Tag: Lakes v. MacDougall

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.

Sex Abuse Class Action Not Certified Due To Limitation Period Concerns for Victims

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, highlighting the important benefits of BC’s open ended limitation period for victims of sexual abuse.
In this week’s case (Lakes v. MacDougall) the Defendant worked as a correctional guard in BC’s prison system for over 20 years.  During this time he sexually abused a number of convicts.  He was criminally convicted for these deeds.  He was also successfully sued by some of his victims.
The Plaintiff, an alleged victim of this abuse, sued the Defendant and the Province of BC alleging the Province was vicariously liable for the abuse.  He proposed to make his lawsuit a class action on behalf of all of the Defendant’s victims.  The Province of BC agreed that a class action was appropraite.  The Plaintiff and the Province asked the Court to certify a class action and further to approve a settlement process which would permit the victims to seek compensation by way of private arbitration.
One of the Defendant’s alleged victims opposed class action certification.  This individual argued that the proposed settlement method would impose a de facto limitation period for the victims where one otherwise would not exist.  Mr. Justice Grauer agreed and refused to certify the action unless this issue could be addressed.  In doing so the Court provided the following helpful reasons:
[14] The objections can be succinctly stated.  By definition, members of the proposed class are persons who have spent time in jail from a relatively young age, have developed drug and alcohol problems, have damaged senses of masculinity, and have maintained their silence for years.  Mr. Lakes has deposed that the sexual abuse he endured caused him a great deal of humiliation and embarrassment that prevented him from coming forward with the information until August 13, 2010, some 30 years after the events occurred.  Precisely because of such problems, the Limitation Act, R.S.B.C. 1979, c. 266, provides in s. 3(4)(l) that causes of action based on sexual assault are not governed by a limitation period and may be brought at any time.  Yet the certification of this action and approval of the settlement will deny the benefit of this provision to members of the class who have not yet come to a place where they are capable of disclosure.  Instead, their claims will become effectively barred by the expiry of the claims period.  This is particularly troublesome, it is suggested, because this population is not one known for reading newspapers, where notices of the settlement are to be published…

[22] As I see it, the question is whether the loss of that benefit in this particular case is appropriately balanced by the gains offered by certification and approval of the settlement.

[23] I have concluded that, in the circumstances before me, it is not, and accordingly this requirement has not been met.  The advantage to potential members of the class of the resolution of the single common issue, together with the efficiencies of the process, do not match the loss to this particularly vulnerable group that will arise from the imposition of a six-month claims period.  I do not say that such a balance cannot be achieved in relation to MacDougall’s victims.  I say only that it has not been achieved.  If the process were structured differently to allow for a significantly longer claims period and improved notification procedures, I might well take a different view.  I do not, of course, have the authority to alter the terms of the proposed settlement…

[24] In these circumstances, I exercise my discretion under s. 5(6) of the Class Proceeding Act, and direct that the plaintiff’s applications be adjourned to permit the parties to engage in further negotiations and amend their materials if they choose to do so.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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