The Long Road to Justice: Plaintiffs Win Common Issues Trial in Institutional Abuse Case

May 27, 2020

Written By Mike Eizenga and Pavan Virdee

A class action with a long and complex history has resulted in the plaintiffs achieving complete success at the common issues trial. The decision in Cavanaugh v Grenville Christian College, 2020 ONSC 1133 [Cavanaugh], highlights the challenges that existed in a proceeding which answered common issue questions spanning a period of more than 24 years. This appears to be the first institutional abuse common issues trial in Canada that has proceeded all the way to judgment. The decision underlines that class actions in which the plaintiffs are able to focus their trial evidence on systemic failings of the defendants will potentially be amenable to adjudication on a class basis, even when dealing with an extended class period.

Factual Background & History of the Case

The plaintiffs brought this action on behalf of 1360 former boarding students of the now-defunct Grenville Christian College (Grenville), on the basis of serious allegations that the school administration engaged in abusive practices during the class period, knowingly operated its institution in a manner out of step with the educational standards of the day, failed to meet the standards of care, and breached fiduciary duties owed to its boarding students. The class plaintiffs named as defendants Grenville, an Anglican synod, and previous headmasters of the school.

Grenville was founded in 1969. In 1973, it adopted the doctrine and practices of the "Community of Jesus", an organization based in Massachusetts. These became the foundation of the school's approach to educating, disciplining and bringing up its students. It was alleged that during their time at Grenville, the class plaintiffs were subjected to various forms of systemic physical and psychological abuse at the hands of Grenville staff, including the headmasters, Charles Farnsworth and Alastair Haig.

In 2012, Justice Perell denied the plaintiffs' motion for certification on the ground that a class proceeding was not the preferable procedure to resolve the issues in dispute, finding the plaintiffs’ reliance on systemic negligence and systemic breaches of fiduciary duty problematic in that it would make the individual component of the proceedings more difficult. His decision was reversed by the Divisional Court in 2014, which found that a determination of the common issues would involve a consideration of matters affecting all class members irrespective of their personal circumstances, and that a class proceeding was the preferable procedure for the adjudication of such a case. The Divisional Court found that the resolution of the common issues, including whether systemic abuse existed, would move the litigation forward significantly, streamlining the process and avoiding the risk of inconsistent outcomes.

When the Divisional Court granted certification, it noted that various matters may be relevant to the common issues, including: (i) the history of the school; (ii) the duties owed to the class members particularly relating to discipline; (iii) the practices and policies that existed at the school and their impact on those duties; (iv) any practices and policies that should have been in place to prevent abuse; and (v) whether certain of the school's alleged disciplinary practices were systemic and a breach of the school's duties to its students.

Systemic Issues

The trial was heard by Madam Justice J. Leiper. Her Honour's analysis of the common issues focused on the objectively measurable evidence of Grenville's institutional methods, routines, norms and expectations, and the enforcement of those norms and expectations across the relevant period of time, to determine whether the defendants perpetrated systemic negligence, breached the standard of care of the day and corresponding duties to Grenville’s students.

The outcome of the trial turned on whether it was possible for the Court to make findings of fact across a 24-year class period. In attempting to defeat the plaintiffs' position, the defendants focused on inconsistencies in the plaintiffs' evidence, the credibility of the plaintiffs' witnesses, and an argument that findings could not be made on a systemic basis.

The plaintiffs called evidence from 12 former students and three former staff of Grenville. The defendants challenged the credibility and reliability of several of these witnesses. The trial judge addressed the credibility arguments at the outset of her reasons for judgment, setting the tone for her assessment of the evidence put before her.

Overall, Justice Leiper found that the corroborative evidence between witnesses confirmed key findings in the trial. The defendants argued that "virtually no weight" should be given to some of the plaintiff witnesses' testimony where there were some areas of disagreement. The court determined that these areas of disagreement pertained to individual experiences, perception, atmosphere, and details of what was said and done to individual students, but that more broadly the evidence of these witnesses confirmed a pattern of conduct and reflected a general consistency in the accounts about the nature of the students’ time at Grenville that demonstrated that the defendants’ actions fell below the relevant standard of care.

Justice Leiper also gave little weight to the defendants' arguments about the plaintiff witnesses' testimonial demeanour as an indication of their credibility. Following a growing body of appellate authority, she cautioned against assessing demeanour as an indicator of witness credibility. She noted that assessing demeanour bears the risk of applying "amateur psychology". The manner in which a witness gives evidence may reflect matters unrelated to credibility, such as personality, culture, or the impact of testifying about a traumatic event. She noted that a witness's feelings about a certain issue—in this case, the school itself—are not the same thing as what happened to a witness while he or she was there.

Justice Leiper ultimately found each of the plaintiffs’ witnesses whose credibility was challenged by the defendants to be credible and reliable, as confirmed by the consistency of the overall patterns described in those witnesses' evidence.

Expert Evidence and Harmful Conduct Affecting the Class

The plaintiffs called evidence from two expert witnesses who opined that Grenville's disciplinary practices constituted abuse, including systemic abuse, falling below the standard of care. Opinion evidence was offered on the standard of care for schools in Ontario during the class period, and in respect of the psychological aspects of the abuse of children. This evidence was not met by expert evidence from the defendants.

The defendants argued on the basis of fact evidence alone that, because different students had different experiences and impressions of Grenville depending on their own behaviour and individual ability to tolerate the school's practices, the school could not have fallen below the standard of care. Justice Leiper relied on the plaintiffs’ expert evidence and fact evidence, and referenced the Ontario Court of Appeal's 2004 decision in Cloud v Canada (Attorney General), in rejecting the defendants' argument and concluding that the abuse was systemic.

Expert evidence established that the standard of care of educational institutions in Ontario during the class period was shaped by considerable and significant reforms in the 1960s. Most notably, corporal and other degrading forms of punishment were abolished, and other standards including creating engaging learning environments and teaching in an atmosphere of respect and trust were in place. Generally, disciplinary practices and policies were meant to be consistent with the basic assumptions underlying a democratic society. Critically, the standard of care applied throughout the class period.

Justice Leiper found that differently situated people will have different reactions to the same conditions; however, evidence of the harmful acts perpetrated by Grenville was not weakened because different students experienced the acts differently and expressed different reactions to their time at the school. Further, she accepted that partiality in treatment and individual resilience accounts for some of the differences in impact and experience among class members. Overall, the class period witnesses shared remarkable consistencies in their accounts of their time at Grenville, supporting a finding of systemic abuse.

The trial was heard by Madam Justice J. Leiper. Her Honour's analysis of one disciplinary practice in particular, public shaming, is illustrative of this distinction. The defendants submitted that the observers of public shaming were not harmed by the practice. However, the uncontradicted expert evidence on the nature of public humiliation demonstrated that harm can be experienced by both those on the receiving end of the attention, as well as those encouraged to participate, thereby violating their own moral codes by shaming their peers.

Punitive Damages

Justice Leiper determined that entitlement to punitive damages was an issue to be decided at the common issues stage of class action litigation. Although questions of the quantum of damages are left to be determined at the next stage of the litigation, Justice Leiper held that she "need not know with precision the number of students affected to make a finding that punitive damages are appropriate" in this case. The evidence at trial established a 24-year pattern of conduct amounting to a marked departure from the educational standards of the day in Ontario, and that the mistreatment perpetrated on students was class- and decades-wide. Justice Leiper also found that the headmasters of Grenville profited from their control over the student body.

The finding of systemic negligence was enough to conclude that the defendants' conduct deviated from established standards on a class-wide basis. Although the school no longer exists, Justice Leiper found that the policy aims of applying punitive damages were still applicable—she identified a need to denounce conduct that can affect the health and emotional well-being of individuals throughout their lives.

Key Takeaways

As a rare common issues trial decision, Cavanaugh has important implications for not only class actions, but individual actions as well.

• Managing procedural and evidentiary challenges: Cavanaugh is an example of how the court might manage procedural and evidentiary challenges, such as hearing testimony concerning events that occurred decades prior to trial, and addressing a large class spanning a lengthy class period. Despite the 24-year class period in this case, the plaintiffs were able to prove systematic abuse falling below the standard of care through the evidence of lay witnesses who had attended the school at a variety of times and through expert witnesses who were able to address the standard of care throughout the relevant time period.
• Assessing witness credibility: Cavanaugh follows a growing body of case law that raises important lessons for how the court will assess arguments relating to witness credibility. Counsel should not attempt to engage the court in amateur psychology but should focus on the more objective factors such as cross-corroboration and consistency of accounts.

An appeal of this decision is currently pending.

If you have questions arising out of this matter, please contact the authors, or a member of the Bennett Jones Class Actions Practice Group.

Authors