In Cavanaugh v. Grenville Christian College, the Ontario Superior Court held that, in appropriate circumstances, it is possible to determine that an institutional defendant was systemically negligent by relying on specific and relatively narrow evidence from select class members. In this blog post, we review what kind of evidence is necessary to establish systemic negligence.
An “unreasonable institution”
The claim was brought by former students of a private Christian boarding school that operated from the 1960s through the 1990s outside of Brockville, Ontario. Beginning in 1973, the school implemented a strict “corrective” approach to education inspired by the Community of Jesus (“COJ”) in New England. Students were subjected to harsh discipline such as paddling causing injury; menial and degrading chores; public humiliation sessions; an “honour code” that required them to report breaches of the rules by their peers; and strict policing of sexuality including verbal abuse, conversion therapy, and mandatory HIV/AIDS blood testing.
The plaintiffs argued that the operating minds of Grenville intentionally adopted educational practices that were distinct from other schools and caused foreseeable harm to students. Although the defence conceded that certain practices fell below the standard of care, they claimed that these were “one-off” excesses that did not amount to systemic negligence towards the entire class. Following a rare, five-week common issues trial, Justice Leiper agreed with the plaintiffs that Grenville was operated negligently, had breached its duties to the class, and should pay both punitive and compensatory damages. The amount of damages must now be determined in further proceedings.
What evidence is necessary to establish systemic harm?
The court focused on “evidence of Grenville’s institutional methods and routines, its norms and expectations, and how it enforced those norms and expectations as a way of understanding whether it breached the standard of care and its duties to its students.” This evidence took several forms.
Documented principles and policies
The attitudes and norms that formed the basis of Grenville’s disciplinary methods were described in various school records. The plaintiffs introduced speeches, letters, press statements, and audio recordings from school headmasters that lauded Grenville’s new corrective approach. They also led evidence of the COJ principles that became foundational to the school’s philosophy, a handbook that codified some of its many rules, and a one-time parent survey that revealed various concerns with its disciplinary practices. This demonstrated that the use of strict discipline was purposely embedded in Grenville’s operating policy from the beginning of the class period.
Corroboration of institutional practices
While the court did not require testimony from every class member, it did hear from a sample of former Grenville students and staff about their recollections of daily life. Justice Leiper found that despite individual differences in experience and perception, this evidence was “remarkably consistent” regarding the nature and disciplinary practices of the institution throughout the class period.
Expert evidence of comparable institutions and impact
Key to the court’s conclusions were two expert witnesses called by the plaintiffs. The standard of care owed by Grenville was established through expert evidence on Ontario’s education system during the era. The court’s analysis of class member testimony was also heavily informed by psychological evidence on child abuse and vulnerability in institutional settings.
The question of differential experiences
The defendants produced several former students who shared more positive recollections of their time at Grenville. Rather than begin her analysis with these subjective differences in experience, as the defence suggested, Justice Leiper made clear that the court’s inquiry was systemic in nature:
Although there was evidence tendered about the atmosphere at the school as experienced by various students, this class action concerns the practices and policies at Grenville. The Divisional Court had certified the Grenville action based on allegations of systemic negligence in how the defendants ran the school and not on the basis that every member of the class suffered the same or any of the abuse alleged by the plaintiffs.
Furthermore, the court found a clear explanation for the spectrum of student experiences. In particular, discipline was often meted out arbitrarily, on the whim of the headmaster, and without written policies, controls, or accountability (e.g., to a board of directors). Children of major donors or prominent individuals—which included most of the defence witnesses—were generally shielded from the worst of the school’s excesses. Justice Leiper also accepted expert evidence that “differently situated people will have different reactions to the same conditions” due to various “resiliency factors” that impact their coping ability. She concluded:
I find that the evidence of the harmful acts is not diminished or weakened because not all students experienced such harms. Partiality in treatment and individual resilience accounts for the differences in impact and experience. This is the logical boundary between the common issues and the individual issues trials. To the extent that only a percentage of students were harmed by practices that fell below the standard, the defendants will only be liable to those damages.
Cavanaugh is one of the first systemic negligence cases concerned with an institutional setting to receive a full hearing on the merits in a common issues trial. Justice Leiper’s decision makes clear that where a class proceeding alleges that a defendant’s policies or practices systemically harmed a class, it is not necessary to adduce evidence from every class member. In addition to representative witness testimony, a plaintiff can rely on evidence of the defendant’s operations as expressed in policies, public statements, interviews, correspondence, meeting minutes, or similar institutional records. The plaintiff may also want to present expert evidence to help characterize the impacts of the defendant’s practices or to draw comparisons with other institutions.
This development in the law is important given the evidentiary hurdles in establishing negligence for historic abuse class actions which can span many decades. It also suggests new opportunities to establish systemic negligence in operations with relatively centralized control and command structures.
This post was co-authored by Erin Sobat, one of our 2020 summer students.