DECISION OF JUSTICE PIERCE REGARDING SETTLEMENT APPROVAL MOTION
We are deeply disappointed and concerned by Justice Pierce’s decision of May 26, 2021 in the Ontario Crown Ward class action in which her Honour denied the approval of a proposed settlement, which was reached after 8 years of litigation, 2 years of negotiations and recommended by the parties. As we strongly believe the decision is incorrect, we are seeking leave to appeal.
This claim is not, and never was, a claim for compensation for the abuse itself suffered by crown wards. Instead, this claim was a much narrower and novel claim, relating to the alleged failure to advise the class members of their rights to commence lawsuits or seek benefits, and in certain cases to consider and advance those claims while the class members were crown wards. When the case was commenced there were limitation periods that related to such lawsuits. However, during the class action, in 2016, the legislature completely eliminated limitation periods for sexual assault claims as well as physical assaults of minors. Therefore, the class members are now able to pursue any such claims that they have.
After lengthy negotiations with the assistance of an experienced mediator, the parties reached a proposed resolution to provide compensation to class members without any release of their rights to pursue such claims as against the abuser or any entity that may be liable for the abuse they suffered. Unfortunately, Justice Pierce’s decision fails to recognize the correct basis of the claim and also fails to recognize some of the key provisions of the proposed settlement. Accordingly, class members who obtain settlement benefits remain free to initiate individual civil actions against anyone liable for the abuse or crimes they suffered and to apply for any benefits to which they are entitled.
The proposed settlement not only provides compensation to class members, but also advises them of the fact that they may have rights of action that arise directly from abuse they suffered, and that this settlement does not release those rights.
To deny the approval of a fair and reasonable proposed settlement given the circumstances, mitigates the clear benefits to the class including:
- Providing compensation in light of the novel and extremely challenging claims that were advanced, and the defences raised;
- Providing a claims process that is user friendly, streamlined, and with a presumption of honesty by the claimant. The application is paper-based and non-adversarial (no cross-examination) and therefore intended to avoid re-traumatization;
- Preserving the class members’ rights of action against any the abusers or entities liable for the abuse or crimes they may have suffered; and
- Not impacting class members’ eligibility for or the amount, nature and /or duration of social assistance programs administered by or on behalf of the ministry of children, community and social services by receiving compensation under the settlement will not impact.
The fairness of this proposed settlement must be considered through the narrow legal case which was being litigated and which is being settled in this action. This case is not for compensation for the abuse anyone suffered and is not a lawsuit against individual abusers or the agencies that may be responsible for them. In fact, those rights are maintained by the proposed settlement.
We attach our factum here from the motion for settlement approval which provides further detail.
We will proceed to diligently enforce our clients’ rights and will seek leave to appeal as required to ensure a just and fair result.