Imposed Limitation Thwarts Sex Abuse Class Action Certification
Last year the BC Supreme Court refused to certify a class action for victims of sexual abuse at the hands of a corrections guard employed by the Province of BC. While the Plaintiff and the Province of BC wished to have the matter certified Mr. Justice Grauer was concerned that inadequate notice provisions and a short opt-out provision would result in some victims losing their right to sue.
The parties attempted to address these concerns by creating more meaningful notice provisions and a more generous period for plaintiffs to advance their claims. They re-applied for certification. In reasons for judgement released this week (Lakes v. MacDougall) Mr. Justice Grauer once again rejected the proposed class action finding the limitation period created by certification would be too prejudicial for victims of historic sexual abuse. In dismissing the application Mr. Justice Grauer provided the following reasons:
[13] Here is the situation. For those of MacDougall’s victims who have already come forward and consulted counsel, there is no problem. If they have already commenced litigation, they are deemed to have opted out, and otherwise may do so if they wish within the 90-day period provided. They already have the advantage of access to legal counsel and will have no difficulty in exercising their options. Consequently, it does not surprise me that the clients of Mr. Poyner and those of Mr. Simcoe support the proposed settlement.
[14] But what of the rest of the proposed class, who remain unidentified? The evidence before me clearly establishes the roadblocks that inhibit these victims from breaking silence and coming forward to disclose the abuse they suffered. They are accordingly particularly vulnerable to losing their claims through the effluxion of time. This is exacerbated by notice provisions that, while likely to ensure maximum dissemination to those still in the prison population, offer little hope of reaching those in more isolated circumstances.
[15] It is no answer, in my view, to say that these victims may avoid the risk of losing their rights by simply filing a single piece of paper to opt out within the 90-day period mandated for doing so. That is a very short time in the context we are discussing. Once it has passed, they may no longer opt out; they are left with 21 months within which to file a claim, failing which they are forever barred.
[16] It is my respectful opinion that this additional time remains insufficient to counterbalance the prejudice to this particular group arising from the imposition of a limitation period where none previously existed. Those members of the class who remain unidentified still face the prospect of losing more than they and the rest stand to gain should the settlement be approved and the action certified. The amended terms represent an improvement, but not enough. It is not open to me to craft acceptable settlement terms, or to impose them.
[17] In the circumstances, I conclude that the parties have failed to establish that a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issue raised in this matter. The proposed procedure does, in my view, offer certain procedural advantages to the proposed class, as discussed above. These are not, however, sufficient to offset the continuing risk of severe prejudice to this vulnerable population to which the terms of the settlement agreement give rise.