Rumley v. British Columbia, 2001 SCC 69, [2001] 3 SCR 184

rumley v. british columbia, [2001] 3 S.C.R. 184, 2001 SCC 69

Her Majesty The Queen in Right of the Province

of British Columbia                                                                                          Appellant

v.

Leanne Rumley, John Pratt, Sharon Rumley, J.S. and M.M.                  Respondents

Indexed as:  Rumley v. British Columbia

Neutral citation:  2001 SCC 69.

File No.:  27721.

Hearing and judgment:  June 13, 2001.

Reasons delivered:  October 18, 2001.

Present:  McLachlin C.J. and Gonthier, Iacobucci, Major, Bastarache, Binnie and Arbour JJ.

on appeal from the court of appeal for british columbia

Practice -- Class actions -- Class certification -- Plaintiffs seeking to represent current and former students abused at residential school for deaf and blind operated by province -- Whether plaintiffs meet certification requirements set out in provincial class action legislation -- Class Proceedings Act, R.S.B.C. 1996, c. 50, s. 4.

From the early 1950s until 1992, British Columbia operated a residential school for deaf children.  Until 1979, the school also enrolled blind children.  Investigations by the provincial Ombudsman and later by a special counsel established that sexual, physical and emotional abuse of students by staff and peers took place at the school over many years.  The government responded to the special counsel’s report by acknowledging responsibility for abuse that occurred at the school and establishing an individual compensation program that awarded compensation in three tiers, with a minimum of $3,000 and a maximum of $60,000.  The respondents commenced a class action against the appellant in 1998 seeking compensatory and punitive damages.   Under s. 4 of the Class Proceedings Act, the court must certify a proceeding as a class proceeding if all of the following requirements are met:  (a) the pleadings disclose a cause of action; (b) there is an identifiable class of two or more persons; (c) the claims of the class members raise common issues, whether or not those common issues predominate over issues affecting only individual members; and (d) a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues.  The British Columbia Supreme Court denied certification.  The Court of Appeal allowed the respondents’ appeal and certified the claims relating to sexual abuse as common issues.

Held:  The appeal should be dismissed.

The respondents have satisfied the certification requirements set out in s. 4 of the Class Proceedings Act.  The issues in dispute are whether there are questions common to the class and whether a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues.  Both the commonality and preferability requirements are satisfied in this case.  With regard to commonality, all class members share an interest in the question of whether the appellant breached a duty of care.  The issues of duty and breach are thus common to the class.  That the standard of care may have varied over the relevant time period is not an obstacle to the suit’s proceeding as a class action but simply means that the court may find it necessary to provide a nuanced answer to the common question.  The structure of the special counsel’s report, which explicitly divides the years between 1982 and 1991 into three discrete subperiods, suggests that such an approach would not be infeasible.  Moreover, the Class Proceedings Act contemplates the possibility of subclasses, and the court may amend the certification order at any time.  The appropriateness and amount of punitive damages is also, in this case, a question amenable to resolution as a common issue.

The preferability inquiry is directed at two questions: first, whether the class proceeding would be a fair, efficient and manageable method of advancing the claim, and second, whether the class proceeding would be preferable in the sense of preferable to other procedures.  The first factor to be considered under s. 4(2) is “whether questions of fact or law common to the members of the class predominate over any questions affecting only individual members”.  It seems likely that there will be relevant differences between class members here; as the respondents have limited their claims to claims of  “systemic” negligence, however, the central issues in this suit will be the nature of the duty owed by the school to the class members and whether that duty was breached.  Those issues are amenable to resolution in a class proceeding.  While the issues of injury and causation will have to be litigated in individual proceedings following resolution of the common issue (assuming the common issue is decided in favour of the class, or at least in favour of some segment of the class), the individual issues will be a relatively minor aspect of this case.  There is no dispute that abuse occurred at the school.  The essential question is whether the school should have prevented the abuse or responded to it differently.

Cases Cited

Referred to:  Hollick v. Toronto (City), [2001] 3 S.C.R. 158, 2001 SCC 68; Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534, 2001 SCC 46; Anderson v. Wilson (1999), 44 O.R. (3d) 673; Chace v. Crane Canada Inc. (1996), 26 B.C.L.R. (3d) 339; Endean v. Canadian Red Cross Society (1997), 148 D.L.R. (4th) 158.

Statutes and Regulations Cited

Class Proceedings Act, R.S.B.C. 1996, c. 50, ss. 4, 6(1), 7, 8(3), 10(1).

Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5.

School Act, R.S.B.C. 1996, c. 412.

APPEAL from a judgment of the British Columbia Court of Appeal (1999), 72 B.C.L.R. (3d) 1 (sub nom. R. (L.) v. British Columbia), 180 D.L.R. (4th) 639, 48 C.C.L.T. (2d) 1, 38 C.P.C. (4th) 1, 131 B.C.A.C. 68, 214 W.A.C. 68, [1999] B.C.J. No. 2633 (QL), 1999 BCCA 689, reversing in part a decision of Kirkpatrick J. (1998), 65 B.C.L.R. (3d) 382, 25 C.P.C. (4th) 186, [1998] B.C.J. No. 2588 (QL), refusing to certify certain proceedings as a class action.  Appeal dismissed.

James M. Sullivan, D. Clifton Prowse and Suzanne M. Kennedy, for the appellant.

Patrick G. Guy and Anne Sheane, for the respondents.

The judgment of the Court was delivered by

1                                   The Chief Justice – Like Hollick v. Toronto (City), [2001] 3 S.C.R. 158, 2001 SCC 68, this case raises the question of whether the plaintiffs below (respondents here) meet the certification requirements set out in provincial class action legislation.  In this case the respondents seek to represent current and former students who were abused at the Jericho Hill School, a residential school for the deaf and blind operated by the province of British Columbia.  At the end of the hearing, the Court concluded that the respondents had satisfied the certification requirements set out in s. 4 of the British Columbia Class Proceedings Act, R.S.B.C. 1996, c. 50, and dismissed the appeal, reasons to follow.  These are those reasons.

I.                 Facts

2                                   From the early 1950s until 1992, Jericho Hill School (“JHS”) operated as a residential school for deaf children.  Until 1979, the school also enrolled blind children.  Whereas most schools in British Columbia are managed by district school boards, JHS was a “provincial school” under British Columbia’s governing legislation, currently the School Act, R.S.B.C. 1996, c. 412, and was operated and maintained by British Columbia’s Ministry of Education.  It is now clear that sexual and physical abuse of children took place at the school throughout its history.  The first thorough investigation of abuse at the school was conducted by the British Columbia Ombudsman in 1992.  His report, issued in 1993, concluded that sexual, physical and emotional abuse of students by staff and peers occurred over a period of many years.  In response to the Ombudsman’s report and to lawsuits initiated against the province after the report was issued, the Attorney General appointed Thomas Berger, Q.C., as special counsel.  Berger’s report was issued in March 1995.  The Berger report concluded that “sexual abuse was at times widespread at the residence at Jericho Hill School, and . . . it went on over a period of many years” (p. 14). 

3                                   The findings of the Berger report are disturbing, to say the least.  Berger interviewed 35 students who were at JHS in the 1950s, 1960s, 1970s, and 1980s.  He found that “[m]any of these persons allege[d] that they were sexually abused or witnessed sexual abuse by staff or other students” (p. 13).  Berger focussed principally on abuse that took place after 1980.  According to the Berger report, two male students complained separately about abuse at the school in the early 1980s.  The first complained that he had been sexually abused by a female child care counsellor and that students at the school were encouraged and even forced to have sex with one another; the second alleged that two male child care counsellors had abused him.  After the second complaint, a social worker with the Ministry of Human Resources conducted interviews with a number of boys resident at the school.  Some of the boys admitted having abused girls at the school, some as young as seven years old.  The boys also alleged that they had been abused by two male child care counsellors.  

4                                   According to the Berger report, there is compelling evidence that abuse was rampant throughout the 1980s.  Some of the abuse took place at the residence associated with the school, but there were also indications of abuse in a group home run by a psychologist hired by JHS in 1983.  In 1984 one student at the group home stabbed another to death.  At the subsequent trial, the judge expressed concern about the adequacy of supervision in the group home, stating that the accused “was receiving what I can only characterize as the most inappropriate form of care and guidance in that foster home”.  In 1986 one of the male students at JHS who had resided in the group home committed suicide after sexually abusing his niece at home.

5                                   The Berger report speaks separately about the period between 1987 and 1990.  In January 1987 the student who had brought the first complaint in the early 1980s attempted suicide after abusing his younger siblings.  After his suicide attempt, the student repeated his allegation of abuse at the hands of a female counsellor.  He also admitted that he and other boys had abused elementary-age girls at the school.  Around the same time, another male student was arrested for molesting a young boy.  He stated that he himself had been abused by a child care worker at JHS and stated that he had engaged in sexual activity with boys and girls at the residence.  He listed ten female students whom he had sexually abused and named three other boys who he said had abused female students.  After these new allegations, the Ministries of Education and Social Services conducted an investigation, interviewing some 35 students beginning in early 1987.  The students interviewed provided names of other children who they said had been forced to have sex or had forced others to have sex.  One member of the investigative team, in reviewing the findings, identified “a pervasive culture at the residence that required students to submit to a sexual rite of passage if they were to successfully cohabit with their peers”.

6                                   The Berger report did not go into detail about individual cases; its principal goal was to determine the prevalence of abuse at the school, not to determine whether any particular resident had been abused.  The report stated (at p. 14):

I make no findings here regarding individual cases.  I am instead confining myself to stating my finding, applying generally to the state of affairs at Jericho Hill School, that from the 1950s, extending over about a 35-year period, there was sexual abuse by some child care staff, sexual abuse by some older children against younger children, and that some of these younger children (once they became senior students) sexually abused new entrants.

The case histories can be shocking.  There is no need to go into them in detail.  But they do indicate that sexual abuse at the school may not entirely have come to an end even in 1987.  One former student states that she was assaulted by a female child care worker from 1981 to 1990.   Another former student states she was sexually assaulted many times, from 1980 to 1991.  It remains to be seen whether these particular allegations will be made out, but they do indicate that the possibility of incidents of sexual abuse even after 1987 cannot be dismissed.

In this report I do not go into detail about individual cases. . . .  I am not . . . engaged in determining the impact of abuse in any individual case, but rather setting out the whole picture.

7                                   The Berger report found that JHS’s response to allegations of abuse was often inadequate, noting, for example, that “[e]xcept in a few cases, Jericho Hill School failed to report the disclosures to the parents of the boys or the girls, failed to identify the student offenders and to remove them from the school, and failed to ensure that the students who had been abused received appropriate therapy” (p. 9).  The report found that “[a]lthough it had responsibility for the management of the school, the Ministry of Education had no policies and procedures laid down for running a residence for deaf children” (p. 15).  It also noted that in 1978, all students – boys and girls of all ages – were placed together in a single dormitory and observed that “[i]t is certainly arguable that these arrangements were not in keeping with reasonable standards of care at the time” (p. 16).

8                                   The Berger report also emphasized the exceptional vulnerability of the children at the school.  The report stated (at p. 7):

[T]he vulnerability of the children at Jericho Hill School was the product of their failure to acquire language early; this meant that they did not have values instilled in them in the same way as hearing children do; it often meant increased vulnerability to any staff at the school who may have been disposed to abuse the children; it meant that the institution was more susceptible to the development of a culture of abuse; and it meant that the children usually did not have the ability or the means to communicate with or complain effectively to parents, teachers, physicians, police or social workers about sexual abuse.

9                                   The recommendations of the Berger report were that the province accept responsibility for the abuse that occurred at JHS; that the province establish a scheme to compensate those who had suffered abuse at the school; and that the compensation scheme should award compensation, for those claims accepted, in three tiers, with a minimum of $3,000 and a maximum of $60,000.  

10                               The government responded to the Berger report by acknowledging responsibility for abuse that occurred at JHS.  In a ministerial statement made in June 1995, the Attorney General acknowledged the allegations of sexual abuse at the school, acknowledged that “[t]he province was responsible for the care and well-being of these people when they were children”, and stated that “[t]o the extent that the province failed them, [it] must see that they are now compensated”.  The province also established the Jericho Individual Compensation Program (JICP), which is structured according to the recommendations of the Berger report.  The program is open to students and former students who allege abuse as a result of attending or having attended the school, and provides for awards according to the three-tier system.  As of March 31, 1998, the JICP had heard 49 claims. 

11                               The respondents commenced this action in January 1998.  The suit seeks compensatory and punitive damages on behalf of a class consisting of:

– all current and former JHS students who have suffered abuse or who failed to receive a proper education while students of the school;

– all family members of current or former JHS students who suffered damage as a result of the abuse of a JHS student;

– all family members or others who were themselves abused by current or former JHS students as a result of the prior abuse of the JHS student.

The respondents asserted that the following issues are common to the class:

– whether the defendant breached the standard of care it owed to the plaintiffs between 1950 and 1992;

– whether the defendant made negligent, reckless and/or fraudulent misrepresentations regarding the school;

– whether the defendant’s conduct justified an award of punitive damages and, if so, what amount of punitive damages is appropriate.

(Initially the respondents also asserted that vicarious liability constituted a common issue, but the respondents abandoned their vicarious liability argument early in the proceedings.)

12                               The only issue on this appeal is whether the respondents have satisfied the class certification requirements set out in s. 4 of British Columbia’s Class Proceedings Act.

II.                Judgments

13                               In the Supreme Court of British Columbia, Kirkpatrick J. denied certification: (1998), 65 B.C.L.R. (3d) 382.  First addressing s. 4(1)(a), Kirkpatrick J. found that the statement of claim did not disclose a cause of action based on misrepresentation, emotional harm and mental suffering, breach of fiduciary duty owed to parents or other third parties, or educational malpractice.  She found, however, that the statement of claim did disclose causes of action based on the claims of abuse of students, the claims of  “secondary” abuse committed by students against other students or third parties, and breach of fiduciary duty owed to the students.  Kirkpatrick J. also found that respondents had stated an identifiable class, as required by s. 4(1)(b).

14                               Kirkpatrick J. rejected the contention, however, that there were issues common to the class as required by s. 4(1)(c).  She addressed each of the asserted common issues in turn.  As to the negligence issues, she reasoned that the standard of care owed by the defendant would not have been constant over the 42-year period identified in the statement of claim and, while this problem could be partially addressed by subdividing the 42-year period and determining the standard of care for each subdivision, “[s]uch an approach would not resolve the anticipated problems of individuals who spanned one or more periods, or whose own individual circumstances changed along with the standard of care during the times in question” (p. 402).  Further, variations in the standard of care would “not necessarily relate only to when the claim is alleged to have arisen, but will likely depend also on who advances the claim, who is alleged to have perpetrated the wrong, and, perhaps, the nature of the abuse alleged” (p. 403). 

15                               Kirkpatrick J. rejected the misrepresentation issues as common to the class for similar reasons, writing that these issues were “individualistic in the sense that each plaintiff must demonstrate that [he or she] relied upon the defendant’s alleged misrepresentation such that the representation had a real and substantial effect on the individual plaintiff’s decision to enrol and continue to enrol the student at the school” (p. 404). 

16                               Finally, Kirkpatrick J. rejected the punitive damages issue as common to the class, reasoning that assessing punitive damages would require an individualized showing on the part of each plaintiff and noting that “the conduct of the defendant in relation to individual plaintiffs may aggravate or mitigate the assessment of punitive damages, which would fail to be considered in the determination of entitlement to punitive damages as a common issue” (p. 406). Kirkpatrick J. noted that even if punitive damages were certified as a common issue, the amount of punitive damages could not be a common issue because traditionally “[p]unitive damages are . . . only awarded if compensatory damages are insufficient to deter or punish the defendant” (p. 406).  The amount of punitive damages, therefore, could not be assessed until individual proceedings were completed.

17                               Kirkpatrick J. determined that there were no common issues as required by s. 4(1)(c) and, as there were no common issues, a class action could not be “the preferable procedure for the fair and efficient resolution of the common issues”, as required by s. 4(1)(d).  She conceded, however, that the JICP is not an adequate alternative to judicial resolution of the dispute.  She noted that the JICP limits awards to $60,000, does not compensate family members, and does not provide compensation for loss of income, opportunity, or future care.  Further, the JICP prohibits applicants from being represented by counsel before the compensation panel.  In Kirkpatrick J.’s view, however, the absence of common issues meant that individual litigation was nonetheless preferable to a class proceeding.

18                               The Court of Appeal for British Columbia, per Mackenzie J.A., allowed the appeal, disagreeing with the chambers judge with respect to commonality and preferability: (1999), 72 B.C.L.R. (3d) 1.  In Mackenzie J.A.’s view, the chambers judge had erred in failing to recognize the “limited grounds” on which the respondents sought certification.  While he conceded that there were relevant differences amongst the class members, Mackenzie J.A. reasoned that the “duty of the school to reasonably protect its students from sexual abuse is clear and immutable throughout the period that the school was in operation” (p. 8).  He wrote (at pp. 8-9):

It is true that the claims of class members may span a period of 42 years and that standards of operation and management of the school may have changed several times over that lengthy period.  Nevertheless, . . . the duty of the school to reasonably protect its students from sexual abuse is clear and immutable throughout the period that the school was in operation. . . .

Claimants will not have to prove that the abuse was caused by a particular staff member or other student in the absence of a claim for vicarious liability.  In essence the claims will be based on systemic negligence, the failure to have in place management and operations procedures that would reasonably have prevented the abuse.

Mackenzie J.A. concluded that the standard-of-care issue – an aspect of both the negligence claim and the fiduciary duty claim – was common to all those who alleged that they had been sexually abused at JHS.  He also found that the preferability requirement had been satisfied, holding that the JICP was an inadequate alternative.

19                               The issue of punitive damages was also common to all those who alleged that they had themselves been abused at JHS, Mackenzie J.A. concluded.  “Any award for punitive damages,” he wrote, “should reflect the overall culpability of the defendant.  It does not have to be linked to the harm caused to any particular claimant and does not require individualized assessment.”  He continued: “[a] global award can be assessed for the successful class members as a group, and allocated among them as the trial judge considers appropriate” (p. 17).

20                               Mackenzie J.A. rejected, however, the other common issues asserted by the respondents.  He rejected abuse claims of a non-sexual nature, finding that non-sexual abuse was not a central concern of the pleadings and that there was some uncertainty as to whether non-sexual abuse falls within the definition of assault.  He also  rejected “secondary” abuse claims – that is, abuse by a JHS student who had himself or herself been abused at the school.  On this issue he agreed with the chambers judge that questions of duty, foreseeability, and proximity rendered secondary-abuse claims prohibitively complicated and individualized.  Mackenzie J.A. also rejected the educational malpractice claims, finding no precedent suggesting that such claims could be prosecuted successfully and stating that “any attempt to litigate these issues in the same class proceedings as the sexual abuse claims would complicate the proceedings immensely” (p. 15).  Finally he rejected claims for family members’ emotional harm and suffering – claims that relied in part on an allegation of negligent misrepresentation, reasoning that the claims were “amorphous” and in any event  “[i]ssues of reliance and causation linking representations to the harm alleged will undoubtedly vary from claimant to claimant” (p. 16).

21                               Ultimately Mackenzie J.A. defined the class as follows (at p. 18):

Students at the Jericho Hill School between 1950 and 1992 who reside in British Columbia and claim to have suffered injury, loss or damage as a result of misconduct of a sexual nature occurring at the school.

He certified the following questions as common issues (at p. 18):

1.    Was the defendant negligent or in breach of fiduciary duty in failing to take reasonable measures in the operation or management of the school to protect students from misconduct of a sexual nature by employees, agents or other students at the school?

2.    If the answer to common issue no. 1 is “yes”, was the defendant guilty of conduct that justifies an award of punitive damages?

3.    If the answer to common issue no. 2 is “yes”, what amount of punitive damages is awarded?

22                               The appellant now challenges Mackenzie J.A.’s decision, contending that he erred in certifying even the narrower class.

III.               Legislation

23                               Class Proceedings Act, R.S.B.C. 1996, c. 50

4 (1)    The court must certify a proceeding as a class proceeding on an application under section 2 or 3 if all of the following requirements are met:

(a)   the pleadings disclose a cause of action;

(b)   there is an identifiable class of 2 or more persons;

(c)   the claims of the class members raise common issues, whether or not those common issues predominate over issues affecting only individual members;

(d)   a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues;

                                                                   . . .

   (2)    In determining whether a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues, the court must consider all relevant matters including the following:

(a)   whether questions of fact or law common to the members of the class predominate over any questions affecting only individual members;

(b)   whether a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate actions;

(c)   whether the class proceeding would involve claims that are or have been the subject of any other proceedings;

(d)   whether other means of resolving the claims are less practical or less efficient;

(e)   whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means.

7          The court must not refuse to certify a proceeding as a class proceeding merely because of one or more of the following:

(a)   the relief claimed includes a claim for damages that would require individual assessment after determination of the common issues;

(b)   the relief claimed relates to separate contracts involving different class members;

(c)   different remedies are sought for different class members;

(d)   the number of class members or the identity of each class member is not known;

(e)   the class includes a subclass whose members have claims that raise common issues not shared by all class members.

IV.              Issues

24                               Have the respondents satisfied the certification requirements set out in British Columbia’s Class Proceedings Act?

V.                               Analysis

25                               The only issue in this case is whether the Court of Appeal erred in granting certification.  As the respondents do not cross-appeal from the decision of Mackenzie J.A., we need not consider whether certification could have been granted on a broader basis than was recognized by the Court of Appeal.  The only question is whether, given the Court of Appeal’s redefinition of the class and common issues, the certification requirements were met.  Those requirements are set out in s. 4 of the British Columbia Class Proceedings Act and are similar to the certification requirements set out in Ontario’s class action legislation, which I discuss at some length in Hollick.  These reasons discuss the specifics of the British Columbia certification requirements only insofar as they differ materially from those set out in s. 5 of the Ontario Class Proceedings Act, 1992, S.O. 1992, c. 6, and only to the extent that those differences bear directly on my analysis in this case.

26                               Not all of the certification requirements are at issue on this appeal.  The appellant does not dispute that the respondents have met the requirements of s. 4(1)(a), (b), and (e) – that is, the appellant does not dispute that the pleadings disclose a cause of action, that the respondents have stated an identifiable class, and that the respondents would serve as satisfactory representatives of the class.    The issues in dispute are whether there are questions common to the class, as required by s. 4(1)(c), and whether a class proceeding would be the preferable procedure for the fair and efficient resolution of the common issues, as required by s. 4(1)(d).

27                               In my view, both the commonality and preferability requirements are satisfied in this case.  With regard to commonality, I agree with Mackenzie J.A. that all 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 without showing duty and breach.  Resolving those issues, therefore, is “necessary to the resolution of each class member’s claim”: Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534, 2001 SCC 46, at para. 39.  Accordingly I would conclude that Mackenzie J.A. was correct to find that the issues of duty and breach are common to the class.

28                               The appellant concedes that none of the class members can prevail without showing that the appellant’s conduct fell below an acceptable standard, but contends that the nature of the required showing is inescapably individualistic and not amenable to resolution in general terms applicable to all class members.  The appellant does not dispute Mackenzie J.A.’s statement that the “duty of the school to reasonably protect its students from sexual abuse is clear and immutable throughout the period that the school was in operation” (p. 8).  However in the appellant’s view, “[t]he result of this litigation depends not on the definition of the standard of care, but rather the application of that standard to the facts found in respect of the circumstances of each claimant” (appellant’s factum, at para. 64 (emphasis in original)).  The appellant argues that in this case “[l]iability turns not on the breach of a standard of care in the abstract, but on whether the standard of care was breached with respect to the school’s supervision of the particular class member in a way that contributed materially to his/her abuse” (appellant’s factum, at para. 64).  The theory of the appellant is essentially that the Court of Appeal was able to find a common issue within the meaning of s. 4(1)(c) only by framing the commonality between the class members in overly general terms.

29                               There is clearly something to the appellant’s argument that a court should avoid framing commonality between class members in overly broad terms.  As I discussed in Western Canadian Shopping Centres, supra, at para. 39, the guiding question should be the practical one of “whether allowing the suit to proceed as a representative one will avoid duplication of fact-finding or legal analysis”.  It would not serve the ends of either fairness or efficiency to certify an action on the basis of issues that are common only when stated in the most general terms.  Inevitably such an action would ultimately break down into individual proceedings.  That the suit had initially been certified as a class action could only make the proceeding less fair and less efficient.

30                               I cannot agree, however, that such are the circumstances here.  As Mackenzie J.A. noted, the respondents’ argument is based on an allegation of “systemic” negligence – “the failure to have in place management and operations procedures that would reasonably have prevented the abuse” (pp. 8-9).  The respondents assert, for example, that JHS did not have policies in place to deal with abuse, and that JHS acted negligently by placing all residential students in one dormitory in 1978.  These are actions (or omissions) whose reasonability can be determined without reference to the circumstances of any individual class member.  It is true that the respondents’ election to limit their allegations to systemic negligence may make the individual component of the proceedings more difficult; clearly it would be easier for any given complainant to show causation if the established breach were that JHS had failed to address her own complaint of abuse (an individualized breach) than it would be if, for example, the established breach were that JHS had as a general matter failed to respond adequately to some complaints (a “systemic” breach).  As Mackenzie J.A. wrote, however, the respondents “are entitled to restrict the grounds of negligence they wish to advance to make the case more amenable to class proceedings if they choose to do so” (p. 9).

31                               In arguing that the necessary inquiry is inescapably individualistic, the appellant’s principal contention is that the relevant standard of care, if framed at the appropriate level of specificity, would have varied over time.  I am not persuaded that this should be an obstacle to the suit’s proceeding as a class action.  It is true that there has been a “dramatic . . . evolution” in law relating to sexual abuse between 1950 and 1992 and it is quite possible that the nature of a school’s obligations to its students has changed over time.  However, courts have often allowed class actions to proceed in similar circumstances: see, e.g., Anderson v. Wilson (1999), 44 O.R. (3d) 673 (C.A.) (certifying class action for medical malpractice even though the action “concern[ed] allegations of a general practice over a number of years falling below acceptable standards” (p. 683)); Chace v. Crane Canada Inc. (1996), 26 B.C.L.R. (3d) 339 (S.C.) (certifying class action for negligent manufacture and sale over 11-year period on grounds that, if the defendant were “partially successful in its defence and ultimately found to have been negligent over part of the period only, that result c[ould] be accommodated in the answer to the general question” (p. 347)); Endean v. Canadian Red Cross Society (1997), 148 D.L.R. (4th) 158 (B.C.S.C.) (certifying class action for negligence and spoliation over four-year period notwithstanding defendant’s argument that “the standard of care would have been in flux throughout the material time” (p. 168)). 

32                               That the standard of care may have varied over the relevant time period simply means that the court may find it necessary to provide a nuanced answer to the common question.  The structure of the Berger report, which explicitly divides the years between 1982 and 1991 into three discrete subperiods, suggests that such an approach would not be infeasible.  I further note that the Class Proceedings Act contemplates the possibility of subclasses and that the court may amend the certification order at any time: see s. 6(1) (permitting court to recognize subclasses under certain conditions); s. 7(e) (stating that the court “must not refuse to certify a proceeding as a class proceeding merely because . . . the class includes a subclass whose members have claims that raise common issues not shared by all class members”); s. 8(3) (stating that “[t]he court, on the application of a party or class member, may at any time amend a certification order”); s. 10(1) (stating that “[w]ithout limiting section 8(3), at any time after a certification order is made . . . the court may amend the certification order”).   In my view the Class Proceedings Act provides the court with ample flexibility to deal with limited differentiation amongst the class members as and if such differentiation becomes evident.

33                               As the Court of Appeal noted (at p. 9), it is in fact quite likely that there will be relevant differences between the class members:

Limiting the ground of liability to systemic negligence does not eliminate all differences among class members.  As the Berger report noted, the duty owed may vary over time depending upon the state of knowledge of those in charge of the school, the reasonably informed educational standards and policies of the day, the measures implemented to prevent abuse and other factors.  At the end of the case, liability could be imposed for abuse during certain periods of the school’s operation and not in others.  It is conceivable that liability might be differentiated in other ways, for example abuse inflicted by staff but not by other students.

For the reasons stated above, however, I agree with Mackenzie J.A. that these differences are not insurmountable.  In any event I question the extent to which differences between the class members should be taken into account at this stage.  The British Columbia Class Proceedings Act explicitly states that the commonality requirement may be satisfied “whether or not [the] common issues predominate over issues affecting only individual members”: s. 4(1)(c).  (This distinguishes the British Columbia legislation from the corresponding Ontario legislation, which is silent as to whether predominance should be a factor in the commonality inquiry.)  While the  British Columbia Class Proceedings Act clearly contemplates that predominance will be a factor in the preferability inquiry (a point to which I will return below), it makes equally clear that predominance should not be a factor at the commonality stage.  In my view the question at the commonality stage is, at least under the British Columbia Class Proceedings Act, quite narrow.

34                               As noted above, Mackenzie J.A. certified as common not only the standard-of-care issue but also the punitive damages issues.  Here, too, I agree with his reasoning.  In this case resolving the primary common issue – whether JHS breached a duty of care or fiduciary duty to the complainants – will require the court to assess the knowledge and conduct of those in charge of JHS over a long period of time.  This is exactly the kind of fact-finding that will be necessary to determine whether punitive damages are justified: see, e.g., Endean, supra, at para. 48 (“An award of punitive damages is founded on the conduct of the defendant, unrelated to its effect on the plaintiff.”).  Clearly, the appropriateness and amount of punitive damages will not always be amenable to determination as a common issue.  Here, however, the respondents have limited the possible grounds of liability to systemic negligence – that is, negligence not specific to any one victim but rather to the class of victims as a group.  In my view the appropriateness and amount of punitive damages is, in this case, a question amenable to resolution as a common issue: see Chace, supra, at para. 30 (certifying punitive damages as a common issue on the grounds that the plaintiffs’ negligence claim was “advance[d] . . . as a general proposition” rather than by reference to conduct specific to any one plaintiff).

35                               The question remains whether a class action would be the preferable procedure.  Here I would begin by incorporating my discussion in Hollick as to the meaning of preferability: see Hollick, supra, at paras. 28-31.  While the legislative history of the British Columbia Class Proceedings Act is of course different from that of the corresponding Ontario legislation, in my view the preferability inquiry is, at least in general terms, the same under each statute.  The inquiry is directed at two questions: first, “whether or not the class proceeding [would be] a fair, efficient and manageable method of advancing the claim”, and second, whether the class proceedings would be preferable “in the sense of preferable to other procedures” (Hollick, at para. 28).  I would note one difference, however, between the British Columbia Class Proceedings Act and the corresponding Ontario legislation.  Like the British Columbia legislation, the Ontario legislation requires that a class action be “the preferable procedure” for the resolution of the common issues: see Ontario Class Proceedings Act, 1992, s. 5(1)(d); British Columbia Class Proceedings Act, s. 4(1)(d).  Unlike the Ontario legislation, however, the British Columbia legislation provides express guidance as to how a court should approach the preferability question, listing five factors that the court must consider: see s. 4(2).  I turn, now, to these factors.

36                               The first factor is “whether questions of fact or law common to the members of the class predominate over any questions affecting only individual members”: s. 4(2)(a).  As I noted above, it seems likely that there will be relevant differences between class members here.  It should be remembered, however, that as the respondents have limited their claims to claims of “systemic” negligence, the central issues in this suit will be the nature of the duty owed by JHS to the class members and whether that duty was breached.  Those issues are amenable to resolution in a class proceeding.  While the issues of injury and causation will have to be litigated in individual proceedings following resolution of the common issue (assuming the common issue is decided in favour of the class, or at least in favour of some segment of the class), in my view the individual issues will be a relatively minor aspect of this case.  There is no dispute that abuse occurred at the school.  The essential question is whether the school should have prevented the abuse or responded to it differently.  I would conclude that the common issues predominate over those affecting only individual class members.

37                               The second factor is “whether a significant number of the members of the class have a valid interest in individually controlling the prosecution of separate actions”, and the third is “whether the class proceeding would involve claims that are or have been the subject of any other proceedings”: s. 4(2)(b), (c).  On these factors I would note again that no class member will be able to prevail without making an individual showing of injury and causation.  Thus it cannot be said that allowing this suit to proceed as a class action will force complainants into a passive role.  Each class member will retain control over his or her individual action, and his or her ultimate recovery will be determined by the outcome of the individual proceedings on injury and causation (assuming, again, that the common issue is resolved in favour of the class).  Further there is little evidence here to suggest that any significant number of class members would prefer to proceed individually.

38                               I turn next to the fourth factor, which asks “whether other means of resolving the claims are less practical or less efficient”: s. 4(2)(d).  On this point I would agree with the Court of Appeal that individual actions would be less practical and less efficient than would be a class proceeding.  As Mackenzie J.A. noted (at pp. 9-10), “[i]ssues related to policy and administration of the school, qualification and training of staff, dormitory conditions and so on are likely to have common elements”.  Further, “[t]he overall history and evolution of the school is likely to be important background for the claims generally and it would be needlessly expensive to require proof in separate individual cases” (p. 10).  I would also agree with Mackenzie J.A. (and indeed with Kirkpatrick J.) that the JICP does not provide an adequate alternative to a class action.  Amongst other limitations, the JICP program limits the recovery of any one complainant to $60,000, and it does not permit complainants to be represented by counsel before the panel.  The JICP simply cannot be said to be an adequate alternative to a class proceeding.

39                               The final factor is “whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief were sought by other means”: s. 4(2)(e).  On this point it is necessary to emphasize the particular vulnerability of the plaintiffs in this case.  The individual class members are deaf or blind or both.  Litigation is always a difficult process but I am convinced that it will be extraordinarily so for the class members here.  Allowing the suit to proceed  as a class action may go some way toward mitigating the difficulties that will be faced by the class members.  I am in full agreement, therefore, with Mackenzie J.A.’s conclusion that “[t]he communications barriers faced by the students both at the time of the assaults alleged and currently in the litigation process favour a common process to explain the significance of those barriers and to elicit relevant evidence.”  As he wrote, “[a] group action should assist in marshalling the expertise required to assist individual students in communicating their testimony effectively” (p. 9).

40                               I conclude that the respondents have satisfied the certification requirements set out in s. 4 of the British Columbia Class Proceedings Act.

41                               The appeal is dismissed.  The respondents shall have costs throughout.

Appeal dismissed with costs.

Solicitor for the appellant:  The Ministry of the Attorney General, Vancouver.

Solicitors for the respondents:  Acheson & Company, Victoria;  McDonagh Sheane, Victoria.