Crown wards overcome roadblock in landmark lawsuit

Crown wards who suffered abuse and neglect in Ontario have cleared a major roadblock in their battle to proceed with a landmark $100-million class-action lawsuit against the province.

The proposed lawsuit seeks damages on behalf of an estimated 40,000 Crown wards going back as far as 1966. The plaintiffs allege the province failed to protect their legal right to secure compensation for physical, sexual and emotion abuse they endured in the system.

“We want justice, but we also want to be validated,” Thunder Bay resident Toni Grann, 48, one of the lead plaintiffs, told the Star. “It comes down to validating the fact that these things happened ... The Crown put itself in a position to presumably fight for us, look after us, and they absolutely, completely failed.”

This week, Ontario Superior Court Justice Helen Pierce denied a motion by the province to strike down the lawsuit. She also found that the lawsuit meets the first of five tests required for certification.

The proposed lawsuit is the first of its kind in Ontario, and only the second in Canada. None of the claims has been tested in court.

The plaintiffs allege that the province, as the legal guardian of Crown wards, shirked its responsibility to pursue justice on behalf of those who suffered abuse. Meanwhile, limitation periods expired and evidence disappeared, the statement of claim alleges.

As a result, the children were unable to seek civil remedies or support from Ontario’s Criminal Injuries Compensation Board, the statement of claim alleges.

In the motion denied this week, the province argued the law does not impose a “duty of care” on the Crown “to bring proceedings on behalf of Crown wards.” Instead, the province argued, the legislation gives this responsibility to Children’s Aid Societies, and that “imposing such a duty” on the government would conflict with the powers assigned to the societies.

Justice Pierce sided with the plaintiffs, comparing the relationship between the province and wards to that of parent and child.

“I conclude that a private law duty of care analogous to that between parent and child has been recognized as subsisting between the plaintiffs (crown wards) and the defendant (the province),” she wrote in her decision.

On Friday, a spokesman for the Ministry of the Attorney General pointed out that while the court agreed the first step of the certification test had been met, “the claim was not certified and the issue of certification will be argued at a future date.”

The statement of claim catalogues horrendous alleged abuses.

Made a Crown ward after suffering physical abuse in her family home, Grann was repeatedly raped and sodomized by her adoptive father, beginning at age 5, the statement alleges. When she fled the home at age 10, she sought refuge at a CAS office in Hamilton.

“The Crown or its agents were aware of the abuse suffered by Toni, but no actions were taken,” the statement alleges.

Grann said she did not know about the victim compensation fund until she learned about the lawsuit last year.

“I personally could have used the funds to get through university a little easier,” she said. “It could have helped with therapy.”

Koskie Minsky lawyer Jonathan Ptak, co-lead counsel on the case, lauded Justice Pierce’s decision as “an important milestone.”

“They (the province) posited complete immunity to the allegations of these thousands of children, and the judge concluded that’s not the case,” Ptak said. “There is no immunity for the Crown in these circumstances.”

With files from Kim Nursall