Marie Slark was hopeful when former residents of the Huronia Regional Centre (HRC) came together in a class-action to sue the province for forcing them to linger for years in an abusive and toxic environment.
She was taken to the former Orillia facility for people with developmental disabilities when she was seven years old, enduring all sorts of abuses until she was let out at age 20.
Maybe, she thought hopefully when the $2-billion claim was launched, she could buy her own home.
But in the end, the case was settled for $35 million. And for years of physical, sexual and emotional abuse, the maximum former residents could receive was $42,000.
“It wasn’t really worth going to court for,” said Slark, now 64 and living independently in an apartment in Toronto. “Those who don’t speak only got $2,000” no matter how long they lived at the Orillia facility or what they endured.
If she and other people who knew them hadn’t spoken out for them, her brother, Tommy, and sister, Karen, would have received nothing more than the $2,000 minimum, she added.
The class size was estimated by the court to be 4,308 people who were still alive in 2013. But the exact number was never fully determined.
In the end, 1,705 claims were accepted.
When Toronto lawyer Loretta Merritt argues passionately that individual lawsuits are often a better approach for victims of historic institutional abuse, particularly those involving sexual abuse, than class actions, she points to the HRC case, along with a series of other settlements in Ontario, including several institutions in Simcoe County, which are now all closed.
“I think an individual action is a good idea a lot of the time,” said Merritt.
An individual plaintiff is in the driver’s seat, directing its course. So they, not the lawyers, decide whether to settle or not, she said.
Merritt adds that they have the opportunity to have their own individual story told and they can customize the settlement for their own individual needs.
But a big part of her argument is the financial outcome.
Class-actions can be to the defendant’s advantage, allowing them to pay “pennies on the dollar” for those who come forward and collect damages under the class proceeding, she said. They could also get back any settlement fund money that isn’t paid out.
And any abuse survivors who don’t come forward to collect their money under the class-action and haven’t already opted out, no longer have a chance to claim anything. The class-action extinguishes future claims whether victims are aware of the class-action or not.
“They can get a whole lot more money” through individual lawsuits, she said. “I’m talking many multiples” of what class members have been getting in Ontario.
She points to settlement decisions in several local historic institutional abuse cases involving thousands of victims:
- The court approved a final settlement for former HRC residents in December 2013 for $35 million. The lawyers’ cut was $8.5 million, according to Merritt’s analysis.
- The Sheila Morrison School for learning disabilities in Utopia, which is between Barrie and Angus, resulted in a $4-million court-approved settlement in March 2013. Class members received a maximum of $50,000. Merrit found that the lawyers were paid $1.1 million.
- In another class-action involving several institutions across the province, residents of the former Edgar Adult Occupational Centre near Horseshoe Valley received a maximum of $42,000. The total settlement approved by the court in April 2016 for residents at Edgar, Muskoka Centre and several other institutions was nearly $36 million. The lawyers received $3.7 million.
All those class-actions were handled by the Toronto law firm, Koskie Minsky LLP, who did not respond to requests for an interview.
Jody Brown was one of several lawyers at Koskie Minsky LLP handling those lawsuits on behalf of the residents and now practises with Goldblatt Partners LLP. He agrees that class-actions are not necessarily suitable for all situations involving several plaintiffs.
“My opinion is that it’s not just class-action versus individual cases in these abuse situations,” he said. “It’s looking at the nature of the claims in the group and whether class-action’s going to be the right vehicle to effectively reach this group.
“You’ve really got to look at the people in the case and the harm alleged as to which one might be the best way to go.”
A group of individuals aggregating their claim wields more power than an individual, he said.
People who are harmed also find some comfort facing the organization accused of wrongdoing in court action in the company of others who have been similarly affected so that they’re not alone.
Brown added that class-actions can tap into notice programs available through advocates to get the word out in hopes of reaching all the people impacted. In Ontario, everyone is automatically part of that defined class unless they decide to opt out.
Class-actions also achieve more than financial compensation for class members
Those who called the Huronia Regional Centre home between 1945 and 2009 when it closed received a lengthy apology from then-premier Kathleen Wynne just two weeks before Christmas in 2013 for the neglect and abuse they suffered living in the Orillia facility.
With former residents in the gallery of the Legislature, she acknowledged that some had been forcibly restrained, left in seclusion, exploited for their labour and crowded into unsanitary dormitories.
The following year a commemorative plaque was installed on site to honour the memory of the centre’s residents. A cemetery registry was also created.
The government filed many of the documents detailing the history of HRC with the Archives of Ontario to ensure that the sad era of the institutionalization of society’s most vulnerable wouldn’t escape the grip of history.
And of the $35-million total award, about $7.4 million in surplus was used for Strategic Program Investments, which helped groups designed to assist people with developmental disabilities as well as funding efforts to tell some of the HRC stories, which was important to Slark and others whose earlier complaints about the abuse were dismissed.
The case didn’t go smoothly and definitely didn’t achieve everything the former residents had hoped for. But residents like Slark, who served as one of two representative plaintiffs, are satisfied that the world now knows what happened for so many years at the facility.
In the end, social worker Marilyn Dolmage, who advocated for Slark and the HRC residents and was a big part in getting the ball rolling, feels torn.
“I see people jumping into class-actions,” she said. “It would be good for them to know more.”
