Law Times

Law Times • February 1, 2016 Page 5 www.lawtimesnews.com Crown ward class action passes first test to certification BY NEIL ETIENNE Law Times A major proposed class action against the Province of Ontario on behalf of as many as 40,000 Crown wards has passed the first major hurdle. On Jan. 22, Justice John Frege- au of the Ontario Superior Court of Justice denied a Crown re- quest for leave to appeal Superior Court of Justice Helen Pierce's May 2015 decision. The decision found that s. 5(1)(a) of the Class Proceedings Act, 1992 was met in the matter of Papassay et al v. Ontario. "The class action's about change going forward to ensure the system is properly reformed and it's about recognition of what's happened going back- wards as well," says Jonathan Ptak, one of the lead counsel for the wards from Koskie Minsky LLP. Zaitzeff Law PC and Wat- kins Law Professional Corpora- tion are also representing the plaintiff class. Asserting to the court the claim did not disclose a ten- able cause of action, the Crown, through senior counsel John Kel- ly, appealed the motion judge's decision on duty of care, which held that "it is not plain and ob- vious that the Crown's obligation to its wards does not extend to protecting their rights." It also appealed Pierce's deci- sion of breach of fiduciary duty that found it is conceivable the plaintiffs will be able to prove that duty if the matter is ulti- mately approved for class action certification. Ptak says the class action is an historic one, branching back to the mid-1960s "and as far as we're aware is still happening today." He says one of the representa- tive plaintiffs, Holly Papassay, 43, of Thunder Bay, is one of as many as 40,000 Crown wards the claim states was physically and/or sex- ually abused, neglected, and re- victimized from Jan. 1, 1966, the date when he argues the province accepted legal responsibility and guardianship of Crown wards. Ptak says both today and in the past children have become Crown wards because they have suffered some form of harm by their parents or guardians and, as such, he argues the province had an obligation to allow them access to and inform them of the Criminal Injuries Compensa- tion Fund. He says the fund was estab- lished in the 1970s to assist vic- tims of crime, "which would, almost by definition, entitle chil- dren coming into the system to make a claim" to compensation awards, such as funding for coun- selling and other types of assis- tance to help the healing process. "Once these kids come into the system, the Crown is in a po- sition to preserve the evidence for those claims and potentially even make those claims on the chil- drens' behalf," Ptak says. "Once they're in the system, many of them are subject to even fur- ther crimes, either in their foster homes or in their lives, which the Crown becomes aware of as their guardian, so the allegation is the Crown doesn't take steps to pre- serve the evidence, to advance those cases, or to even advise the children of their rights." Ptak says his clients were un- aware of the compensation fund for decades and allege evidence of their abuses was not preserved. During its request for leave to appeal, the Crown argued that provisions under the Child and Family Services Act make it clear Crown wards are not under the direct care of the Crown but rath- er it is the Children's Aid Societies that holds the responsibility. "The Crown has the rights and responsibilities of a parent for the purpose of the child's care, custody and control, but unlike a parent, the Crown's powers, du- ties and obligations have been expressly delegated by the legisla- ture to the CAS that is caring for the child," the Crown stated in its factum of the defendant. Crown counsel declined to comment and Ministry of the Attorney General spokesman Brendan Crawley said as the matter is subject to litigation it would be inappropriate to com- ment as well. Civil lawyer Margaret Wad- dell of Paliare Roland Rosen- berg Rothstein LLP says that, in light of a number of abuse cases being certified across the coun- try, starting with the residential school matters, she expects the ward case will eventually also be certified. "At trial, the question will be to what extent the Crown had a duty to do any of the various things that the plaintiffs say it failed to do, including bringing civil claims or claims for crimi- nal compensation, or preserv- ing evidence and advising the wards of their rights of action as they reached the age of majority," Waddell says. "These will be very impor- tant issues, if they are ultimately determined at a trial, given that whatever duties are found to ex- ist with the Crown also apply to any other parent of an abused child — since the Crown has been found to be analogous to a parent for the purposes of find- ing that a fiduciary duty and duty of care exist at law." Family lawyer Donald Baker of Baker & Baker PC says it will be an interesting case to watch and adds that, while it will be emotionally charged and rely- ing on historical evidence and memory recall, the plaintiff class might have a tough hill to climb. "The burden of proof is on the plaintiff and they have to prove negligence," he says. "Depending on how they [plaintiff counsel] ad- dress this, it might be a tough sell." Waddell adds that, based on recent rulings in TL v. Director of Child Welfare [Alberta] and the results of the Ontario resi- dential and day school matters, she expects the case should settle. "The Alberta case settled on the basis that the class were all provided with an additional year to seek compensation from the Victim of Crimes fund," she says. "Similarly, the Ontario govern- ment has settled the residential and day school cases where the abuse occurred while the chil- dren were under the care of the Crown. Here, there are allega- tions of abuse both before be- coming a Crown ward and while a Crown ward. "Since the Crown knew of the pre-existing abuse prior to the children becoming wards of the state — it was the reason for the wardship in many cases — it is certainly a strong argument to say that the Crown, as the guard- ian of the children in all respects, therefore, had an obligation to enforce, protect, and/or at least preserve the children's legal rights arising from the abuse they suffered," says Waddell. Ptak says now that the first prong of the certification test has been passed, the combined counsel for the plaintiffs will be approaching the court to con- firm timetables for the remain- der of the certification process. "We're hopeful that will be heard as early as possible this year," he says. LT NEWS Jonathan Ptak says a class action on behalf of as many as 40,000 Crown wards in Ontario will help reform the system. The burden of proof is on the plaintiff and they have to prove negligence. 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