The April 2022 Ontario Court of Appeal decision, M.J.H. v Kenora-Rainy River Districts Child & Family Services,[1] dismissed a motion by the Ontario Trial Lawyers Association to act as an intervenor in the appeal of the lower court decision, which had been a status hearing under Rule 48.14(5), wherein Fregeau J of the Superior Court of Justice dismissed the action because the Plaintiffs had not provided an acceptable explanation for their delay in prosecuting the action.[2] The claim involved historic physical and sexual abuse. The motion was heard on April 7, 2022, and the appeal was scheduled to be heard April 26, 2022.[3]
The Court missed the opportunity to take a trauma-informed approach and allow OTLA to present its public policy argument, which aimed to address a significant unfairness in the Rules of Civil Procedure, that particularly affects historic abuse claimants.
Background
The Appellants, who are siblings, are members of the Mitaanjigamiing First Nation in Northwestern Ontario. Between approximately 1966 and 1974 they were wards of the Kenora-Rainy River Districts Child & Family Services (KRRD CFS), and were placed into various foster homes, including the Zimmerman home, where they allege they were physically and/or sexually abused on an ongoing basis.[4] They brought their claim in February 2015, and subsequently the Zimmermans both died, leaving their estates as respondents, in addition to the KRRD CFS.[5]
Due to various delays, the matter was not set down for trial prior to January 2020, and the Respondents refused to agree to a proposed timetable.[6] The Appellants retained new counsel and proceeded with a contested status hearing, which was further delayed by the onset of the Covid-19 pandemic.
The lower court dismissed the action, finding that there was no acceptable explanation for the delay in prosecuting the action. First, the scheduling of discoveries became a significant issue. Initially, all counsel agreed to discovery dates being scheduled for October 2016.[7] It was known at that time that Mr. Zimmerman was in frail health, and his examination was agreed to proceed as a Rule 36 examination.[8]
Then, in September 2016, after reviewing the Plaintiffs’ affidavit of documents, KRRD CFS advised all other parties that it had instructions to commence a third party action against Canada because the Plaintiffs had been in the “Indian Residential School System” and had received compensation for harm suffered as a result.[9] The Plaintiffs were opposed to the addition of Canada as a third party because it could not possibly be liable for any of the alleged damages.[10] Plaintiffs’ counsel subsequently cancelled the Plaintiffs scheduled discoveries, not wanting to expose them to the risk of being discovered once by the defendants and then potentially again at a later date by the third party.[11] Counsel for Mr. Zimmerman then advised he would not produce his client without having first examined the Plaintiffs.[12]
Canada then advised it would move to strike the third party claim if it was issued.[13] KRRD CFS issued the third party claim against Canada in January 2017. In February 2017 the Plaintiffs attempted to reschedule discoveries.[14] KRRD CFS advised it was not prepared to schedule dates until it had received Canada’s Statement of Defence, affidavit of documents, and productions. KRRD CFS did not press Canada to produce its pleadings or documents, however.[15] In fact, at the time of the status hearing, no Statement of Defence had been filed by Canada.[16] In July 2017 counsel for Canada advised KRRD CFS that she had instructions to move to strike the third party claim brought against it, however Canada never brought that motion.[17]
Additionally, in September 2017 counsel for the Plaintiffs advised she was seeking instructions on whether a class proceeding would be a more appropriate vehicle to pursue the historic abuse claims. Discussions with three separate class action law firms ensued, until approximately December 2018.[18] In February 2019 the Plaintiff Janice Henderson instructed her counsel that she would not act as representative plaintiff in a class action against KRRD CFS.[19] The lower court took issue with this delay of 17 months, questioning why instructions were not sought earlier with respect to this fundamental issue.[20]
As of February 2019, Plaintiffs’ counsel intended to move the original action forward, but failed to act until November 2019 when she circulated a proposed timetable, which the defendants did not accept.[21] The matter was then scheduled for a contested status hearing, in which the lower court dismissed the action for delay.
OTLA’s Proposed Intervention
OTLA’s motion to intervene proposed to argue the absurdity in the Rules of Civil Procedure, that works to prejudice those like the Appellants whose claims are dismissed following a status hearing.[22] The absurdity arises because certain plaintiffs whose actions are dismissed may start another similar action, whereas appellants such as the Hendersons could not do so.[23] The distinction is arbitrary, and depends on the manner in which the action was dismissed. Plaintiffs whose actions are dismissed by a judge on a defendant’s motion under Rule 24.01, or by the Registrar under Rule 48.14(1) may bring another similar action, however plaintiffs whose actions are dismissed at a status hearing do not have similar recourse, because of the construction of the current version of the Rules.[24] OTLA argued that this outcome is especially absurd for plaintiffs whose claims for historical abuse are not otherwise subject to a limitation on when they may be brought.[25]
OTLA further proposed that the test for dismissal by a status hearing judge should be reformulated to purge the absurdity in the Rules. In cases of historic abuse where there is no limitation defence, an action should only be dismissed at a status hearing if the plaintiff’s delay is contumelious or if the action is frivolous and vexatious.[26]
The Court’s Findings
The Court of Appeal dismissed OTLA’s motion to intervene. It found that there was no evidence the Appellants’ actions could be explained on the basis that OTLA asserted, and that the Appellants themselves did not seek to do so.[27] It further found that the intervention would “radically expand the scope of the appeal” and would likely require an adjournment to allow the respondents time to prepare a response.[28]
Further, the Court found the issue OTLA raised would be a new issue and an “entirely new argument on appeal”, which was something “this court rarely allows”, given there was no “relevant factual evidence” and no lower court decision on the issue.[29] The Court considered the matter a “private dispute”, in which a determination on the issue OTLA raised “could well result in a further appeal, which the parties are in no position to fund”.[30]
Finally, the Court stated that an experienced intervenor should be aware that late intervention motions are discouraged due to their impact on scheduled appeals, especially considering best practices weren’t followed by providing a draft factum with the Notice of Motion, which combined with not articulating its oral argument in its motion factum, left the responding parties “in the dark” about the argument to which they were required to respond.[31] The Court therefore dismissed the motion with costs.
Commentary
This decision is an unfortunate one for historic abuse claimants, who find themselves facing a contested status hearing as a result of delay in their action. Because there is no limitation to bring an historic abuse claim, counsel who are approaching the five year time limit would be better off taking no action and allowing the matter to be dismissed by the Registrar under Rule 48.14(1), or on motion of the defendants under Rule 24.01. This would not preclude a defendant from bringing a motion for a status hearing under Rule 48.14(5), however, especially given the benefit to the defendant in such claims if the action is dismissed as a result.
Further, the Court of Appeal noted “best practices” were not followed, because OTLA did not provide a draft factum with the Notice of Motion. The current Practice Direction makes no mention of such a practice, however, although the Court website does state the Practice Direction is currently being updated. It would therefore be prudent to include a draft factum with the Notice of Motion, and this is expected to be noted in the updated version of the Practice Direction.
In terms of timing, the Court was critical that OTLA brought the motion to intervene three weeks prior to the scheduled appeal. In this case the Defendants agreed in advance to the timing, but then argued it as an issue at the motion hearing. It would therefore be prudent to obtain agreement from any defendant regarding timing in writing, to avoid such sharp practice.
The purpose of OTLA’s intervention was to make the argument about the absurdity that currently exists in the Rules of Civil Procedure, for plaintiffs who find their actions dismissed as a result of a status hearing, as compared to a dismissal by the Registrar under Rule 48.14(1) or as a result of a motion under Rule 24.01, wherein another similar action could be commenced, which is especially absurd considering there is no limitation to commence a claim based on historic abuse.
The dispute was private, but the argument OTLA proposed on the intervention motion was in the public interest. It was not put forward by the Appellants in the lower court, which is precisely why OTLA was well-situated to present the argument that the Court should rectify the absurdity in the Rules on public policy grounds. Instead, the Court seemed to indicate that because the Appellants had not presented the argument specifically tied to factual evidence in the lower court, there was no basis for the argument to be presented on appeal.
This is unfortunate given the Legislature accepted that historic abuse claimants experience difficulty bringing such claims due to the nature of the trauma experienced, and that for many survivors, the legal process can be re-traumatizing; thus limitation periods for historic abuse claims were removed in 2016. This is particularly relevant for First Nations claimants who often have multiple layers of additional trauma.
In the context of a claim for historic abuse dating back 50 years, an additional delay of 17 months to explore an alternative litigation strategy that may have better served the needs of the First Nations survivors and community does not seem unreasonable. That such a process would be complex and emotionally time-consuming for the survivors is understandable. In fact, exploring an alternative litigation strategy that may serve the needs of the First Nations community, instead of just the individual claimants, was an important and meaningful step in the overall litigation for the Appellants. This should have been contextualized by the Court as delivering on the Truth and Reconciliation Commission’s Calls to Action. This was precisely the type of dispute where an intervenor in the public interest should have been entitled to present a policy argument that would rectify an unfairness facing similarly situated claimants moving forward. The Court failed to recognize the social utility in OTLA’s proposed intervention, and missed the opportunity to rectify an injustice, particularly for First Nations survivors of historic abuse.
[1] M.J.H. v Kenora-Rainy River Districts Child & Family Services, 2022 ONCA 292
[2] Henderson v Kenora-Rainy River Districts Child & Family Services, 2021 ONSC 5631
[3] The appeal was heard April 26, 2022, wherein the Court dismissed the appeal. Reasons can be found reported in Henderson v Kenora-Rainy River Districts Child & Family Services, 2022 ONCA 387
[4] Henderson, supra note 2 at 5-6
[5] Ibid at 4, 35
[6] Ibid at 36
[7] Ibid at 17
[8] Ibid
[9] Ibid at 18
[10] Ibid at 20
[11] Ibid at 21
[12] Ibid at 22
[13] Ibid at 23
[14] Ibid at 26
[15] Ibid
[16] Ibid at 25
[17] Ibid at 28
[18] Ibid at 30-31
[19] Ibid at 32
[20] Ibid at 88
[21] Ibid at 33, 34
[22] M.J.H., supra note 1 at 5
[23] Ibid at 6
[24] Ibid
[25] Ibid
[26] Ibid at 7
[27] Ibid at 11
[28] Ibid at 13
[29] Ibid at 12
[30] Ibid at 14
[31] Ibid at 15
