional settings to seek redress as part of a group.
Class actions arising out of institutional abuse were first approved by the Supreme Court of Canada in Rumley v British Columbia, in 2001. That case involved abuse at a residential school for deaf and blind children and was built on the concept of systemic liability – the idea that liability on the part of the defendant is not specific to the individual circumstances of a particular survivor, but to the entire class of survivors as whole.1
Since then, various institutional abuse class actions have been certified, including actions against the Child and Parent Resource Institute, an institution in London, Ontario for children with special needs and developmental disabilities; the government of Ontario for their mistreatment of Crown Wards; and, the Catholic Church on behalf of sexual abuse survivors.
For a class action to be certified (certification is where the court decides whether the claims can properly be pursued as a class action), there must be factual and/or legal issues that are common to the entire class, among other things. In institutional abuse cases, defendants sometimes argue that the individual experiences of each victim are varied, and that individual negligence cases are the most appropriate way for victims to seek compensation.
This issue was recently discussed by the Supreme Court of British Columbia in Liptrot v Vancouver College Ltd.2 Reference was made to the Supreme Court of Canada’s conclusion in Rumley that, although individual evidence can be relevant, a systematic breach of legal duties by an institution can be determined without reference to the circumstances of each individual class member. The focus of the institutional abuse class action is on how a defendant’s conduct affected all class members as a group, rather than individually. In fact, the BC Court of Appeal in Griffiths v HMTQ has previously noted that bringing institutional abuse class actions can be beneficial for class members who are particularly vulnerable, because they can reduce the trauma involved throughout the litigation process.3
An important advantage to pursuing institutional abuse claims as class actions is that settlements can include non-monetary compensation for victims. Class actions are commonly discussed in the media, attracting national and international attention, and putting pressure on defendants to take accountability and provide recognition for the harm caused to survivors. For example, a class action against the Huronia Regional Centre, which historically provided residence for developmentally disabled children, was settled in 2013. The settlement, which compensated victims for neglect, abuse and exploitation, also featured an apology for the conditions in institutional settings.
Class actions have also resulted in commemorative initiatives. The proposed settlement in a case against the Manitoba government for treatment of residents at the Manitoba Developmental Centre includes the building of a monument at the Centre’s ceremony, and funding for projects to help individuals living with disabilities in the community.
Where issues of institutional abuse are dealt with on a common basis, a court can make findings of fact which apply to all of the class members. There is no need for class members to revisit those common issues when they set out their own claim for damages. With much of the heavy-lifting already done, the class members can focus on proving how the defendant’s conduct affected them, without having to first prove whether the conduct occurred at all. In addition, even at the individual issues stage (i.e., when proving how the defendant’s conduct affected them), the proof requirements are often more relaxed than in traditional litigation. For example, the individual may be able to substantiate their claim through an affidavit (a written sworn or affirmed statement) rather than live testimony. These measures minimize the demands of the litigation on individual claimants.
Ultimately, class actions prioritize providing mass access to justice and help drive on behaviour modification. Both goals are particularly important in the context of holding institutions responsible for any abuse or neglect inflicted by them over the years. Class actions are a powerful tool in providing victims with the recognition and compensation that they deserve and deterring future institutional abuse.
1 Rumley v. British Columbia, 2001 SCC 69, [2001] 3 SCR 184
2 Liptrot v Vancouver College Limited, 2023 BCSC 346
3 Griffiths v. British Columbia, 2003 BCCA 367.