Upheld: Plaintiffs Win Common Issues Trial After 24 Years Of Institutional Abuse

• Published date: 09 December 2021
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Professional Negligence
• Law Firm: Siskinds LLP
• Author: Aylin Manduric

In Cavanaugh et al. v. Grenville Christian College et al., 2021 ONCA 755, a unanimous Court of Appeal upheld a decision answering five common issues in the plaintiffs' favour. This was a resounding win for the class.

Class proceedings rarely go to trial. In addition to being a rare common issues trial decision, Cavanaugh offers a valuable look at the Court of Appeal's approach to evidence in a systemic negligence case with a decades-long class period.

Abuse at Grenville Christian College

The class members in Cavanaugh were students who had suffered physical and psychological abuse at Grenville Christian College, an Anglican boarding school. The class period began in 1973, when the school introduced a new operational program inspired by a religious organization called the Community of Jesus (COJ).

The school implemented strict disciplinary measures based on the practices of the COJ, including excessive use of corporal punishment; demeaning and dangerous work duties for students "on discipline"; public humiliation; repressive teachings about sex and sexual orientation; and tactics designed to terrorize students, such as bringing them close to furnace flames and telling them that they will go to hell.

Procedural History

Although it was not certified at first instance (2012 ONSC 2995), the Divisional Court (2014 ONSC 290) certified the proceeding against the school and two school officials, finding that the motion judge erred in his preferable procedure analysis. While the motion judge had found that the common issues would inevitably be re-litigated at the individual trials stage, the Divisional Court found that the common issues trial would necessarily involve matters affecting all class members: the school's history; its practices and policies; and the systemic breach of duty. The proceeding was certified.

After the five-week common issues trial (2020 ONSC 1133), Justice Leiper for the Superior Court found that the defendants had breached the fiduciary and tort law duties they owed to the class, and that punitive damages were appropriate.

In deciding in the plaintiffs' favour, Justice Leiper relied on the evidence from Dr. Rosemary Barnes, the plaintiffs' psychology expert, who gave evidence about the risks of keeping children in "total institutions", i.e., institutions where "children live apart from their families for extended periods of time and are completely reliant on institutional staff for care, guidance, protection, instruction and discipline."¹

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