Huronia Regional Centre - Certification Motion Materials - Factum of The Moving Plaintiffs - January 25, 2010

Court File No.
CY-09-376927CPOO

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MARILYN DOLMAGE AS LITIGATION GUARDIAN OF MARIE SLARK and JIM DOLMAGE AS LITIGATION GUARDIAN OF PATRICIA SETH

Plaintiffs

- and-

HER MAJESTY THE QUEEN IN RlGHT OF ONTARIO and HURONIA REGIONAL CENTRE

Defendants

Proceeding under the Class Proceedings Act, 1992

FACTUM OF THE MOVING PLAINTIFFS (returnable Tuesday, March 2,2010)

KOSKIE MINSKY LLP

20 Queen Street West, Suite 900, Box 52 Toronto, Ontario

M5H 3R3

Kirk M. Baert LSUC#: 309420 Tel: 416-595-2117

Fax: 416-204-2889

Celeste Poltak LSUC#: 46207 A Tel: 416-595-2701

Fax: 416-204-2909

Lawyers for the Plaintiffs

TO: MINISTRY OF THE ATTORNEY GENERAL Crown Law Office, Civil Law

720 Bay Street, 8th Floor

Toronto, ON MSG 2Kl

Robert Ratcliffe

Tel: (416) 326·4128

Fax: (416) 326-4181

Solicitors for the Defendants

Court File No. CV-09-J76927CPOO


BETWEEN:

MARIL YN DOLMAGE AS LITIGATION GUARDIAN OF MARIE SLARK and JIM DOLMAGE AS LITIGATION GUARDIAN OF PATRICIA SETH

Plaintiffs

- and-

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and HURONIA REGIONAL CENTRE

Defendants



TABLE OF CONTENTS

PAGE

PART I - INTRODUCTION 1

PART II - THE FACTS 2

A. Overview of the Claim - History of Huronia 2

B. Proposed Class Definition 7

C. Proposed Common Issues '" 7

D. The Representative Plaintiffs 8

I. Patricia Seth 8

11. Marie Slark _ _ 9

E. The Litigation Guardians 11

F. Other Class Members and Their Common Experiences 13

PART III - ISSUES AND THE LAW 17

A. SECTION 5(1)(A) CAUSE OF ACTION - HIGH THRESHOLD TO STRIKE 17

I. Operational Negligence of the Defendant. 19

u, Breach of Fiduciary Duty by the Crown 21

iu. Family Law Act Claims to the Family Class _" 24

B. SECTION 5 (l)(b) - THE PRESENCE OF AN IDENTIFIABLE CLASS 25

C. SECTION 5(1 )(C): THE CLAIMS OF THE CLASS RAISE COMMON

ISSUES , , _ _ .. 27

L Aggregate assessment of monetary relief 33

D_ SECTION 5(1)(D): A CLASS ACTION IS THE PREFERABLE

PROCEDURE -- .. _ _-- .. -_ -_ 34

i. Access to Justice _ _ __ _ 37

ii. Judicial Economy __ 39

iii. Behaviour Modification 42

E. SECTION 5(1)(E): THE PROPOSED REPRESENTATIVE PLAINTIFFS ARE ADEQUATE, COMPETENT AND HAVE NO CONFLICT WITH THE

CLASS - , ,, , 43

F. SECTION 5(1): AN APPROPRIATE LITIGATION PLAN HAS BEEN

TENDERED _ _ , 46

PART IV - ORDER REQUESTED _ _ _ 50

SCHEDULE "A"

LIST OF AUTHORITIES 51

SCHEDULE "B"

RELEVANT STATUTES _ , , 53

Court File No. CV-09-376927CPOO


BETWEEN:

MARILYN DOLMAGE AS LITIGATION GUARDIAN OF MARIE SLARK and JIM DOLMAGE AS LITIGATION GUARDIAN OF PATRICIA SETH

Plaintiffs

- and-

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and HURONIA REGIONAL CENTRE

Defendants



PART I - INTRODUCTION

1. This motion is brought by the Plaintiffs, Marie Slark, Patricia Seth and their litigation guardians, Marilyn Dohnage and Jim Dolmage (collectively referred to as the "Plaintiffs"), for an order certifying this action as a class proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the "Act") and an order appointing them as representative Plaintiffs in this action. The Crown has not filed a statement of defence and filed no responding material in opposition to the motion.

2. The action arises out of the Crown of Ontario's operation and administration of the Huronia Regional Institute ("Huronia"), a residential facility for the care of mentally challenged individuals and others in need of psychiatric care. Huronia was a statutorily established facility located in Orillia, Ontario. It was closed on March 31,2009. At all times, the Crown of Ontario owned, operated, controlled and supervised Huronia and its residents, many of which experienced abuse and injuries during their residence at the institution.

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3. The Plaintiffs' claim is based on the Crown's negligence and breach of fiduciary duties to the residents and their families in the operation, control and management of Huronia.

P ART II - THE FACTS

A. Overview of the Claim ~ History of Huronia

4. The claims advanced pertain to the Crown's alleged negligence and breach of fiduciary duty in the funding, operation, management, administration, supervision and control of Huronia. Huronia was intended to provide a residential program of hospital care, activity, educational programs and adult training to individuals of all ages labelled mildly, moderately, severely and profoundly disabled. 1

5. Originally, Huronia was founded in 1876 as the Orillia Asylum for Idiots. It was operated under the Inspector of Asylums, Prisons and Public Charities until 1930. In 1890, the centre was renamed the Ontario Hospital for Idiots and then the Hospital for the FeebleMinded in 1911. In 1936, the institution was again renamed as the Ontario Hospital School to reflect its educational component which operated under the direction of the provincial Department of Health until 1972 when the Department became the provincial Ministry of Health. Over time, Huronia's catchment admission area covered the regions of Halton, Peel, York, Simcoe, Muskoka and Parry Sound.2

6. It is alleged that every aspect of Huronia residents' lives were dictated, controlled and provided for by the Crown. Individuals at Huronia had virtually no control over any aspect of their lives. The opportunities to make choices or provide any input into their daily lives were

1 Statement of Claim, Exhibit "An to the affidavit of David Rosenfeld, sworn August 4, 2009, Plaintiffs Motion Record for Certification. tab 6A, at page 53, para. 13.

2 Statement of Claim, Exhibit "A" to the affidavit of David Rosenfeld, sworn August 4,2009, Plaintiffs Motion Record for Certification, lab 6A, at page 53, para. 14,

..,

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extremely limited, if not non-existent. The vulnerability of these individuals as a result of their placement in the institution was further compounded by virtue of their being disabled.]

7. It is alleged that residents were repeatedly mistreated and abused at Huronia, which

mistreatment and abuse included:

(a) residents were left to aimlessly walk or crawl around Huronia at times, often without

any clothing;

(b) residents were often not bathed or cleaned;

(c) there was intermittent or inadequate or no attempt to supervise or program residents'

activities;

(d) residents were organized into work gangs to perform the routine and ordinary tasks of

running such an institution;

(e) admissions procedures contained no opportunity for pre-admission VISItS and communications between residents and family members were made difficult if not impossible;

(f) a serious shortage of professional staff, falling far behind, sometimes in the nature of

30%, appropriate industry and professional standards or ratios;

(g) a total lack of personal attention or privacy given the institutional structure, facilities

and overcrowd ing;

(h) wards and rooms were unnecessarily locked, creating a prison-like environment;

(i) lavatories lacked doors and often toilet seats; and

U) for their physical labour in and around the institution, residents were either paid nothing at all or were paid minimal and completely unrealistic wages in the range of 4 cents to 8 cents per hour."

8. It is alleged that the Crown had knowledge of the mistreatment and abuse of residents at Huronia as early as 1956. Various reports (official and otherwise) were prepared over the

J Statement of Claim, Exhibit "A'· to the affidavit of David Rosenfeld, sworn August 4,2009, Plaintiffs Motion Record for Certification, tab 6A. at page 53, para. 17.

4 Statement of Claim, Exhibit .. A" to the affidavit of David Rosenfeld, sworn August 4. 2009, Plainriff's Motion Record for Certification, tab 6A,. at pages 60~61, paras. 46-47.

years documenting the abuse and neglect the residents suffered and providing remedial recommendations. Notwithstanding these reports and recommendations, over a period of some years, no adequate internal safeguards were put into place to prevent or report abuse of Huronia residents and no adequate steps were taken to improve the quality of care or living at Huronia, or, even if some of the recommendations were followed, those measures were inadequate and failed to meet the standard of care which was applicable in the circumstances.'

9. In 1956, Dr. Hamilton, a government agent inspector of Huronia, drew attention to Huronia's use of restraints and seclusion techniques. In 1960, Pierre Berton authored an article entitled, "What's Wrong at Orillia- Out of Sight, Out of Mind", in which he described what he called "atrocities" at Huronia, including extreme overcrowding. Ultimately, Berton's article led to a Parliamentary debate where Huronia was called a "hell-hole," and Huronia's cottages called "buildings for human storage." In 1971, the Walter B. Williston report, sponsored by the Ministry of Health itself, criticized Huronia for its deficient staff to patient ratios, serious overcrowding and isolation, unpaid labour, and hazardous buildings."

10. In 1976, in response to continuing complaints about the administration of Huronia and the treatment of residents, yet another report was authored for the then Minister of Community and Social Services. This report was entitled, "Inquiry into the Management and Operation of the HUTOnia Regional Centre, Orillia" and authored by Joseph Willard (the "Willard Report"). The findings of the Willard Report regarding the administration ofHuronia were serious and scathing. Moreover, the Willard Report enumerated recommendations specific to Huronia including:

(a) review of medication being administered at Huronia,

(b) the raising of staff ratios,

(c) implementation of certain training for direct care staff and counsellors,

s Statement of Claim, Exhibit "A" to the affidavit of David Rosenfeld, sworn August 4,2009, Plaintiffs Motion Record for Certification, tab 6A, at pages 59-60, paras. 43-45.

6 Statement of Claim, Exhibit "A'· to the affidavit of David Rosenfeld, sworn August 4,2009, Plaintiffs Motion Record for Certification, tab 6A, at pages 54-55, paras. 18·24

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(d) inc rease of superv is ion, and

(e) the institution of an established procedure for the independent review of abuse

allegat ion s. 7

1 L In addition, between approximately 1954 and 1989, the operation, control and management of Huronia became the subject of local and national media attention. Amongst other things, publications documented and publicized specific incidents of abuse, overcrowding, hazardous buildings, overmedication and death."

12. The claim alleges that, the Crown did not act to prevent or report the known abuse which was occurring and being perpetrated upon Huronia residents. It is alleged that as the Crown knew that the residents of Huronia were not always in a position to complain, report or be listened to, it would have been reasonable for the Crown to establish appropriate institutional means of quality assurance to ensure individuals resided in an inherently safe environment.

13. The duties alleged to be owed to the Class Members and breached by the Crown

include, but are not limited to, the duty of:

(a) adequately, properly and effectively supervising the Huronia environment and the

conduct of its employees to ensure the residents would not suffer harm;

(b) ensuring that physical, emotional and sexual abuse would not occur;

(c) protecting Huronia residents from any person or thing which would endanger or be

injurious to the health and well-being of any resident;

(d) using reasonable care to ensure the safety, well-being and protection of Huronia

residents;

(e) providing a safe environment and in particular, one free from physical sexual and/or

psychological assault or harm;

t Statement of Claim, Exhibit "A" to the affidavit of David Rosenfeld, sworn August 4,2009, Plaintiff's Motion Record for Certification, tab 6A, at pages 55-56, paras. 25-26

g Statement of Claim, Exhibit "A" to the affidavit of David Rosenfeld, sworn August 4,2009. Plaintiff's Motion Record for Certification, tab 6A, at pages 56-57, para. 29

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(f) setting or implementing standards of conduct for its employees and Huronia residents to ensure that no employee or resident would endanger the health or well-being of any resident or person;

(g) providing residents a program and system through which abuse would be recognized

and/or reported;

(h) educating residents and employees in the use of a system through which abuse would

be recognized and reported;

(i) pursuing and investigating complaints of physical, sexual or psychological abuse with

due diligence;

U) taking any and all reasonable steps to prevent and end physical, sexual or

psychological abuse upon learning of a complaint;

(k) taking any and all reasonable steps to ensure that individuals coming into direct contact with a Huronia resident were not in danger of abuse from other residents or employees;

(1) reporting conduct which is allegedly contrary to the Criminal Code of Canada to the

appropriate law enforcement agency upon learn ing the particulars of such a complaint; and

(m) providing proper and reasonable treatment for residents upon learning that a resident

was abused."

14. Furthermore, all individuals who resided at Huronia did so as wards of the Crown, with the Crown as their guardian, and were persons to whom the Crown owed the highest non-delegable, fiduciary, statutory and common law duties, which included, but were not limited to, the duty to ensure that reasonable care was taken of the residents of Huronia, the duty to protect residents while at Huronia, the duty to protect the resident Class from intentional torts perpetrated on them while at Huronia, liability if these non delegable and fiduciary duties were performed negligently or tortiously and the special responsibility to ensure the safety of the resident Class while at Huronia.1o

15. It is alleged that the Crown breached those duties.

9 Statement of Claim, Exhibit "A" to the affidavit of David Rosenfeld, sworn August 4,2009, Plaintiffs Motion Record for Certification. tab 6A, at pages 61-65, paras. 49 and 48-61

10 Statement of Claim, Exhibit "A·' 10 the affidavit of David Rosenfeld, sworn August 4, 2009, Plaintiffs Motion Record for Certification, lab 6A, at pages 62 para. 52.

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B. Proposed Class Definition

16. The plaintiffs propose that the class be defined as follows:

( a) a II persons who resided at Huron ia between 1876 and March 3 I, 2009 (the "Res ident

Class"); and

(b) all parents, spouses, chi ldren and siblings of persons who resided at Huronia between

1876 and March 3 I, 2009 (the "Family Class").

17. Each of the class definitions is circumscribed by objective criteria and is rationally connected to the common issues: (a) membership in the Resident Class is defined by the objective requirement that a member resided at Huronia between 1876 and 2009 and (b) membership in the Family Class requires that a person meet the objective criterion of being a parent, spouse, child or sibling of someone who was a resident. Because all class members claim breach of these duties and resulting harm, the classes are not unnecessarily broad. All Class Members share the same interest in the resolution of whether they were owed these duties, whether these duties were breached, and whether harm was incurred.

C. Proposed Common Issues

18. The common issues proposed by the Plaintiffs are as follows:

(a) by its operation or management of Huronia Regional Centre ("Huronia") from 1876 to 2009, did the defendants breach a duty of care they owed to the Resident Class to protect them from actionable physical or mental harm?

(b) by its purpose, operation or management of Huronia from 1876 to 2009 during the Class Period, did the defendants breach a fiduciary duty owed to the Resident Class to protect them from actionable physical or mental harm?

(c) by its purpose, operation or management of Huronia from 1876 to 2009 did the

defendants breach a fiduciary duty they owed to the Family Class?

(d) if the answer to any of common issues (aHc) is "yes", can the COUi1 make an aggregate assessment of the damages suffered by all class members of each class as part of the common trial?

(e) if the answer to any of common issues (a)-(c) is "yes", were the defendants guilty of

conduct that justifies an award of punitive damages"; and

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(f) if the answer to common issue (e) is "yes", what amount of punitive damages ought to

be awarded?11

D. The Representative Plaintiffs

19. Patricia Seth ("Patricia") and Marie Slark ("Marie"), both fanner residents of Huronia,

have agreed to act as representatives on behalf of the class in this action. [2

I. Patricia Seth

20. Admitted to Huronia when she was only six (6) years old after she was removed from her family, Patricia resided there, on a full time basis, between 1964 and 1979.13 At the time of her admittance to Huronia, Patricia would have been identified and labelled by Huronia as being "developmentally challenged" or "mentally retarded" and was immediately placed in an isolation ward."

21. Patricia never had any control over her life as everything was dictated by Huronia staff." From the beginning of her residence at Huronia until she left, Patricia was repeatedly and continuously abused and punished including being hit by a fly swatter, a rad brush and being held upside down in ice cold water. 16 She was also administered medication to pacify her when she was found to be "speaking out". 17

II Plaintiffs' Litigation Plan. Exhibit "8" to the affidavit of David Rosenfeld, sworn August 4,2009, Plaintiffs Motion Record for Certification, lab 6B, at pages 7 \- 72, para. I.

12 Affidavit of Patricia Seth sworn July 26, 2009, Plaintiffs Motion Record for Certification Tab 5, at pages 37-38, paras. 7-9 and 20-26; Affidavit of Marie Slark sworn July 26,2009, Plaintiff's Motion Record for Certification Tab 4, at paras. 9-11 and 22-28_

13 Affidavit of Patricia Seth sworn July 26,2009, Plaintiff's Motion Record for Certification Tab 5, at page 37,

paras. 8-9; Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs Motion Record for Certification Tab 2, page 10 at para 27.

14 Affidavit of Marilyn Dol mage sworn July 26,2009, Plaintiffs Motion Record for Certification Tab 2, page II at paras. 26 and 33;Transcript from the Cross-Examination of Patricia Seth held November 24, 2009, Book of Transcripts tab 2, page 7 ;\uestion 34.

L Affidavit of Patricia Seth sworn July 26, 2009, Plaintiffs Motion Record for Certification Tab 5, at page 37, para.

II; Affidavit of Marilyn Dolrnage sworn July 26,2009, Plaintiff's Motion Record for Certification Tab 2, page! 0 at para 27. !6 Affidavit of Marilyn Dolmage sworn July 26,2009, Plaintiffs Motion Record for Certification Tab 2, page 10 at para 28- 29; Transcripts from the Cross-Examination of Patricia Seth held November 24, 2009, Book of Transcripts tab 2, pages 8-13 questions 44-45 and 55-69_

17 Affidavit of Patricia Seth sworn July 26, 2009, Plaintiff's Motion Record for Certification Tab 5, at page 37. para.

14; Affidavit of Marilyn Dol mage sworn July 26, 2009, Plaintiff's Motion Record for Certification Tab 2, page 10 at para 29.

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22. Patricia was unable to report the abuse she experienced or saw at Huronia for fear of repercussion and threat of increased abuse. 18 Patricia never spoke to the police about what happened to her at Huronia because she did not know the extent of her rights and perhaps the police would not have believed her or could not do anything about it.19

23. Patricia found her life at Huronia terrifying and for many years watched as her fellow residents were physically beaten by staff or by one another.f" Like other former residents of Huronia, Patricia's institutionalization at a very young age as limited her education and life experiences and has compromised her sense of trust and judgment? 1

24. Patricia has not had gainful employment since 1981.22 She cannot live in the community without support. which she receives from a support worker, subsidies for housing and from the Ontario Disability Support Program."

Ii. Marie Slark

25. After being taken away from her family, Marie was admitted to Huronia in 1961 at the age of seven (7) and continued to reside at Huronia full time from 1961 to 1970,24 At the time of her admittance she was described by Huronia as being "developmentally challenged"

or "mental! y retarded" _I5 discharged from Huronia.26

Marie does not remember ever being formerly or officially

1& Affidavit of Patricia Seth sworn July 26,2009. Plaintiffs Motion Record for Certification Tab 5, at page 37, para.

18; Transcripts from the Cross-Examination of Patricia Seth held November 24, 2009, Books of Transcripts tab 2, page 10 question 49; Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs Motion Record for Certification Tab 2, page II at para 32.

19 Transcripts from the Cross-Examination of Patricia Seth held November 24,2009, Books of Transcripts lab 2, page 16 questions 91-92.

20 Affidavit of Patricia Seth sworn July 26, 2009, Plaintiffs Motion Record for Certification Tab 5, at page 37, paras. 15-16 and 19; Affidavit of Marilyn Dolmage sworn J uly 26, 2009, Plaintiff s Motion Record for Certificat ion Tab 2, page 10 at para" 28 .

• 1 Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiff's Motion Record for Certification Tab 2, page II at para 33. zz Transcripts from the Cross-Examination of Patricia Seth held November 24, 2009, Books of Transcripts tab 2,

pages 6-7, question 31.

23 Affidavit of Marilyn Dolmage sworn July 26. 2009. Plaintiffs Motion Record for Certification Tab 2, page! I at para. 33.

14 Affidavit of Marie Slark sworn July 26,2009, Plaintiff's Motion Record for Certification Tab 4, at page 33, paras. 10-11; Affidavit of Marilyn Dohnage sworn July 26, 2009, Plaintiffs Motion Record for Certification Tab 2, pages 8-9 at paras 10 and 15-16.

2, Affidavit of Marilyn Dolmage sworn July 26.2009, Plaintiffs Motion Record for Certification Tab 2, page 8 at

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26. While residing at Huronia, Marie recalls that she never had any control of her life as everything was dictated by Huronia.27 She was placed on medication for "acting out" to pacifier, including largactil and placidl.28 Marie also repeatedly saw other children physically punished for no reason and staff members instructing minor residents to physically abuse one another at the staff s discretion. 29 Marie was unable to report the abuse she experienced or saw for fear of repercussions and a threat of increased abuse if she reported it.3o

27. At sixteen (16) years old Marie was placed into a "approved home" off the grounds of Huronia, but still operated by Huronia, where she was tlueatened, teased and physically and sexually abused;" Marie was only able to divulge that she had been physically and sexually abused in the "approved home" well after she was discharged from Huronia as she did not want anyone to know because she was scared that she would be sent back to Huronia and living in Huronia was worse. 32

28. Marie lives in her own apartment in Toronto but cannot live in the community without support, which she currently receives from a community support worker and friends.33 She has had a support worker practically all of her life.34 Marie currently works as a temporary

para. 10.

26 Affidavit of Marilyn Dolmage sworn July 26,2009. Plaintiffs Motion Record for Certification Tab 2, page 9 at para 20.

27 Affidavit of Marie Slark sworn July 26,2009, Plaintiffs Motion Record for Certification Tab 4, at page 33, para.

13.; Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs Motion Record for Certification Tab 2, page 9 at para. 16. 28 Affidavit of Marie Slark sworn July 26,2009, Plaintiffs Motion Record for Certification Tab 4,. at page 33, para.

15; Affidav it of Marilyn Dol mage sworn July 26, 2009, Piainti ff s Motion Record for Certification Tab 2, page 9 at para

17 ,;Transcripls from the Cross-Examination of Mari Iyn Dolrnage held November 24, 2009, Books of Transcripts tab 5, pages 14·15 questions 62-65.

29 Affidavit of Marie Slark sworn July 26, 2009. Plaintiffs Motion Record for Certification Tab 4, at page 33, para.

16; Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 9 at para 18. 30 Affidavit of Marie Slark sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 4, at page 33, para.

17; Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 9 at para 18. J I Affidavit of Marie Slark sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 4, at page 34, para ..

20; Affidavit of Marilyn Dolrnage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 9 at para 19; Transcripts from the Cross-Examination of Marilyn Dolmage held November 24, 2009, Book of Transcripts Tab 5 , pages 13-14 questions 56·60.

12 Affidavit of Marie Slark sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 4, at page 34, para.

20; Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 9 at para 19. ]] Affidavit of Marie Slark sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 4, at page 32, paras.

3-4; Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 8 at para II. 34 Transcripts from the Cross-Examination of Marie Slark held November 24.2009, Book of transcripts Tab I, page II question 66.

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worker for Canadian Staffing." In the summer of 2009, she was laid off from her

employment and had to go on welfare in August to pay her rent."

E. The Litigation Guardians

29. Marie and Pat are not capable of proceeding with this litigation without support.37 The last psychological assessment Patricia underwent was in the 1980's when she was advised that she functioned at a grade 8 level. 38 Similarly, a psychological assessment of Marie, years ago, advised that she functions at grade 9-10 Ievel.?

30. Marilyn Dolmage, a former social worker at Huronia, and her husband, Jim Dolmage, have agreed to act as Marie and Patricia's litigation guardians respectively to assist them in understanding the litigation process, provide timely and accurate instructions to counsel and provide any support they might need_4o The Dolmages have known, and been friends with, Marie and Patricia for many years.41

31. Marilyn Dolmage is a social worker who has a Bachelor of Arts, Bachelor of Social Work and a Masters of Social Work.42 While working at Huronia Marilyn, Dolmage was part of the multi-disciplinary team for each of the residents that she was assigned to, including Patricia and Marie.43 Since Mrs. Dolmage left Huronia in 1973, she has worked along side

)5 Transcripts from the Cross-Examination of Marie Stark held November 24, 2009, Book of Transcripts Tab I,

pages 4-6 questions 10-25; Affidavit of Marie Slark sworn July 26, 2009. Plaintiffs' Motion Record for Certification Tab 4, at page 32·33, paras. 5-8; Affidavit of Marilyn Dulmage sworn July 26,2009, Plaintiffs' Motion Record for Certification Tab 2, page 9-10 at para 22.

30 Affidavit of Marie Slark sworn July 26,. 2009, Plaintiffs' Motion Record for Certification Tab 4, at pages 32-33,

paras. 5-8; Transcripts from the Cross-Examination of Marie Slark held November 24.2009, Book of Transcripts tab I, page 7 question 38; Affidavit of Marilyn Dol mage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 9· 10 at para 22_

J7 Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 8 at para. 9; Affidavit of Jim Dolmage sworn July 26,2009, Plaintiffs' Motion Record for Certification Tab 3, page 24 at para. 6_

J& Transcripts from the Cross-Examination of Patricia Seth held November 24, 2009, Book of Transcripts Tab 2,

page 18 questions 10 1·103.

_,9 Transcripts from the Cross-Examination of Marie Slark held November 24, 2009, Book of Transcripts Tab I, page I 3 questions 81-83_

40 Affidavit of Marilyn Dolmage sworn luly 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, pages 6-7, 17-18 and 20 at paras .. I. 5,71-73 and 76; Transcripts from the Cross- Examination of Marilyn Dolmage held November 24,2009, Book of Transcripts Tab 5, page 4 question II.

41 Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, pages 7 and 10 at paras 8 and 25.

4, Affidavit of Mari lyn Dolmage sworn J uly 26, 2009, Plai ntiffs' Motion Record for Certification Tab 2, pages 6-7 at para. 4. 4.1 Affidavit of Marilyn Dolmage sworn July 26, 2009. Plaintiffs' Motion Record for Certification Tab 2, page 7 at

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people with disabilities and their families to end segregation and create opportunities for inclusion in school, families and community Iife" Mrs. Dolmage has worked along side individuals was disabilities for over forty (40) years."

32. Jim Dolmage is a retired guidance counsellor and former Integration Action Group board member (a provincial advocacy group of family members of individuals with disabilities)." He obtained degrees from: (a) the University of Waterloo in English and Psychology; (b) McMaster University in 1968 in Kinesiology; (c) a teaching certificate from the University of Western Ontario; (d) a specialist teaching certification from the University of Toronto; (e) a Masters Degree from the University of British Columbia; and (f) a counselling certificate from York University.V

3'''1 J.

Both Mr. and Mrs. Dolmage understand the major steps In a class action and

understand their role as litigation guardians to assist Patricia and Marie in their responsibilities as representative plaintiffs.T' Both of them have already taken a number of steps to fairly and adequately represent the interests of Patricia and Marie and the class members including retaining class counsel, communicating between class counsel and Patricia and Marie, preparing affidavits, reviewing the statements of claim and assisting in the drafting of the affidavit of the representative plaintiffs."

para, 5; Transcripts from the Cross-Examination of Marilyn Dolmage held November 24, 2009, Book of Transcripts Tab 5, page 4 question II.

44 Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 7 at para. 7-8.

45 Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 7 at £ara. 8.

·6 Affidavit of Jim Dolmage sworn July 26,2009. Plaintiffs' Motion Record for Certification Tab 3, page 24 at para, 4. 47 Transcripts from the Cross-Examination of Jim Dolmage held November 24,2009. Books of Transcripts Tab 3, pages 5·6. questions 21·24,

4B Affidavit of Mari Iyn Do Image sworn July 26, 2009, Plaintiffs' Motion Record for Cerufication Tab 2, pages 17-19. paras. 71·73; Affidavit of Jim Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 3, pages 26·28 at paras. 21-23.

49 Affidavit of Mari lyn Dolmage sworn July 26, 2009, Plainti ffs' Motion Record for Cert ification Tab 2, page 19 at

para 74; Affidavit of Jim Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 3, page 28 at para. 24.

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34_ Both Mr. and Mrs. Dolmage are capable of fairly and adequately represent the interests of Patricia, Marie and the class, and are committed to fulfilling such responsi bili ti es. 50

F. Other Class Members and Their Common Experiences

35. Marie and Pat were among the most cognitively able residents at Huronia.51 Huronia residents were assessed in admissions unit and assigned to live in various units according to their assessed cognitive abilities, physical disabilities, functional abilities and challenges. 52 Regardless of their relative cognitive level, all were removed from society and placed into Huronia because they were all deemed to have below average cognitive abilities.53

36. During Marilyn Dolmage's time at Huronia there were approximately 2,000 residents living III the facility." All aspects of the daily lives of the residents were dictated by staff and the residents had no control over their lives. Huronia's control of its residents was instilled upon the residents at a very early age which Marilyn Dolmage believes significantly and detrimentally impacted their inability to operate in the community at large, if they had such opportunities later in life. ss

37. At Huronia, there was a system of rewards and punishments in place to enforce compliance with the institution rules and the ultimate incentive was the hope of some day leaving the institution." Those residents seen to 'fail' were sometimes demoted to living

50 Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 20 at

para 76; Affidavit of Jim Dolmage sworn July 26, 2009. Plaintiffs' Motion Record for Certification Tab 3, page 29 at para 26.

51 Affidavit of Marilyn Dolmage sworn July 26,2009, Plaintiffs' Motion Record for Certification Tab 2, page 12 at pam 42. 52 Affidavit of Marilyn Dolmage sworn July 26, 2009,. Plaintiffs' Motion Record for Cernfication Tab 2, page 12 at

rara.41-

") Affidavit of Marilyn Dolmage sworn July 26, 2009,. Plaintiffs' Motion Record for Certification Tab 2, page 14 at

para4L

54 Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page J 3 at para 43.

55 Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 13 at r,ara 48.

6 Affidavit of Marilyn Dolmage sworn July 26,2009, Plaintiffs' Motion Record for Certification Tab 2, page 13 at para 47,

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units were people would greater perceive the disabilities lived such that there was little hope of ever getting out of Huronia. 57

38. Some the common deplorable conditions at Huronia included:

(a) washrooms at Huronia offered little privacy as toilette stalls had no doors;"

(b) Huronia was crowded and the facilities were Iimited;59

(c) outdoor play areas used by the school children were in walled-in-court yards within

the administration units buildings walls;"

(d) sleeping areas in the school girls unit contained row upon row of beds, neatly made, with only a foot or two between them and there was virtually no privacy or personal

. . ibl 61

possessions VISI e;

(e) maintenance crews were kept vel)' busy but everywhere there was pealing paint, worn

floors, drafty windows and plaster in need of repam'" and

(f) many of the residents had no communication with their families and family access and

vi sits were subject to the approval of staff, epically the med ica I doctors. 63

39. Residents were punished for "acting out" or "talking back", and not complying with the rules set by Huronia staff even if they could not understand those rules.64 Common punishments included:

(a) being forced to do manual labour.f

51 Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 13 at Eara 47

8 Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 14 at

Bara 51

9 Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 14 at para 53.

60 Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 14 at rara 52.

I Affidavit of Marilyn Dohnage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 14 at para 50.

62 Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 14 at garu 53 .

• Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 14 at para 55.

M Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 14 at para 56.

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(b) washing the floor while wearing "ticking" dresses (made of pillow licking an ugly

fabric used to embarrass the residenn;"

(c) being hit with brushes lIsed to clean radiators (' rad brushes ,);67

(d) being made to scrub floors with toothbrushes."

(e) having nicer clothes taken away;"

(f) being forced to take medication such as paraldehyde;" and

(g) being put into a "cold pack" (bath of ice)."

40. Less cognitively able residents at Huronia were treated much worse then those working and attending school and they had almost no opportunity to assert there wishes and express concems.72 For example in the living unit called the Pavilion, for people assessed as being more severely disabled:

(a) groups of lip to 50 people were seen in day rooms between meal times where there were no toys or activities for them and the only furniture in such day room were heavy wooden benches;73

(b) if there was a telev is ion, it woul d be mounted behind a wire screen near the ce i I in g; 74

and

6\ Affidavit of Marilyn Dolmage sworn July 26,2009, Plaintiffs' Motion Record for Certification Tab 2, page 14 at para 57.

66 Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, pages 14·15 at para 57,



69 Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 15 at ~ara 58.

G Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 15 at para 58.



7l Affidavit of Marilyn Dolmage sworn July 26,2009, Plaintiffs' Motion Record for Certification Tab 2, page 15 at para 61.

14 Affidavit of Marilyn Dolmage sworn July 26,2009, Plaintiffs' Motion Record for Certification Tab 2, page 15 at para 61,

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(c) residents walked and crawled around in foul smelling day room and the room and the

residents were soiled with urine and feces."

41. In "D Cottage", another residence for men and boys assessed as more severely disabled, the men were fed in one room and immediately taken to an adjacent room after meals where they were sprayed down with hoses to wash them.76

42. Some living units had spray tables instead of bathtubs." The most disabled residents would be dressed in what were known as "monkey suits", being one piece clothing that was difficult to remove, while still some other residents might be partially or fully naked.78 In the hospital area at Huronia residents could be confined to "caged cots" being cribs with bars across the top as well as around the sides.79 Many residents had all their teeth removed as a routine practise as a way to avoid one resident hurting others.i"

43. These experiences were common among the Class Members. People First Ontario, a province-wide organization comprise of, and operated by, individuals who have been labelled with an intellectual or developmental disability, has many former residents of Huronia as its members.F' Peter Park, founder of People First and former resident of a similar residential institution, spoke with a number of those former residents of Huronia, who describe their experiences as common to those described above. 82

44. For all of these reasons, the Plaintiffs respectfully request that this action be certified as class proceeding as the action satisfies all of the criteria enumerated in section 5(1) of the Act

1j Affidavit of Marilyn Dolmage sworn July 26,2009, Plaintiffs' Motion Record for Certification Tab 2, page 15 at para 61.

76 Affidavit of Marilyn Dolmage sworn July 26,2009, Plaintiffs' Motion Record for Certification Tab 2, page 15 at para 62.

77 Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 15 at ~ara 63.

8 Affidavit of Marilyn Dolmage sworn July 26,2009, Plaintiffs' Motion Record for Certification Tab 2, page 15 at

para 63.

79 Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 16 at Eafa 64_

o Affidavit of Marilyn Dolmage sworn July 26, 2009, Plaintiffs' Motion Record for Certification Tab 2, page 16 at para 65_

gl Affidavit of Peter Park sworn August 3, 2009, Plaintiffs' Motion Record for Certification Tab 7, page 85-88 at para 1-15. 82 Affidavit of Peter Park sworn August 3, 2009, Plaintiffs' Motion Record for Certification Tab 7, page 88 at para 12-15.

PART III - ISSUES AND THE LAW

A. SECTION 5(1)(A) CAUSE OF ACTION - HIGH THRESHOLD TO STRIKE

45. Section 5(1 )(a) of the Act provides that it must be plain and obvious to the court that the action "cannot possibly succeed", a threshold which mirrors that of Rule 21 of the Rules of Civil Procedure.

Hollick v, Toronto (2001), 205 D.L.R. (4th) 19 (S.C.C.) at para. 25, Plaintiffs' Book of Authorities, Tab I.

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, Rule 21, Plaintiffs' Factum, Schedule B.

46. The test applicable to whether a reasonable cause of action is disclosed is well-settled: neither the length nor complexity of the issues, the novelty of the cause of action nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with an action.

Hunt v, T & N pic, [1990] 2 S,CK 959 at para. 33, Plaintiffs' Book of Authorities, Tab 2.

Londsbridge Auto Corp. v, Midas Canada Inc" [2009] OJ No. 1269 (S_CJ.) at para, 9, Plaintiffs' Book of Authorities, Tab 3.

47. An order denying certification can effectively terminate a claim on behalf of thousands of individuals. It has the effect of finally disposing of the action. Accordingly, a particularly cautious approach to striking pleadings in this context has been adopted by the courts. In order to find that no cause of action presents itself in these pleadings, this court must find that the Plaintiffs' claim is "doomed to failure". At this stage of the proceedings, it is far from clear that the Plaintiffs' claim has no chance of success given the pleadings and prior jurisprudence: "such issues should be decided at trial on the basis of a full evidentiary

record."

Reynolds v. Kingston (City) Police Services Board, [2007] 0.1. No. 900 (CA.) at paras, 7 and 13, Plaintiffs' Book of Authorities, Tab 4.

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48. Where there is any doubt about the viability of a particular cause of action, it should

be permitted to proceed to trial which will:

Allow the appellant [plaintiff] to air all aspects of his complaint and develop a full record to afford the court the opportunity to rationalize the appropriate scope and limitations of this tort in relation to the other causes of action advanced by the appellant [plaintiff].

Reynolds v. Kingston (City) Police Services Board (2007),84 O.R. (3d) 738 (C.A.) at para. 25, Plaintiffs' Book of Authorities, Tab 5.

49. This is consistent with the admonition of the Supreme Court of Canada with respect to the balance of the statutory certification test, which rejects a preliminary merits test. The question at the certification stage is not whether the claim is likely to succeed, but whether the suit is appropriately prosecuted as a class action.

Hollick v, Toronto (200!), 205 D.LR. (4th) 19 (S.C.c.) at para. 16, Plaintiffs' Book of A uthorities, Tab 1.

50. The Plaintiffs have met the section 5(1)(a) requirement as the pleadings disclose the

following causes of action:

(a) claims for operational negligence occurring after 1963;83

(b) claims for breach of fiduciary duty owed to the Resident Class over the full time

frame of the action;

(c) claims for breach of fiduciary duty owed to the Family Class over the full time frame

of the action; and

(d) F ami ly Law A ct cla i ms of the F am i ly Class ari sing after 1978. S4

Statement of Claim, Exhibit A to the Affidavit of David Rosenfeld, sworn August 4, 2009, Plaintiff's Motion Record for Certification, Tab 6A.

83 The claim in negligence is limited 10 acts occurring after 1963 as a resu It of the Proceedings Against the Crown Act, R..S.O. 1990, c. P. 27, which immunizes Her Majesty for tortious claims prior to 1963.

84 The FLA clai ms are limited temporally to clai ms which arose after 1978, when the statute was enacted, a statute which cannot be given retroactive effect.

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i. Operational Negligence of the Defendant

51. This case involves allegations of operational negligence. The Supreme Court of Canada has held that the "standard of care to be exercised by school authorities in providing for the supervision and protection of students for whom they are responsible is that of the careful or prudent parent". It has also been established in Canadian jurisprudence that the duty of a school to protect its students from abuse is clear and immutable throughout the period that the school is in operation. Given the particular vulnerabilities of the Resident class members, and the high level of control exerted over them, the abuses perpetrated at Huronia were reasonably foreseeable by the Crown in the absence of adequate supervisory procedures.

Myers et al. v. Peel County Board of Education et ai., [1981 J 2 s. C. R. 21, Plaintiffs' Book of Authorities, Tab 6.

Rumley v. British Columbia (2002), 205 D.L.R. (4th) 39 (S.C.C) at para. 18, Plaintiffs' Book of Authorities, Tab7.

52. As a result, the Crown cannot rely on the jurisprudence espoused in Artis, Drady, Eliopolous, Syl Apps and the like. In those cases, no duty of care was found to exist between the plaintiffs and the Crown on the basis of proximity and public policy considerations.

Eliopolous v. Ontario (Minister of Health & Long Term Care). [2006] OJ. No. 4400 (CA.)., Plaintiffs' Book of Authorities, Tab 8.

Drady v. Canada (Minister of Health), [2008J C.A., Plaintiffs' Book of Authorities, Tab 9.

Allis v Canada (Minister of Health), [2008] OJ No. 3766 (CA.), Plaintiffs' Book of Authorities, Tab 10.

Syl Apps Secure Treatment Centre v. B.D. [2007] S.C.) No. 38 (S.C.C.), Plaintiffs' Book of Authorities, Tab II.

53. Unlike those cases, there are no issues relating to either proximity or the characterization of the allegations in the Statement of Claim as operational rather than policy decisions. On the contrary, the pleadings disclose that: (a) Huronia was a Schedule I facility pursuant to the Development Services Act, R.S.O. 1990, c. D. 11 ("DSA") which stipulates specific standards of conduct for the operation of authorized facilities; (b) the same legislation anticipates that the Crown may be held liable for acts committed by its agents or servants; (c)

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the Crown retained and authorized servants, agents, representatives and/or employees to operate Huronia; (d) instructed the same such persons as to the manner in which the facility was to function and operate; and (e) all individuals who resided at Huronia did so as wards of the Crown, and were persons to whom the Crown owed the highest non-delegable, fiduciary, statutory and common law duties.

Developmental Services Act, R.S.O. 1990, c. D.II, Plaintiffs' Factum, Schedule B

54. Particulars of the Crown's alleged operational negligence are enumerated III the

Statement of Claim and include, but are not limited to, the following:

(a) the Crown was solely responsible for the management, operation, control and

administration of Huronia at all material times,

(b) the Crown was solely responsible for decisions, procedures, operations and actions, in the administration of Huronia, including the acts of their employees, servants, officers and agents;

(c) the Crown was solely responsible for the construction, establishment, operation,

maintenance, supervision, inspection and auditing of Huronia;

(d) the Crown and its agents stood in loco parentis to the Resident Class;

(e) the Crown failed to report physical injuries, failed to provide adequate medical treatment, forced residents to work on the premises, failed to report allegations of sexual abuse and misconduct, failed to hire appropriate employees, failed to response to complaints, created and tolerated an atmosphere of fear and failed to safeguard the physical and emotional needs of the residents; and

(f) the Crown had knowledge of these failings and failed to adequately correct them.

Statement of Claim, paras. 26,27,28,29,47,49,53,59, Exhibit A to the Affidavit of David Rosenfeld, sworn August 4, 2009, Plaintiffs Motion Record for Certification, Tab 6A.

55. It is far from plain and obvious that the Crown does not owe a private law duty of care where it has made decisions for the care and control of mentally challenged individuals living under its authority. Moreover, it is far from plain and obvious that the imposition of a private law duty of care would unduly fetter the Crown in fulfilling its duty to protect the safety of

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vulnerable persons within its exclusive control. A statutory authority may be liable in negligence where losses are caused by unreasonable "operational" decisions or where "policy" decisions are not made in the bona fide exercise of discretion.

Kamloops (Cityj v.. Nielson, [1984] 2 S.C.R. 2 rs.c.c.: per Wilson J., at p. 35, Plaintiffs' Book of Authorities, Tab 12 ..

Just v. British Columbia, [1989) 2 S.C.R. 1228 (S.c.c.) per Cory J., at paras. 33 - 48, Plaintiffs' Book of Authorities, Tab 13.

ii. Breach of Fiduciary Duty by the Crown

56.

12.

The framework for identifying a fiduciary relationship has been described as

follows:

(a) the fiduciary has scope for the exercise of some discretion of power;

(b) the fiduciary can unilaterally exercise that power or discretion so as to affect the

beneficiaries' legal or practical interests;

(c) the beneficiary is pecul iar ly vu lnerable to or at the mercy of the fid lie iary hold ing the

discretion or power.

Frame v, Smith, [1987):1 S.C.R. 99 at 136, Plaintiffs' Book of Authorities, Tab 14.

57. This framework establishes that the Crown owed a prima facie fiduciary duty to the

Resident Class in these circumstances.

58. Individuals charged with the responsibility of managing and operating institutions for minors, particularly where those children reside within those individuals' care and control, have a fiduciary relationship with such students or residents. The Supreme Court of Canada has held parents owe fiduciary duties to their children. Similarly, guardians owe a fiduciary duty to their wards. Individuals who are entrusted with the care and control of children, standing in loco parentis, also have a duty to "nurture, care for and protect the lives and best interests of students".

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M(K) v, M. (H), [1992] 3 S.e,R. 6 at 61 - 62, Plaintiffs' Book of Authorities, Tab 15.

K t. R v, British Columbia, 2003 see 51 (CanLII) at para, 38, Plaintiffs' Book of Authorities, Tab 16_

E. D. G. v. Hammer, 1998 CanLiI 15064 (B_C.S.C.), aff'd (200 I) 86 B.C.LR_ (3d) 191 (CA), aff'd [2003]2 S.C.R. 459at para. 40, Plaintiffs' Book of Authorities, Tab 17,

59. This duty includes the provision of a "safe, non-threatening learning environment" and at its core, "the duty remains similar to the duty of a parent. Based on trust and dependency, with inherent vulnerability of the student and an undisputed power imbalance, the relationship is fiduciary in its nature."

E.D"a, v. Hammer, 1998 CanLIl 15064 (B.C.S.C.), aff'd (2001) 86 B.C.L.R. (3d) 191 (C.A.), aff'd [2003] 2 S.C.K 459 at para, 40, Plaintiffs' Book of Authorities, Tab ]7,

60. The fiduciary duty of the Crown to a ward is akin to that of a child to her parent and is

constituted as follows:

"the duty imposed is to act loyally, and not to put one's own or others' interests ahead of the child's in a manner that abuses the child's trust. [ ... ] The parent who exercises undue influence over the child in economic matters for his own gain has put his own interests ahead of the child's, in a manner that abuses the child's trust in him. The same may be said of the parent who uses a child for his sexual gratification or a parent who, wanting to avoid trouble for herself and her household, turns a blind eye to the abuse of a child by her spouse. The parent need not, as the Court of Appeal suggested in the case at bar, be consciously motivated by a desire for profit or personal advantage; nor does it have to be her own interests, rather than those of a third party, that she puts ahead of the child's. It is rather a question of disloyalty -- of putting someone's interests ahead of the child's in a manner that abuses the child's trust."

KLB_ v, British Columbia, 2003 sce 51 (CanLII) at para. 49, Plaintiffs' Book of Authorities, Tab 16.

61. In these circumstances, the Resident Class members were particularly vulnerable to the Crown by virtue of their respective disabilities which initially brought them to the institution. All class members, including the Family Class, had a reasonable expectation that the Crown would act in their best interest with respect to the students' care and education: the students were vulnerable as a result of their age and disabilities, and the Crown assumed

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responsibility for their care. The duties which the Crown owed to the Class Members included the duty to ensure that reasonable care was taken of them, that they were protected from intentional torts and the special responsibility to ensure the residents' safety, all of which the Crown failed to do.

62. The Resident Class were entitled to rely and did rely upon the Crown, to their detriment, to fulfill their fiduciary obligations. Particulars of the Crown's breach of fiduciary duty are enumerated in the Statement of Claim and include, but are not limited to, the following:

(a) the failure to report injuries sustained by residents;

(b) the fai lure to report a llegations of sex ua I abused;

(c) the failure to properly screen applicants for employment;

(d) the failure to supervise the administration and daily activities of Huronia; and

(e) the failure to respond to complaints or recommendations made with respect to both the

institution's conditions and the treatment of residents.

Statement of Claim, paras. 59,60, Exhibit A to the Affidavit of David Rosenfeld, sworn August 4, 2009, Plaintiffs Motion Record for Certification, Tab 6A.

63. Moreover, the Plaintiffs further allege that the Crown breached a fiduciary duty owed to the Family Class in its operation of Huronia and treatment of the Resident Class. The Family Class had a reasonable expectation that the Crown would act in their best interests with respect to the care and control of their Resident Class family members. The harms suffered by the Family Class include loss of care and companionship which arose directly as a result of the Crown's treatment of the Resident Class and was a reasonably foreseeable consequence of its actions.

64. Where the elements articulated in Frame v_ Smith are satisfied, a defendant may, depending on the facts, owe a fiduciary duty to a legal guardian or descendant family member of a person within the defendant's care and control. The issue is a relatively novel one in

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Canadian law and therefore ought to be left for determination on its merits on a full evidentiary record.

Lafrance Estate v. Canada [Attorney General). [2003] O,l No. 1046 (C.A.), Plaintiffs' Book of Authorities, Tab 18, leave to appeal to S.c.c. refused.

65. As Huronia was an exclusivelY government operated institution, the capacity of the Crown to unilaterally exercise its power or discretion in a manner that would impact the rights of the Resident Class was significantly increased and placed the members of the Family Class in a vulnerable position with respect to their familial relationships with the Resident Class visa-vis the Crown. It is far plain and obvious that this claim is doomed to failure at this preliminary stage of the action.

66. As a result, it is not plain and obvious that on the basis of a full evidentiary record, the

Crown may be found to have owed a fiduciary duty to both the Resident and Family Class.

iii. Family Law Act Claims to the Family Class

67_

23.

The Family Law Act ("FLA") claims asserted on behalf of the Family Class are

grounded in statute. Section 61 of the FLA provides that if a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, certain family members are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover, or would have been entitled if not killed. The damages recoverable include an amount to compensate for the loss of guidance, care and companionship.

Family Law Act, R.S.O. 1990, c F3, section 61, Plaintiffs' Factum Schedule B

68. The Plaintiffs advance these claims only for acts or omissions which occurred after 1978 or the date when the FLA came into force, recognizing the prohibition against the retroactivity effect of statutes. Similar claims on behalf of family classes have been certified by courts in Ontario.

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Peter v. Medtronic Inc., [2007) OJ. No. 4828 (S.C,J.), Plaintiffs' Book of Authorities, Tab 19.

69. Given the applicable jurisprudence, the nature of the pleadings and the historical background concerning the Crown's complete control of this institution, it cannot be said that, on a full evidentiary record, the Plaintiffs' claims have no chance of success.

70. The Plaintiffs have met the section 5( I )(a) test: the pleadings disclose a cause of

action.

B. SECTION 5 (l)(b) - THE PRESENCE OF AN IDENTIFIABLE CLASS

71. Section 5(l)(b) of the Act requires that there be an identifiable class. To satisfy this requirement, the class must be composed of "two or more persons". The class must also be objectively defined and limited by rational criteria. Both requirements are met here.

Western Canadian Shopping Centres Inc. v. Dutton, [2001]2 S.CJ. No. 534, (S.C.c.) at para 37, Plaintiffs' Book of Authorities, Tab 20.

Class Proceedings Act, 1992. section 5(\)(b), Plaintiffs' Factum, Schedule B.

72. The Plaintiffs propose the following class:

(a) all persons who resided at Huronia between 1876 and March 31, 2009 (the "Resident

Class"); and

(b) all parents, spouses, children and siblings of persons who resided at Huronia between

1876 and March 31, 2009 (the "Family Class").

73. In order to meet this component of the certification test, the class must be capable of clear definition. It must identify members of the proposed class by objective criteria. While that criteria ought to bear a rational relationship to the common issues asserted by all class members, the criteria should not depend on the outcome of the litigation. It is not necessary that every class member be named or even known.

Western Canadian Shopping Centres v. Dutton, [2001]2 S.C.R. 534, at para. 38, Plaintiffs' Book of Authorities, Tab 20.

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74. There is no doubt that the proposed members of the class can be identified by objective criteria of attendance at Huronia during a fixed time period. These identifying factors set clear boundaries for the class so that it is not unlimited. Membership can be determined without reference to the merits of the action. Moreover, it has been judicially recognized that because classes cannot be limited to persons who suffered harm or damages:

" class descriptions in mass tort cases - and, in particular, cases involving claims for negligence - will almost inevitably be over-inclusive. The inevitability that acceptable class definitions will be over-inclusive was recognized by Winkler J. (now Winkler C.J.O.) in Frohlinger [citation omitted] and Attis [citation omitted]."

Lambert v Guidant Corp., [2009J 0.1. No. 1910 (S.C.1.) at para. 109, Plaintiffs' Book of Authorities, Tab 21.

75. The prohibition is not against over-inclusive class definitions per se but against those that are unnecessarily over-inclusive in that an attempt to limit them would arbitrarily exclude some persons who have an interest in resolution of the common issues.

Lambert v. Guidant Corp., [2009] OJ. No. 1910 (S.C.1.) at para. 109, Plaintiffs' Book of Authorities, Tab 21 .

76. Accordingly, any assertion by the Crown that the Plaintiffs ought to tender evidence that all, or a majority of, class members suffered damages in order to meet the test in section 5(l)(b) ought to be rejected: "[t]o require further evidence a this stage would cause the court to stray too far into the merits of the claims asserted on behalf of the class." Acceptance of such an argwnent would erroneously, in effect, infuse the class definition component with such a requirement.

LeFrancois v. Guidant Corp., [2008] OJ. No. 1397 (S.C.1.) at paras. 65- 66, Plaintiffs' Book of Authorities, Tab 22.

77. In Cloud, the Ontario Court of Appeal approved a class definition of former residential school survivors which was defined by attendance at the school within a certain time period. Given these criteria, the court determined that the proposed class was not open-ended but rather, "circumscribed by their defining criteria" and were rationally linked to the common

~ 27 -

issues because, as in this case, "all class members claim breach of these duties and that they all suffered at least some harm as a result". The approved class was:

(a) all persons who attended the Mohawk Institute Residential School between 1922-

1969;

(b) all parents and siblings of all persons who attended the Mohawk Institute School

between 1992-969; and

(c) all spouses and children of all persons who attended the Mohawk Institute Residential

Schoo I between 1992- J 969.

Cloud v. Canada (Attorney General) (2004), 247 DLR. (4th) 667 (CA.) at para. 47, leave to appeal to the Supreme Court of Canada refused, Plaintiffs' Book of Authorities, Tab 23.

78. There is no principled distinction between the certified class definition in Cloud and

the one proposed here.

79. Additionally, the names and identities of the vast majority of the class members are known and within the power and cont.rol of the Crown based on their historical records. Accordingly, the Crown cannot argue that the class is somehow unlimited or incapable of being divined. In any event, the Crown had filed no evidence on this motion with respect to the propriety of the Plaintiffs' proposed class definition.

80. The Plaintiffs submit that section 5(1 )(b) has been satisfied as there exists an

identifiable class of two or more persons.

C SECTION 5(1)(C): THE CLAIMS OF THE CLASS RAISE COMMON ISSUES

81. Section 5( 1)( c) of the Act requires that the proposed class proceeding raises common issues of fact or law. These common issues need not be determinative of liability and need not even form the dominant issues in the litigation. Rather:

"[w]hen examining the existence of common issues it is important to understand that the common issues do not have to be issues which are determinative of liability; they need only be issues of fact or law that move the litigation forward. The resolution of a common issue does not have to be, in and of itself, sufficient to support relief."

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Campbell t'. Flexwatt Corp (1997),44 B.C.LR. (3d) 343 (CA), p. 359 or para. 53, leave to appeal 10 the Supreme Court of Canada refused, [1998] S.C.C.A. No. 13, Plaintiffs' Book of Authorities, Tab 24_

Carom v. s-e-x Minerals Ltd. (2000), 5 I O. R_ (3d) 236 (c. A _), at para. 41, leave to appeal to the Supreme Court of Canada refused, [2000] S_C.C.A_ No. 660, Plaintiffs' Book of Authorities, Tab 25,

82. The Plaintiffs need only proffer a minimal evidentiary basis to establish the existence

of common issues to meet the test for certification:

"Once provided, the question whether the defendants could obtain summary judgment by providing additional conflicting evidence that demonstrates that there are no genuine issues for trial will not arise and evidence directed at the questions is irrelevant and inadmissible. If this were not correct, every opposed certification motion would be likely to involve, in effect, the same test of the merits as on a motion for summary judgment, and the evidential burden on plaintiffs would be increased enormou s ly."

Tiboni v. Merck Frosst Canada Ltd., [2008] OJ. No. 2996 (S.c.}_) at para. 52, Plaintiffs' Book of Authorities, Tab 26.

83. The requirement that a plaintiff provide "some evidential foundation" for the proposed common issues is a significantly different requirement than the obligation imposed upon a respondent on a summary judgment motion. On certification, an essentially procedural motion, "the question whether one party, or the other, would, or even might, be successful at trial is not at issue. If that were not correct, a full evidential record would be required on every motion for certification where the existence of common issues might be contested."

Anderson v St. Jude, [2003] OJ. No. 3556, (S.CJ.), at para. 46, Plaintiffs Book of Authorities, Tab 27

84. The Plaintiffs' proposed common issues are:

(a) by its operation or management of Huronia from 1876 to 2009, did the defendants breach a duty of care they owed to the Resident Class to protect them from actionable physical or mental harm?

(b) by its purpose, operation or management of Huronia from 1876 to 2009 during the Class Period, did the defendants breach a fiduciary duty owed to the Resident Class to protect them from actionable physical or mental harm?

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(c) by its purpose, operation or management of Huronia from 1876 to 2009 did the

defendants breach a fiduciary duty they owed to the Family Class?

(d) if the answer to any of common issues (aj-fc) is "yes", can the Court make an aggregate assessment of the damages suffered by all class members of each class as part of the common trial?

(e) if the answer to any of common issues (a)-(c) is "yes", were the defendants guilty of

conduct that justifies an award of punitive damages?; and

(f) ifthe answer to common issue (e) is "yes", what amount of punitive damages ought to

be awarded?

85. A review of these common issues demonstrates that the only matters to be determined on an individual basis would be individual causation, individual damages (if any are sought) and the applicability of any limitations period. All other issues, as proposed: (a) presence of a duty of care or fiduciary duty; (b) the standard of care or fiduciary duty owed in the circumstances; (c) the breach of the duty of care or fiduciary duty; (d) the scope of duties owed to the Family Class; and (e) the availability of punitive damages, are common to all class members. Their resolution would advance the litigation in a material way.

86. For any single class members to recover, they must first succeed on these issues. A single trial of these issues would make it unnecessary to adduce evidence more than once of the Crown's conduct in relation to these persons and this institution:

"[a]s in Cloud, the resolution of the debate about the essential legal duties on which the claim is founded and whether these duties were breached, would significantly advance the action to the point where, on my view of the case, only an assessment of damages would remain."

Sauer v. Canada [Attorney General), [2008] OJ. No. 3419 (S.C.J.) at para. 57, Plaintiffs' Book of Authorities, Tab 28.

87. The common issues proposed by the Plaintiffs are essential ingredients of the claims of all Class Members and are consistent with the principles enumerated by the Supreme Court of Canada in Hollick and Rumley. Resolution of the proposed common issues would greatly advance the litigation as a whole. The determination of these issues would avoid the need for

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each Class Member, at tremendous expense, to prove these elements at the trial or his or her own individual claim.

88. In fact, the focus of the common issues, the conduct and duties owed by the Crown, are entirely independent of any particular Class Member's experiences. The determination of these issues would be dispositive of almost all key elements of liability.

89. The Crown cannot argue that commonality might be absent because the issues directed at a breach of the standard of care can be broken down into a series of issues relating to particular conditions that may not have been experienced by every member of the class:

"As far as the standard of care is concerned, the focus at trial of the common issues will be on the adequacy of the measures taken by the defendants to prevent adverse consequences .... I do not believe that the possibility that different members of the class may have suffered from difference adverse consequences to their health detracts significantly from the commonality of the issue."

Anderson v, St. Jude Medical Inc .. [2003] OJ. No. 3556 (S.C.1.) at para. 40, Plaintiffs Book of Authorities, Tab 27.

90. The common issues need not predominate over non-common issues but the court must consider the significance of the common issues in relation to the individual issues. The critical question is whether resolution of the common issues would significantly advance the action. This is not a case where the common issues could be said to be negligible III comparison to the individual issues. The common issues are at the core of the case.

Hollick v Toronto (2001), 205 D.LR. (4th) 19 cs.c.c.i at para. 21, Plaintiffs' Book of Authorities, Tab 1.

Cloud v. Canada (Attorney General), (2004),247 D.L .. R. (4th) 667 (C.A.), at para. 65, leave to appeal 10 the Supreme Court of Canada dismissed, Plaintiffs' Book of Authorities, Tab 23.

91. The Supreme Court of Canada has rejected arguments that questions surrounding whether a defendant's conduct fell below acceptable standards are inescapably individualistic: "class members share an interest in the question of whether the appellant breached a duty of care. On claims of negligence and breach of fiduciary duty, no class member can prevail

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without showing duty and breach. Resolving those Issues, therefore IS necessary to the resolution of each class member's claim."

Rumley v. British Columbia (2002), 205 D_L.R. (4th) 39 (S_C.c.) at para. 27, Plaintiffs' Book of Authorities, Tab7.

92. In this case, the proposed common issues demonstrate thattheir resolution will require a factual and legal inquiry which need not involve any class members but will at the same time, significantly advance their claims. If the Crown owed no duties to the proposed classes, this finding would dispose of the entire proceeding.

93. Conversely, if the Crown did owe a duty, then the trial judge can proceed to consider whether it breached its common law or fiduciary duties. This would substantially reduce the work to be done by the trial judge at individual trials. Once the common issues were determined, each individual would only need to establish that he or she attended HUTOnia at the appropriate time and suffered damages as a result of attendance.

94. The Crown cannot argue that the applicable limitation periods with respect to each of the Class Members' claims constitute individual issues that somehow diminish the commonality of the proposed common issues. The Ontario Court of Appeal has made it clear that the resolution of the common issues can still an action "up to the point where only harm, causation and individual defences such as limitations remain for determination [which] moves the action a long way."

Cloudv. Canada (Attorney General) (2004),247 D_L.R. (4th) 667 (C.A) at para. 82, leave to appeal to the Supreme Court of Canada dism issed, Plaintiffs' Book of Authorities, Tab 23.

95. Numerous actions have been certified as class proceedings despite the fact that

complex issues of damages or causation might require individual trials.

Anderson et al v. Wilson et at (1999), 44 O.R. (3d) 673 (CA.), at 683- 684 (p, 9 QL), Plaintiffs' Book of Authorities, Tab 29_

Carom v. Bre-X Minerals Ltd. (2000), 5 I O.R. (3d) 236 (C.A.), at paras. 4J, 49, 56, 58 - 61 , Plaint i ffs' Book of Authorities, Tab 25_

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Anderson v.. St. Jude, [2003]OJ. No. 3556 (S.CJ .), at para. 51, Plaintiffs Book of Authorities, Tab 27

Sauer v. Canada (Attorney General), [2008] OJ. No. 3419 (S.C.]_) at para. 58, Plaintiffs' Book of Authorities, Tab 28.

96. Even in cases such as Rumley or Cloud, where large numbers of individual class members had suffered a variety of damages as a result of physical, emotional or sexual abuse over many decades, the Supreme Court of Canada and the Ontario Court of Appeal nevertheless certified the actions as class proceedings, holding that the individual issues such as causation and damages were "relatively minor aspect]s] of the case", in terms of both complexity and duration.

Rumley v, British Columbia (2001), 205 D.L.R. (4th) 39 rs.c.c.: at para. 36, Plaintiffs' Book of Authorities, Tab 7.

Cloud v. Canada (Attorney General) (2004),247 D.L.R. (4th) 667 (C.A.) at para. 69, leave to appeal to the Supreme Court of Canada dism issed, Plaintiffs' Book of Authorities, Tab 23.

97. The scope of a duty owed and its concomitant breach has been repeatedly certified as a

common issue in class proceedings, holding that:

"It is an appropriate common issue because it focuses upon the Crown's knowledge and conduct, and can be resolved without the participation of class members, and, depending on its resolution, will either advance or dispose of their claims."

Wheadon v. Bayer Inc., [2004] N.J. No. 147, (S.CTD.) at para. 133, Plaintiffs' Book of Authorities, Tab 30.

98. The very presence of individual issues does not defeat the purpose or propriety of certification. The Act contemplates such a bifurcated process, where necessary and appropriate. Moreover, the "existence of individual issues does not detract from the reality that there are significant common issues, the resolution of which will advance the progress of the litigation".

Wilson v. Servier Canada Inc. (2000),50 OR. (3d) 219 (8.C.),at paras. I I I- 112, leave to appeal denied, (2000), 52 O. R. (3d) 20 (Div. Ct.), leave to appeal to the Supreme Court of Canada dismissed, Plaintiffs' Book of Authorities, Tab 31.

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99. The jurisprudence has evolved to a stage where "idiosyncratic causation and damages issues did not prevent certification in Bywater, Cloud, Tiboni, or in other negligence cases, where disparate harm to class members required individual assessments of both causation and

damages."

Saller v. Canada (A ttorney General), [2008] O.J. No. 3419 (S. CJ _) at para. 58, Plaintiffs' Book of Authorities, Tab 28.

100_ Moreover, the Crown cannot rely on any possible defences that it might raise later in individual actions: "[i]n the absence of a statement of defence, or any particulars of these defences and claims, they must at this stage be considered to be speculative" [emphasis added].

Anderson v St. Jude, [2003]OJ. No. 3556 (S,C.l), at para. 60, Plaintiffs Book of Authorities, Tab 27.

i. Aggregate assessment of monetary relief

101. Lastly, the Act also provides a process for determining aggregate monetary relief for a class pursuant to sections 23 and 24, which may render the necessity of any individualized claims analysis unnecessary and irrelevant.

Class Proceedings Act. 1992, sections 23 and 24, Plaintiffs' Factum, Schedule B.

102. Section 24 of the Act provides for aggregate monetary relief to class members if liability can established at the common issues trial. Pursuant to that section, the Crown may oppose the entitlement to such relief at the common issues trial and argue that individualized proof is necessary. What is critical to note is that the certification application is not the appropriate stage at which to resolve the question of aggregate relief. This is properly done, pursuant to the statutory framework, at the common issues trial itself

103. Accordingly, the Plaintiffs respectfully submit that they have satisfied the criteria of section 5(1)(c) of the Act. The claims of the Class raise common issues, the resolution of which would significantly move the action forward.

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D. SECTION 5(1)(D): A CLASS ACTION IS THE PREFERABLE PROCEDURE

104. The preferability inquiry has three overarching goals at its core: (a) judicial economy; (b) access to justice; and (c) behaviour modification. The preferability requirement is based on two concepts. The first is whether the class action would be a fair, efficient and manageable method of advancing the claim. The second is whether the class action would be preferable to other reasonably available means of resolving the class members' claims.

105. The preferability determination is required to be made by assessing the common issues in relation to the claim as a whole which includes any individual issues as well as common

Issues.

Hollick v. Toronto (200 I) 205 D. L. R. (4th) 19 rs.c C.), at paras. 27 - 28, Plaintiffs' Book of Authorities, Tab I.

Ctoodv Canada (Attorney General) (2004),247 D.L.R. (4th) 667 (CA) at para 73, leave to appeal to the Supreme Court of Canada dismissed, Plaintiffs' Book of Authorities, Tab 23.

106. The evidence filed on behalf of the Plaintiffs in this action demonstrates that both

access to justice and judicial economy concerns are paramount to this motion and can only be realized by way of a class proceeding.

107. Former residents of Huronia are amongst the most vulnerable peoples in society. People with intellectual disabilities face among the highest rates of physical and sexual abuse in Canada and are twice as likely to be victims of violence. In particular, 67% of women with disabilities have been physically or sexually assaulted as children.

A ffidavit of Peter Park sworn August 3, 2009, Plaint i ffs' Motion Record for Certification Tab 7, page 89 at para 18, citing the Canadian Association for Community Living National Report Card 2008 at Exhibit "8".

108. People with intellectual disabilities are also amongst the poorest persons in Canada. Over 75% of adults labelled with an intellectual disability and not living with a family member live in poverty and are three times more likely to live in poverty than non-disabled Canadians. Further, working aged people with intellectual disabilities are more than twice as

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likely to be receiving provincial social assistance. Approximately 70% of adults with an intellectual disability are unemployed or out of the labour force and the average earnings of people with disabilities is significantly lower than people without disabilities: $13,500 as opposed to $32,085.

Affidavit of Peter Park sworn August 3, 2009, Plaintiffs' Motion Record for Certification Tab 7, page 90 at para 23, citing the Canadian Association for Community Living National Report Card 2008 at Exhibit "B.

109. Statistics Canada's recent Participation and Activity Limitation Survey 2006, found that even if people with intellectual disabilities do have earnings through employment, they are, on average, significantly lower than compared to the income earnings of others.

Affidavit of Peter Park sworn August 3,2009, Plaintiffs' Motion Record for Certification Tab 7, page 90 at para 24, citing Statistic's Canada's Participation and Activity Limitation Survey 2006 at Exhibit "D"_

110. The prosecution of this class action will be extremely expensive. The fees and disbursements that estimated to be necessary to be incurred in prosecuting this action will be in excess of $300,000 for up to an including the certification motion and in excess of $1,000,000 for up to and including a trial of the common issues. It is totally impossible for an individual class member to commence and continue protracted litigation against the Crown.

Affidavit of David Rosenfeld sworn August 4, 2009, Plaintiffs' Motion Record for Certification Tab 6, page 45 at para. 17.

1 ) 1. The Plaintiffs have filed evidence that without this class action most, if not all, of the former residents at Huronia would not be able to obtain redress or compensation for the abuses they suffered as they would likely not commence individual actions on their own. This class action is the only means for the class members to seek redress.

Affidavit of Peter Park sworn August 3, 2009, Plaintiffs' Motion Record for Certification Tab 7, page 91 at para 28.

112. Moreover, it is necessary to assess the litigation as a whole and to adopt a practical cost-benefit approach to the preferability requirements. In this case, a determination of the

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common issues would determine the major liability issues once and for all. The Crown has not proposed any alternatives whatsoever:

"In order for counsel to be persuasive in developing a submission that another procedure is to be preferred, it is essential that the defendant provide the court with a concrete, workable alternative litigation proposal which demonstrates that the plaintiffs will not be deprived of their day in court." [emphasis added]

The Honourable Justice W.K. Winkler (as he then was), "Managing the Class Action Lawsuit: The Judicial Perspective", Canadian Institute Conference on Class Actions, (October 4, 1996) at II, Plaintiffs' Book of Authorities, Tab 32.

113. Accordingly, it is not open to the Crown to argue that there are any other legitimate means of redress other than litigation. Even where there existed an alternative dispute resolution procedure for which class members were in fact entitled and eligible to access, the Ontario Court of Appeal has still found that a class proceeding was preferable. The reasoning in Cloud and Pearson applies with even more force in this case as there exists no alternative dispute resolution process at all and those were present in both Cloud and Pearson.

Cloud v. Canada (Attorney General) (2004), 247 D. L. R. (4th) 667 (CA) at paras. 92 - 93, leave to appeal to the Supreme Court of Canada dismissed, Plaintiffs' Book of Authorities, Tab 23.

Pearson v lnco, [2005] OJ. No. 4918 (CA.), Plaintiffs' Book of Authorities, Tab 33.

114. Where class periods span long, protracted, historic periods, an inference may be drawn that the class members are generally of an advanced age, making the goal of access to justice and timely determination of their claims an overriding concern:

"The class period spans a period of over 75 years. At this point, a reasonable inference can be drawn that there are elderly potentia! class members for whom further delay represents significant prejudice. Those members of the potential class are entitled to have a determination of whether this proceeding is certifiable as a class action in a timely manner."

Baxter v. Canada, [2005] OJ. No. 2165 (S.C.1.) at para. 13, Plaintiffs' Book of Authorities, Tab 34.

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115. For all of these reasons, the best avenue by which to have these claims adjudicated upon swiftly, fairly and for all, is by way of class action. This would ensure the Class has access to meaningful redress, in an arena where it the inherent inequalities of bargaining powers of these parties can be equalized.

i. Access to Justice

116. Access to justice has consistently been found by Canadian courts to be the overriding consideration in making the preferability assessment

117. In this case, the failure to certify the actions as class proceedings would effectively deny access to the courts for hundreds of elderly, mentally challenged claimants, largely due to their respective financial circumstances. The legal costs of proceeding individually, especially against an adversary as formidable as the Crown of Ontario, would far exceed the class members' individual damages. The Plaintiffs have tendered uncontradicted evidence that the costs and expenses associated with complex litigation, particularly against this Crown, makes individual litigation an impossibility.

118. For these Class members, there are no "alternative avenues of redress apart from individual actions". Furthermore, "individual actions would be less practical and less efficient than a class proceeding". Certification would therefore go some distance in increasing access to justice in the present case.

Rumley v, British Columbia (200 1),205 D.L.R. (4th) 39 (S.C.C.) at para. 37, 38, Plaintiffs' Book of Authorities, Tab 7_

Hollick v Toronto (2001),205 DLR. (4th) 19 (S.C.C.), at para. 31, Plaintiffs' Book of Authorities, Tab I.

119. Furthermore, the transactional expenses in terms of judicial time, court costs, legal fees and expert costs would be duplicated unnecessarily. In the context of this action, the twin objectives of judicial economy and increased access to justice require a class proceeding and lead inexorably to the conclusion that a class proceeding is the preferable procedure.

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120. Where a defendant is vigorously denying liability, the costs of proving the common issues are an overwhelming and prohibitive deterrent to the bringing of individual claims. Only a class proceeding would place the parties on an even footing. Absent a class action, "who could individually afford this type of litigation?"

Bendall v, McG han Medical Corp. (1993), 14 0, R. (3 d) 734 (Gen. Div.) at 744, Plaintiffs' Book of Authorities, Tab 35.

121. The Crown cannot argue that no individual litigation at all would be preferable to a class action. The courts have explicitly rejected this proposition: "[alrguments that no litigation is preferable to a class proceeding cannot be given effect".

J /76560 Ontario Limited et al v. The Great Atlantic and Pacific Company of Canada Limited (2002) O.R. (3d) 535 at para. 45, appeal dismissed, Plaintiffs' Book of Authorities, Tab 36

122. The particular vulnerability of the Class Members in this case cannot be overemphasized. The Plaintiffs have little experience with individual litigation, if any. While litigation is always a difficult and challenging process, it would prove to be even more so for this constituency of individuals. Permitting the action to proceed as a class action may assist in mitigating these difficulties that would be faced by individuals in this case.

Rumley v, British Columbia (2001), 205 D.LR. (4th) 39 (S.CC) at para. 39, Plaintiffs' Book of Authorities, Tab 7,

Cloud v. Canada (Attorney General), (2004),247 D,L.R, (4th) 667 (CA.) at paras. 87-88, leave to appeal to the Supreme Court of Canada dismissed, Plaintiffs' Book of Authorities, Tab 23.

123. Lastly, the social barriers faced by former residents favour a common, collective process to both explain and deal with the significance of those barriers, and to elicit the relevant evidence. A class proceeding is the only way to marshal the expertise required to assist individual residents in communicating their testimony effectively.

Rumley v. British Columbia (2001), 205 D.L.R. (4th) 39 (S.Cc.) at para. 39, Plaintiffs' Book of Authorities, Tab 7.

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Cloud v" Canada (Attorney General) (2004), 247 DLR, (4th) 667 (CA) at para. 87, leave to appea I to the Supreme Court of Canada d i sm i ssed, Plaintiffs' Book of Authorities, Tab 23.

ii. Judicial Economy

124. The central issue in this action will be the nature and extent of the duty owed by the Crown to the Class Members and whether that duty was breached. Those issues are most amenable to collective resolution in a class proceeding. While certain issues of injury and causation may have to be litigated individually following resolution of the common issues, the individual issues will be, as in Rumley, a "relatively minor aspect of this case".

Rumley v, British Columbia (2001),205 D.L.R. (4th) 39 (S.c.c.), at para. 37-38" Plaintiffs Book of Authorities, Tab 7,

125. There are no other means of resolving these claims that would be more practical or more efficient. Individual actions would be far less practical and far less efficient. If individual trials were required, each individual who resided at Huronia would have to prove the legal relationship of the Crown in relation to the former residents, the extent of the duty and the standard to be met. There is no reason to do this more than once.

126. If individual trials were required as a means to resolve these matters, each individual who resided at Huronia would have to prove the legal relationship between the Crown and the institution, the legal relationship of the defendant to the resident, the scope and content of the duty of care, the standard of care, the conditions of the institution and the treatment experienced. A common issues trial would make it unnecessary to adduce evidence of the history, the establishment and operation of Huronia more than once. As the Supreme Court of Canada determined:

"Issues relating to policy and administration of the school, qualification and training of staff, dormitory conditions and so on are likely to have common elements ... The overall history and evolution of the school is likely to be importance background for the claims generally and it would be needlessly expensive to require proof in separate ind i vid ual cases."

Rumley v. British Columbia (2001), 205 D.L.R. (4th) 39 (S,C.c.) at para. 38, Plaintiffs' Book of Authorities, Tab 7.

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127. These findings were echoed by the Court of Appeal in Cloud, which held that:

"The commons issues require resolution one way or the other. It is no less fair to the respondents to face them III a single trial than in many individual trials Nor, at this stage, is there any reason to think that a single trial would be unmanageable. The common issues centre all the way the respondents ran the School and can probably be dealt with even more efficiently in one trial than in 1,400."

Cloud v. Canada (Attorney General) (2004) 247 D.LR. (4th) 667 (CA) at para. 89, leave to appeal to the Supreme Court of Canada dismissed, Plaintiffs' Book of Authorities, Tab 23.

128. Proceeding by way of individual trials would require that all of the same parties' evidence, technical, expert or otherwise, would have to be repeated in thousands of individual actions. This gives rise to the very real potential that individual actions by Class Members, who resided at Huronia, over the same time period, would yield inconsistent findings of fact and law on these issues. No purpose would be served by individual actions.

Rumley v. British Columbia (2001),205 D.L.R. (4th) 39 (S.C,c.)_, at para. 38, Plaintiffs Book of Authorities" Tab 7.

129. There would be no purpose served in requiring each Class Member to advance a separate challenge to the Crown's conduct at issue in this case, The determination of the issues that are common to all Class Members should be made in one action, There is no

purpose to be served by the court assessing these issues more than once and expending scarce judicial resources to do so.

Wilson I!. Servier Canada Inc. (2000), 50 OK (3d) 219 (S.C.J .), at para. 124, Plaintiffs Book of Authorities, Tab 31.

130. Judicial economy is also served given that Class Members will not need to participate in the initial discovery process or the trial of the common issues, as defined above. If the Crown is successful, the court and the Class Members, would also be saved from addressing these procedures.

Nantais v, Telectronics Proprietary (Canada) Ltd. (1995),25 O.R. (3d) 331 (Gen.Div.), at p, 339 - 340 (p, 8 QL), Plaintiff's Book of Authorities, Tab 37

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Wilson v_ Servier Canada Inc. (2000), 50 OK (3d) 219 (S.C.J.), at para. 125, Plaintiff's Book of Authorities, Tab 3 l.

131_ Where the duplication of productions, discovery and trials to establish common, and generally identical background facts and circumstances can be avoided for thousands of individual claims, a class proceeding is the preferable procedure. In this case, a class proceeding would achieve the aim of judicial economy as it would: (a) avoid duplication in the determination of these issues for hundreds of Class Members; (b) spread the costs of prosecution over the entire class; and (c) only require the Crown to defend one, rather than a multitude of individual actions.

132. Any other means of resolving the claims through some type of alternative court procedure would be much less practical and far less efficient. Individual litigation in any form affords no advantages over a class proceeding. Rather, to the contrary, a class proceeding offers a number of benefits, to all parties, making it the preferable procedure:

(a) whatever limitation period if found to be applicable to the claim is tolled for the entire

class;

(b) a formal notice program is created which will alert all interested persons to the status

of the litigation;

(c) the class is able to attract a sophisticated counsel through the aggregation of potential

damages and the availability of contingency fee arrangements;

(d) a class proceeding prevents the defendant from creating procedural obstacles that

individual litigant may not have the resources to clear;

(e) class members are given the ability to apply to participate in the litigation if desired;

(f) the action is case-managed by a single judge;

(g) the court is given a number of powers designed to protect the interests of absent class

members;

(h) class members are protected from any adverse cost award in relation to the common

issues stage of the proceedings;

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0) in terms of the resolution of any remaining individual issues, a class proceeding

allows the cOUl1 to create simplified structures and procedures; and

U) through the operation of statute, any order or settlement will accrue to the benefit of

the entire class, without the necessity of resorting to principles of estoppel or abuse of process.

Wilson v Servia Canada Inc. (2000), 50 O. R. (3d) 219 (S.CJ), at para. I 16, Plaintiff's Book of Authorities, Tab 31.

133. As stated by the Honourable Mr. Justice Smith in Endean:

"[The] object of the Act is not to provide perfect justice, but to provide a 'fair and efficient resolution' of the common issues. It is a remedial, procedural statute and should be interpreted liberally to give effect to its purpose. It sets out very flexible procedures and clothes the court with broad discretion to ensure that justice is done to

all parties The suggested problems identified by counsel with respect to

the assessment of damages can be accommodated with the flexible procedures made available by the Act."

Endean v, Canadian Red Cross SOCiety (1997), 148 D.L.R. (4th) 158 (ReS.c.), Plaintiffs' Book of Authorities, Tab 38.

iii. Behaviour Modification

134. The fact that Huronia was closed by the Crown in March 2009 does also mean that the goal of behaviour modification articulated by the Act is now unimportant. On the contrary: as in other cases of institutional abuse, "a successful prosecution of this case as a class proceeding would act as a warning, and as a deterrent" to other entities charged with operating institutions for vulnerable persons in OUT society who are tempted to subordinate their obligations and duties of care. To this extent, the certification and continuation of this action as class proceeding would accord with the objective of behaviour modification.

Tiboni v. Merck Frost Canada us, [2008] 0.1. No. 2996 (S.C.J.) at para. 110, Plaintiffs' Book of Authorities, Tab 26.

135. The Plaintiff respectfully submits that section 5(1)(d) of the Act is satisfied and that the prosecution of this action as a class proceeding would be the preferable procedure.

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E. SECTION 5(1)(E): THE PROPOSED REPRESENTATIVE PLAINTIFFS ARE ADEQUATE, COMPETENT AND HAVE NO CONFLICT WITH THE CLASS

136. In determining the adequacy of a proposed representative plaintiff, the court should consider the motivation of the individual and the competence of counsel, A proposed representative need not be 'typical', an American concept which has been rejected by Canadian legislators and courts, and need not even be the best possible representative.

Western Canadian Shopping Centres Inc. v. Dutton, [2001) 2 S_CJ. No. 534, (S.C.c.), at para. 41 ,Plaintiffs' Book of Authorities, Tab 20.

137. The test for whether a proposed representative plaintiff is adequate has been described by the courts in the following manner:

" ... the most important considerations in determ in ing whether a plaintiff was appropriate were whether there was a common interest with other class members and whether the representative plaintiff would 'vigorously prosecute' the claim. It has been established that there is a common interest and J can see no reason why the representative plaintiff would not vigorously prosecute the claim. Any individual plaintiffs who feel that the representative plaintiffs would not represent them may opt out ofthe class proceeding and pursue individual actions .. "

Campbell v. Flexwatt (1998),44 B.C.L.R. (3d) 343 (C.A.)., p. 364, Plaintiffs' Book of Authorities, Tab 24.

138. The fact that different class members may have had varying experiences or suffered different injuries "is a matter for subsequent individualized damage hearings and is not an obstacle to the appointment of a representative plaintiff'.

Wheadon v. Bayer Inc., [2004] N_J. No. 147 (S.CT D,) at para. 165, Plaintiffs' Book of Authorities, Tab 30.

139. The proposed representative plaintiffs are capable of representing the Classes and have appointed litigation guardians to assist them in this respect.

140. To date, the representative plaintiffs and their respective litigation guardians have given evidence of their support for the conduct of this litigation and have been integrally involved in all litigation steps. The evidence demonstrates that these proposed Plaintiffs and

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their litigation guardians have undertaken the following steps, amongst other things, to advance this litigation on behalf of the Classes:

(a) retention of Class Counsel;

(b) working with counsel to prepare affidavits and instructing counsel as required;

(c) executing retainer agreements with Class Counsel;

(d) obtaining documents and other information relevant to the litigation at the request of

counsel;

(e) learning the general conduct of a class action to instruct counsel and represent the

Classes; and

(0 attended cross-examination on their affidavit evidence.

141. The proposed representative Plaintiffs have also given evidence of their willingness and ability to act for the Class, having shared many of the same experiences in relation to their time spent at Huronia, or their knowledge of how that has affected their family members who were consequently affected. There is no apparent impediment to their ability to fairly and adequately represent the interests of the Class, with the assistance of their litigation guardians, nor is there any indication of a conflict between them and other similarly situated Class Members.

142. While the Crown has advised of its position that it intends to challenge the propriety of Ms. Dolmage acting as litigation guardian given her previous employment some thirty-seven (37) years ago with Huronia, the Crown has yet to file any evidence in this respect, despite the passage of almost one year since this action was commenced. As a result, the Plaintiffs reserve their rights to file reply written argument on that issue once in receipt of such evidence, if any.

143. In any event, a former employee of the Crown is not, without more, sufficient to justify the inference that that individual would have a consequential conflict of interest or be an unsuitable representative for the class. Ms. Dolmage is a former employee of Huronia, a

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member of the family class and has a substantial legitimate interest in this proceeding. Moreover, Ms. Dolmage has worked with disabled individuals for over forty (40) years and has been a strong voice within voluntary associations established to promote awareness with respect to the effects of institutionalization.

Caponi 1/ Canada Life Assurance Co., [2009] OJ. No. 114 (S.C.1.) at para. 55, Plaintiffs' Book of Authorities, Tab 39.

Affidavit of Marilyn Dolmage, sworn July 26,2009, at para. 8, Plaintiffs' Motion Record for Certification, Tab 2.

144. In any event, the controlling test for a finding of 'conflict' between a litigation guardian and the individual he seeks to represent or assist is as follows:

"Will the proposed litigation guardian be able to put aside his own interests and represent the dependant person in the litigation in a manner that will promote that person's best interests?"

Zabawskyj v. Zabawskyj, [2008] OJ. No. 1650 (S.c.J) at para. 29, Plaintiffs' Book of Authorities, Tab 40.

145. The test is where an adverse interest between the litigation guardian and the dependent person can be established by cogent evidence and in most cases, as in this case, it will be desirable "to have a trusted family member or a person with dose ties to the dependent adult act as litigation guardian." Courts will require something more than some "perception of 'conflict of interest' [in order to] disqualify or remove a person from being litigation guardian. Some actual conduct or misconduct [is] required." There is no evidence whatsoever in this case that such a conflict exists, even remotely.

Gronnerud (Litigation Guardians of) v Gronnerud Estate, [2002]2 S.C.R. 417 (S.Cc.) at para. 21, Plaintiffs' Book of Authorities, Tab 4 L

Shemesh v. Go/dlist, [2008) OJ No. 1629 (S.c.J.) at para. 37, Plaintiffs' Book of Authorities, Tab 42.

146. While the Plaintiffs intend to file further written argument with respect to this issue once in receipt of the Crown's late-blooming affid.avit evidence, it is nevertheless their

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position that the Crown cannot meet the test for removal of Ms. Dolmage as litigation guardian and that it constitutes and a baseless collateral attack on the motion for certification.

F. SECTION 5(1): AN APPROPRIATE LITIGATION PLAN HAS BEEN TENDERED

147. Section 5( 1)( c) of the Act also requires a representative plaintiff to develop and tender a reasonable plan for litigating the action and providing notice.

148. However, courts have also founds that "neither the parties nor the court is blessed with perfect foresight at this stage of the proceeding and the future courts of the litigation may depend upon the findings of fact and the decisions made at the trial of the common issues". For this reason, the Act confers wide discretion on the trial judge to decide how the individual issues ought to be dealt with. The primary importance of this statutory provision has been emphasized and relied upon by the Ontario Court of Appeal.

LeFrancois v. Guidant Corp., [2008] O.J. No. 1397 (S.C.J.) at para. 97, Plaintiffs' Book of Authorities, Tab 22.

Cloud v. Canada (Attorney General) (2004), 247 D.L.R .. (4th) 667 (CA) ar para. 47, leave to appeal to the Supreme Court of Canada was refused, Plaintiffs' Book of Authorities, Tab 23.

149. The Plaintiffs have proposed a plan to the prosecution of this action. Generally, the litigation plan involves the following:

(a) assuming the action is certified, the Court will be asked to approve a comprehensive notice program to apprise the Class members of the certification of the action as a class proceeding;

(b) the Court will be asked to appoint an independent person to receive opt-out notices

and provide to the court the names of all persons opting out;

(c) the Court will be asked to give directions with respect to the exchange of documentary

productions, examinations for discovery and the trial of the common issues; and

(d) counsel will post notices on its website.

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Litigation Plan, Exhibit "B" to the Affidavit of David Rosenfeld, sworn August 4,2009, Plaintiffs' Motion Record for Certification, Tab 68_

150. If the common issues are determined in favour of the Class and some award of aggregate damages is made, distribution of such damages would be made on the following basis:

(a) the total amount of aggregate damages would be apportioned to the Resident Class

and Family Class in a proportion and amount to be determined by the court;

(b) for Resident Class members, his or her pro rata share of punitive damages based upon each Approved Claimant's duration of residence at Huronia, would be determined and distributed; and

(c) for Family Class member, his or her pro rata share of punitive damages based upon each Approved Claimant's (or family member's) duration at Huronia, would be determined and distributed.

Litigation Plan, at p. 78 at para. 28, Exhibit "B" to the Affidavit of David Rosenfeld, sworn August 4, 2009, Plaintiffs' Motion Record for Certification, Tab 6B.

151. The Plaintiffs have also developed a comprehensive Individual Damages Assessment Process for the processing and determining residual individual issues:

(a) within a time prescribed by the court, each Approved Claimant will be invited to attend in a place designated by the Court for a an impact interview ("Impact Interview"), to be conducted by an multidisciplinary panel of three (3) practitioners with experience dealing with the persons living with disabilities, institutional abuse and institutionalization ("Interview Panel");

(b) the members of the Interview Panels will be chosen by plaintiffs' counsel in consultation with the Crown and the court, to ensure the appropriate make up and experience ofthe Interview Panels;

(c) the Interview Panel will conduct an Impact Interview with each Approved Claimant and will prepare, within thirty (30) days of the Impact Interview, ajoint report setting out the Claimants' experiences at Huronia and the Interview Panel's conclusions as to the impact of the Approved Claimant's attendance at Huronia ("Joint Impact Report");

(d) within thirty (30) days of the Joint Impact Report, counsel for the parties will meet to

discuss the damages associated to each Individual Claimant ("Damages Meeting"), if any;

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(e) if the parties are able to agree on the appropriate level of damages for an Approved Claimant, the defendant shall, within thirty (30) days of such agreement, make the payment to the class member;

(f) if the parties are unable to agree on the appropriate level of damages for an Approved Claimant, within thirty (30) days of the Damages Meeting, counsel for the parties will attend before a referee designated by the Court to determine causation and the damages attributable to each Approved Claimant ("Damages Hearing");

(g) no further evidence is permitted at the Damages Hearing save for the Joint Impact Report, and a three (3) page statement from the parties' own designated damages/causation expert;

(h) the time and place of the Damages Hearing will be set by the referee, but all Damages

Hearings are to be scheduled within thirty (60) days of the Joint Impact Report;

(i) the procedures and conduct of the Damages hearing will be set by the referee subject

to the following:

(i) all evidence and submissions shall be presented at the Damages Hearing which shall not take more than two (2) hours in total;

(ii) offers to settle are permitted up to one (1) week prior to the scheduled Damages Hearing;

(iii) two (2) weeks prior to the Damages Hearing, each party shall serve and file with the referee a three (3) page statement from the parties' own designated damages expert, if the party so chooses;

(iv) the referee may also make requests for further documentation from the parties at any time;

(v) each party shall have an opportunity to provide oral submissions, not to exceed fortyfive (45) minutes per party;

(vi) the conduct of the Damages Hearing and all procedures shall be determined by the referee having regard to the purposes and goals of the CPA, subject to any order of the Court providing otherwise;

(vii) the referee shall render a decision, with reasons, within sixty (60) days after the Damages Hearing;

(viii) the referee's decision is final and binding on the parties;

(ix) should the referee's decision be in favour of the Approved Claimant, the defendants shall pay any damages awarded to the Approved Claimant within thirty (30) days of the referee's decision

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Litigation Plan, pages 79-80 at para 32, Exhibit "8" to the A ffidavit of David Rosenfeld, sworn August 4, 2009, Plaintiffs' Motion Record for Certification, Tab 68.

152. The proposed plan and Individual Damages Assessment Process offers an efficient, workable, fair, manageable, timely and comprehensive alternative to litigation, operating as a fair and consistent mechanism for the calculation of damages awards.

153. The Plaintiffs submit that the proposed plan offers more than sufficient level of detail for this stage of the proceedings, a plan which can be modified, altered or revised by this Honourable Court as various litigation exigencies arise both prior to and following a trial of the common issues.

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P ART IV .~ ORDER REQUESTED

154. The Plaintiffs request that the motion for certification be granted, that the common issues be defined as set out above, that Seth and Slark be appointed the representative plaintiffs and that costs of the motion be fixed by the court, payable to the Plaintiffs by the Crown, forthwith.

ALL OF WHICH IS RESPECTFULLY SUBMITTED this 25th day of January, 2010.

Counsel for the Plaintiffs

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SCHEDULE" A" LIST OF AUTHORITIES

1. Hollick v" Toronto (2001),205 D.L.R. (4th) 19 rs.c.c.;

2. Hunt v. T & N plc, [1990] 2 S.c.R. 959

3. Landsbridge Auto Corp. v. Midas Canada Inc., [2009] OJ. No. 1269 (S.C.1)

4. Reynolds v. Kingston (City) Police Services Board, [2007) OJ. No. 900 (C.A.)

5" Reynolds v" Kingston (City) Police Services Board (2007), 84 O.R. (3d) 738 (C.A.)

6. Myers et of. v. Peel County Board of Education et al., [1981] 2 S.c.R. 21

7. Rumley v. British Columbia (2002), 205 D.L.R. (4th) 39 (S.C.c.)

8. Eliopolous v. Ontario (Minister of Health & Long Term Care), [2006] 0.1. No. 4400 (C.A.)

9. Drady v. Canada (Minister of Health), [2008) CA

10. Attis v Canada (Minister of Health), [2008J 0.1. No. 3766 (CA.)

11. Syl Apps Secure Treatment Centre v, B.D. [2007] S.CJ. No" 38 (S.CC)

12. Kamloops (City) v. Nielson, [1984] 2 S.C.R. 2 (S.C.C.)

13. Just v. British Columbia, [1989] 2 s.c.n. 1228 (S.C.C.)

14. Frame v Smith, [1987] 2 S.CR. 99

15. M(K.) v. M(H), (1992J 3 S.C.R. 6

16. K.L.B. v" British Columbia, 2003 sec 51 (CanLIl)

17. E.D. G. v. Hammer, 1998 CanLIl 15064 (RC.S.C.), aff'd (2001) 86 B.C.L.R. (3d) 191 (C.A.), aff'd [2003] 2 S.c.R. 459

18. Lafrance Estate v. Canada (Attorney General), [2003] OJ. No. 1046 (C.A.)

19. Peter v. Medtronic Inc.,[2007] OJ. No. 4828 (S.C.J.)

20. Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.c.J. No. 534, (S.C.c.)

21. Lambert v Guidant Corp., [2009] OJ. No. 1910 (S.C.1.)

22. Lelirancois v. Guidant Corp., [2008] OJ. No. 1397 (S.c.1.)

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23. Cloud v. Canada (Attorney General) (2004),247 D.LR. (4th) 667 (C.A)

24. Campbell v Flexwatt Corp. (1997),44 B.CLR. (3d) 343 (C.A.)

25. Carom v. Bre-X Minerals Ltd. (2000),51 O.R. (3d) 236 (CA.)

26. Tiboni v. Merck Frosst Canada ua., [2008] OJ. No. 2996 (S.CJ.)

27. Anderson v. St. Jude, [2003] 0.1. No. 3556, (S.C.1.)

28. Sauer v. Canada (Attorney General), [2008] O.J. No. 3419 (S .CJ.)

29. Anderson et al v. Wilson et al (1999),44 O.R. (3d) 673 (C.A.)

30. Wheadon v. Bayer Inc., [2004] NJ. No. 147, (S.C.T.D.)

31. Wilson v Servier Canada Inc. (2000),50 O.R. (3d) 219 (S.C.), leave to appeal denied, (2000),52 O. R. (3d) 20 (Div. Ct)

32. The Honourable Justice W.K. Winkler (as he then was), "Managing the Class Action Lawsuit: The Judicial Perspective", Canadian Institute Conference on Class Actions, (October 4, 1996)

33. Pearson v. Inca, [2005] OJ. No. 4918 (C.A.)

34. Baxter v. Canada, [2005] 0.1. No. 2165 (S.C.J.)

35. Bendall v. McGhan Medical Corp. (1993), 14 O.R. (3d) 734 (Gen.Div.)

36. 1176560 Ontario Limited et al v. The Great Atlantic and Pacific Company ofCanada Limited (2002) O.R. (3d) 535

37. Nantais v. Telectronics Proprietary (Canada) Ltd. (1995),25 O.R. (3d) 331 (Gen.Div.)

38. Endean v. Canadian Red Cross Society (1997), 148 D.LR. (4th) 158 (B.CS.C)

39. Caponi v Canada Life Assurance Co., [2009] 0.1. No. 114 (S.CJ.)

40. Zabawskyj v. Zabawskyj, [2008] 0.1. No. 1650 (S.c.J.)

41. Gronnerud (Litigation Guardians of) v. Gronnerud Estate, [2002] 2 S.C.R. 417 (S.C.c.)

42. Shemesh v. Goldlist, [2008] 0.1. No. 1629 (S.C.J.)

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SCHEDULE "B" RELEVANT STATUTES

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, as amended, Rule 21

RULE 21 DETERMINATION OF AN ISSUE BEFORE TRIAL WHERE AVAILABLE

To Any Party on a Question of Law

21.01 (1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly. R.R.O. 1990, Reg. 194, r. 21.01 (1).

(2) No evidence is admissible on a motion,

(a) under clause (1) (a), except with leave ofajudge or on consent of the parties; (b)underclause(1)(b).RR.0. 1990, Reg. 194, r. 21.01 (2).

To Defendant

(3) A defendant may move before ajudge to have an action stayed or dismissed on the ground that,

Jurisdiction

(a) the court has no jurisdiction over the subject matter of the action; Capacity

(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have the legal capacity to be sued;

Another Proceeding Pending

(c) another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter; or

Action Frivolous, Vexatious or Abuse of Process

(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court, and the judge may make an order or grant judgment accordingly. RRO. 1990, Reg. 194, r. 21.01 (3).

MOTION TO BE MADE PROMPTL Y

21.02 A motion under rule 21.01 shall be made promptly and a failure to do so may be taken into account by the court in awarding costs. R R. O. 1 990, Reg. 194, r. 21.02.

FACTUMS REQUIRED

21.03 (1) On a motion under rule 21.01, each party shall serve on every other party to the motion a factum consisting of a concise argument stating the facts and law relied on by the party. O. Reg. 14/04, s. 15.

(2) The moving party's factum shall be served at least four days before the hearing. O. Reg. 14/04, s. 15.

Note: On January 1,2010, subrule (2) is revoked and the following substituted:

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(2) The moving party's factum shall be served and filed with proof of service in the court office where the motion is to be heard at least seven days before the hearing. O. Reg. 394/09, s.5.

See: O. Reg. 394/09, ss. 5,33 (1).

(3) The responding party's factum shall be served at least two days before the hearing. O. Reg, 14104, s. 15.

Note: On January 1,2010, subrule (3) is revoked and the following substituted:

(3) The responding party's factum sha!l be served and filed with proof of service in the court office where the motion is to be heard at least four days before the hearing. 0, Reg. 394/09, s. 5,

See: O. Reg. 394109, ss. 5, 33 (1).

(4) Each party's factum shall be filed, with proof of service, in the court office where the motion is to be heard, at least two days before the hearing. O. Reg. 14104, s. 15.

Note: On January 1,2010, subrule (4) is revoked. See: O. Reg. 394109, ss. 5, 33 (1).

Family Law Act, R.S.O. 1990, c. F.3, section 61

Right of dependants to sue in tort

61. (1) If a person is injured or killed by the fault or neglect of another under circumstances where the person is entitled to recover damages, or would have been entitled if not killed, the spouse, as defined in Part III (Support Obligations), children, grandchildren, parents, grandparents, brothers and sisters of the person are entitled to recover their pecuniary loss resulting from the injury or death from the person from whom the person injured or killed is entitled to recover or would have been entitled if not killed, and to maintain an action for the purpose in a court of competent jurisdiction. R.S.O. 1990, c. FJ, s. 61 (1); 1999, c. 6, s. 25 (25); 2005, c. 5, s. 27 (28).

Damages in case of injury

(2) The damages recoverable in a claim under subsection (1) may include,

(a) actual expenses reasonably incurred for the benefit of the person injured or killed; (b) actual funeral expenses reasonably incurred;

(c) a reasonable allowance for travel expenses actually incurred in visiting the person during his or her treatment or recovery;

(d) where, as a result of the injury, the claimant provides nursing, housekeeping or other services for the person, a reasonable allowance for loss of income or the value of the services; and

(e) an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person ifthe injury or death had not occurred. R.S.O. 1990, c. F.3, s. 61 (2).

Contributory negligence

(3) In an action under subsection (1), the right to damages is subject to any apportionment of damages due to contributory fault or neglect of the person who was injured or killed. R.S.O. 1990, c. F.3, s. 61 (3).

(4) Repealed: 2002, c. 24, Sched. B, s. 25.

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Class Proceedings Act, 1992, section 5(1)(b)

Certification

5. (1) The court shall certify a class proceeding on a motion under section 2,3 or 4 if, ...

. . . (b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant; ...

Class Proceedings Act, 1992, sections 23 and 24

Statistical evidence

23. (1) For the purposes of determining issues relating to the amount or distribution of a monetary award under this Act, the court may admit as evidence statistical information that would not otherwise be admissible as evidence, including information derived from sampling, if the information was compiled in accordance with principles that are generally accepted by experts in the field of statistics. 1992, c. 6, s. 23 (1).

Idem

(2) A record of statistical information purporting to be prepared or published under the authority of the Parliament of Canada or the legislature of any province or territory of Canada may be admitted as evidence without proof of its authenticity. 1992, c. 6, s. 23 (2).

Notice

(3) Statistical information shall not be admitted as evidence under this section unless the party seeking to introduce the information has,

(a) given reasonable notice of it to the party against whom it is to be used, together with a copy of the information;

(b) complied with subsections (4) and (5); and

(c) complied with any requirement to produce documents under subsection (7). 1992, c. 6, s. 23 (3).

Contents of notice

(4) Notice under this section shall specify the source of any statistical information sought to be introduced that,

(a) was prepared or published under the authority ofthe Parliament of Canada or the legislature of any province or territory of Canada;

(b) was derived from market quotations, tabulations, lists, directories or other compilations generally used and relied on by members of the public; or

(c) was derived from reference material generally used and relied on by members of an occupational group. 1992, c. 6, s. 23 (4).

Idem

(5) Except with respect to information referred to in subsection (4), notice under this section shall,

(a) specify the name and qualifications of each person who supervised the preparation of statistical information sought to be introduced; and

(b) describe any documents prepared or used in the course of preparing the statistical information sought to be introduced. 1992, c. 6, s. 23 (5).

Cross-examination

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(6) A party against whom statistical information is sought to be introduced under this section may require, for the purposes of cross-examination, the attendance of any person who supervised the preparation of the information. 1992, c. 6, s. 23 (6).

Production of documents

(7) Except with respect to information referred to in subsection (4), a party agamst whom statistical information is sought to be introduced under this section may require the party seeking to introduce it to produce for inspection any document that was prepared or used in the course of preparing the information, unless the document discloses the identity of persons responding to a survey who have not consented in writing to the disclosure. 1992, c. 6, s. 23 (7).

Aggregate assessment of monetary relief

24. (1) The court may determine the aggregate or a part of a defendant's liability to class members and give judgment accordingly where,

(a) monetary relief is claimed on behalf of some or all class members;

(b) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined in order to establish the amount of the defendant's monetary liability; and

(c) the aggregate or a part of the defendant's liability to some or all class members can reasonably be determined without proof by individual class members. 1992, c. 6, s. 24 (1). Average or proportional application

(2) The court may order that all or a part of an award under subsection (1) be applied so that some or all individual class members share in the award on an average or proportional basis. 1992, c. 6, s. 24 (2).

Idem

(3) In deciding whether to make an order under subsection (2), the court shall consider whether it would be impractical or inefficient to identify the class members entitled to share in the award or to determine the exact shares that should be allocated to individual class members. 1992, c. 6, s. 24 (3).

Court to determine whether individual claims need to be made

(4) When the court orders that all or a part of an award under subsection (1) be divided among individual class members, the court shall determine whether individual claims need to be made to give effect to the order. 1992, c. 6, s. 24 (4).

Procedures for determining claims

(5) Where the court determines under subsection (4) that individual claims need to be made, the court shall specify procedures for determining the claims. 1992, c. 6, s. 24 (5).

Idem

(6) In specifying procedures under subsection (5), the court shall minimize the burden on class members and, for the purpose, the court. may authorize,

(a) the use of standardized proof of claim forms;

(b) the receipt of affidavit or other documentary evidence; and

(c) the auditing of claims on a sampling or other basis. 1992, c. 6, s. 24 (6). Time limits for making claims

(7) When specifying procedures under subsection (5), the court shall set a reasonable time within which individual class members may make claims under this section. 1992, c. 6, s. 24

(7).

Idem

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(8) A class member who fails to make a claim within the time set under subsection (7) may not later make a claim under this section except with leave of the court. 1992, c. 6, s. 24 (8) Extension of time

(9) The court may give leave under subsection (8) if it is satisfied that, (a) there are apparent grounds for relief;

(b) the delay was not caused by any fault of the person seeking the relief; and

(c) the defendant would not suffer substantial prejudice if leave were given. 1992, c. 6, s. 24 (9).

Court may amend subs. (1) judgment

(10) The court may amend a judgment given under subsection (1) to give effect to a claim made with leave under subsection (8) if the court considers it appropriate to do so. 1992,. c. 6, s. 24 (10).

Developmental Services Act, R.S.O. 1990, c. D.Il

Definitions

1. In this Act,

"administrator" means the person who is responsible for the operation and management of a faci I i ty; (" administrateur")

"attending physician" means the physician to whom responsibility for the observation, care and treatment of a resident has been assigned; ("medecin traitant")

"developmental disability" means a condition of mental impairment, present or occurring during a person's formative years, that is associated with limitations in adaptive behaviour; ("deficience intellectuelle")

"Director" means a person appointed as such, for all or any of the purposes of this Act; ("directeur")

"facility" means any place designated by the regulations in which assistance and services or either of them are provided for persons with a developmental disability; ("etablissement") "Minister" means the Minister of Community and Social Services; ("ministre")

"Ministry" means the Ministry of Community and Social Services; ("ministere") "physician" means a legally qualified medical practitioner; ("medecin")

"regulations" means the regulations made under this Act; ("reglements")

"resident" means a person with a developmental disability who resides in a facility. ("resident") R.S. O. 1990, c. D.l1 ,s. 1; 2001, c. 13, s. 2 (2-5).

Facilities established

2. (1) The Minister may establish, operate and maintain one or more facilities and may furnish such services and assistance as he or she considers necessary upon such terms and conditions as the Minister sees fit. R.S .0. 1990, c. 0.11, s. 2 (1).

Purchase of assistance and services

(2) The Minister may by written agreement or otherwise purchase from any person, services and assistance for or on behalf of persons with a developmental disability or believed to have a developmental disability and may direct payment of expenditures as are necessary for these purposes. R.S.O. 1990, c. D.II, s. 2 (2); 2001, c. 13, s. 2 (6).

Administration vested in Director

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3. (1) Except where a board has been appointed under subsection (2), the administration of every facility established, or operated by the Minister, is vested in the Director. R.S.O. 1990, c. D.ll, s. 3 (1).

Board of governors appointed

(2) The Lieutenant Governor in Council may appoint a board of governors to maintain and operate any facility operated and maintained under subsection 2 (1), and every such board is a body corporate. R.S.O. 1990, c. D.l1, s. 3 (2).

Corporations Act not to apply

(3) The Corporations Act does not apply to a board appointed under subsection (2). R.S.O. 1990, c. D.ll, s. 3 (3).

Administrator to superintend

(4) Subject to subsection (1), the administrator shall superintend the operation and management of all the affairs of the facility for which he or she is appointed and shall supervise all employees and all the residents therein. R.S.O. 1990, c. D.II, s. 3 (4). Minister, Director or administrator may appoint persons

(5) Where this Act or the regulations require or authorize the Minister, Director or administrator to do any act, such act may be done by any person whom the Minister, Director or administrator, as the case may be, appoints. R.S.O. 1990, c. D.II, s. 3 (5).

Patients deemed discharged

4. (1) Every person with a developmental disability who on the I st day of April, 1974 resided in a psychiatric facility under the regulations to The Mental Health Act, being chapter 269 of the Revised Statutes of Ontario, 1970, shall, upon the designating of all or any part of the psychiatric facility as a facility WIder this Act, be deemed to have been discharged as a patient under The Mental Health Act and admitted as a resident pursuant to this Act. R.S.O. 1990, c.D.11, s. 4 (1); 2001, c. 13, s. 2 (7).

Certificate of incompetence deemed issued and received

(2) Where the Public Trustee was committee of the estate of a person who is deemed to have been discharged under subsection (1), a certificate of incompetence shall be deemed to have been issued under subsection 10 (3) and received by the Public Trustee. RS.O. 1990, c.D.lI, s. 4 (2).

Designated facilities vest in Director

5. Any premises or part or parts thereof which were designated as a psychiatric facility under the regulations to the Mental Health Act, and which were operated by the Minister of Health and Long-Term Care shall, upon being designated as a facility under this Act, be operated and maintained by the Minister and the administration thereof shall, subject to subsection 3 (2), vest in the Director. R.S.O. 1990, c. D.11, s. 5; 2006, c. 19, Sched. E, s. 1.

Corporate status continued

6. Where a facility was incorporated under another Act and is designated under this Act, the designation shall not be deemed to affect the continuation ofthe facility's status as a corporation. R.S.O. 1990, c. 0.11, s. 6.

Persons may apply for admission to facilities

7. A person may apply for admission to a facility or for any item of assistance or service which the Minister may make available to persons with a developmental disability if the person,

(a) believes he or she is a person with a developmental disability; or

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(b) wishes to apply on behalf of a person whom he or she believes is a person with a developmental disability. 2001, c. 13, s. 2 (8).

Protection from personal liability

8. (1) No action, prosecution or other proceeding for damages for anything done or omitted to be done in compliance or intended compliance with this Act or the regulations shall be commenced against the Director, a Board appointed under subsection 3 (2) or any officer or employee of a facility for any act done in good faith in the execution or intended execution of a duty or for any alleged neglect or default in the execution in good faith of a duty. R.S.O. 1990, c.D.II, s. 8 (1).

Crown not relieved of liability

(2) Subsection (1) does not, by reason of subsections 5 (2) and (4) of the Proceedings Against the Crown Act, relieve the Crown of liability in respect of a tort committed by an agent or servant of the Crown to which it would otherwise be subject and the Crown is liable under that Act for any such tort in a like manner as if subsection (1) had not been enacted. R.S.O. 1990, c.D.II, s. 8 (2).

Protection from tort liability re resident

9. No action lies against the Director or any officer or employee of a facility for any tort of any resident. R.S.O. 1990, c. D.ll, s. 9.

10.-33. Repealed: 1992, c. 32, s. 7 (1).

Minister may designate officers

34. (1) The Minister may appoint officers of the Ministry or other persons who shall advise and assist the administrator in all matters pertaining to persons with a developmental disability and who shall have such other duties as are assigned to them by this Act or the regulations. R.S.O. 1990, c. D.II, s. 34 (1); 2001, c. 13, s. 2 (9).

Powers

(2) Any such officer or person may at any time, and shall be permitted so to do by the authorities thereat, visit and inspect any facility and, in so doing, may interview residents, examine books, records and other documents relating to residents, examine the condition of the facility and its equipment, inquire into the adequacy of its staff, the range of services provided and any other matter considered. relevant to the care of residents by such officer or person. R.S.O. 1990, c. D.11, s. 34 (2).

Inspection

(3) The books of account and any other records of every facility or class of facility shall be open at all reasonable times for inspection by an officer or person appointed under subsection (1). R.S.O. 1990, c. D.ll, s. 34 (3).

Provincial aid

35. The Minister may direct payment of provincial aid to or for the benefit of persons with a developmental disability, or believed to have a developmental disability, or to or for any facility or class of facility in which a person with a developmental disability resides, in such amounts and under such conditions as are prescribed by the regulations. 2001, c. 13, s. 2 (10). Agreements

35.1 (1) A regional municipality may enter into an agreement with a corporation described in subsection (2) that operates or intends to operate a facility that is or will be governed by this Act, with respect to the construction, operation or maintenance of the facility. 2002, c. 17, Sched. F, Table.

Corporations

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(2) Subsection (I) applies to a corporation without share capital having objects of a charitable nature,

(a) to which Part III of the Corporations Act applies; or

(b) that is incorporated under a general or special Act of the Parliament of Canada. 2002, c. 17, Sched. F, Table.

Regulations

36. The Lieutenant Governor in Council may make regulations,

(a) designating facilities or classes of facilities to which this Act and the regulations apply and limiting, restricting or exempting any such facility or class of facility from the application of any part of the regulations;

(b) respecting the construction, renovation, alteration and maintenance of any facility or class of facility;

(c) respecting the management, conduct, operation, use and control of any facility or class of facility;

(d) prescribing the accommodation, facilities, equipment and services in any facility or class of facility;

(e) providing for the officers and staff and prescribing their duties and qualifications in any facility or class of facility;

(f) prescribing the procedure for selecting and evaluating the site of any facility or class of facility and for the development and preparation of plans for the site and buildings and for the information to be contained in such plans;

(g) providing for the approval of facilities within a class and prescribing the terms and conditions upon which any such facility may be approved for persons with a developmental disability;

(h) for the purposes of this Act and the regulations, defining "assistance" and "services" and prescribing classes of services and classes of assistance and the items, services and payments to be included in any such definition or in any such class of services or class of assistance and prescribing the terms and conditions upon which such services or assistance or any class thereof may be provided;

(i) prescribing the classes of grants or allowances by way of provincial aid to or for the benefit of persons with a developmental disability or believed to have a developmental disability, or to or for any facility or class of facility and the methods of determining the amounts of such grants or allowances, the terms and conditions for the payment thereof and providing for the manner, times and methods of payment and the suspension and withholding of grants and allowances and for the making of deductions from grants and allowances;

U) prescribing the persons or classes of persons who may be eligible for services and assistance or any class thereof and prescribing the terms and conditions of eligibility for services and assistance or any classes thereof requiring information to be submitted and providing for the investigation and determination of eligibility for such services or assistance or any classes thereof;

(k) prescribing the charges that shall be made for the provision of services and assistance or any class thereof to a person with a developmental disability or believed to have a developmental disability and limiting, restricting or exempting the persons or any class of persons to whom such charges shall be made;

(I) prescribing the persons and authorities or classes of persons or authorities that are liable for or exempted from the cost of services and assistance or any class of services or assistance to

~ 61 -

persons with a developmental disability or believed to have a developmental disability and prescribing rules for determining the amounts to be contributed towards the cost of such services or assistance or class thereof by the person or authority or class of person or authority who are liable therefor;

(m) providing for the recovery of any sum as a debt due to the Crown or to the board of any facility in any court of competent jurisdiction from any person or his or her estate or authority liable therefor, of the cost or any part of the cost of any services or assistance or any class thereof provided to or for a person with a developmental disability or believed to have a developmental disability;

(n) providing for an agreement to be entered into with or on behalf of any resident or class of resident in a facility or in any class of facility, for the administrator in charge of the facility or class of facility, to receive, hold and administer real and personal property of the resident or class of resident in trust for certain purposes, and providing for the terms and conditions of trust upon which the administrator may receive and hold such property;

(0) providing for the establishment of in-service training programs for members of the staff of any facility or class of facility;

(p) providing for any parent or guardian of a child with a developmental disability or believed to have a developmental disability to enter into agreement with the Minister or any child welfare authority appointed by the Minister, for the purposes of providing services or assistance or any class thereof, and providing for the terms and conditions in any such agreement upon which such services or assistance or any class thereof may be provided;

(q) governing applications for payment of grants or allowances under this Act;

(r) prescribing the records and accounts to be kept in respect of facilities or class of facilities, the claims and returns to be made to the Minister and the method, time and manner in which such claims and returns are to be made;

(s) prescribing additional duties of officers or persons appointed by the Minister under section 34;

(t) respecting the examination of persons and the admission, transfer, discharge and placement of residents;

(u) prescribing rules governing the operation, management functions and powers of boards appointed by the Lieutenant Governor in Council under subsection 3 (2);

(v) prescribing forms and providing for their use;

(w) providing, with respect to corporations that were approved corporations and homes that were approved homes under the Homes for Retarded Persons Act before its repeal by the Homes for Retarded Persons Repeal Act, 2001, for such transitional matters as the Lieutenant Governor in Council considers advisable in relation to the designation of such homes as facilities under this Act. R.S.O. 1990, c. 0.11, s. 36; 2001, c. 13, s. 201-17).

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Huronia Regional Centre - Certification Motion Materials - Factum of The Moving Plaintiffs - January 25, 2010

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