Damages claimed for alleged financial loss, physical and psychological trauma
The Alberta Court of Appeal recently allowed an appeal in a case where the trial court refused to certify a proposed class proceeding alleging physical and psychological trauma and financial loss and damage at the hands of a priest.
The plaintiff in this case requested the certification of a class action under Alberta’s Class Proceedings Act, 2003. He alleged that an Anglican priest employed by the Synod of the Diocese of Edmonton provided chaplaincy, spiritual, and other services to those detained at the Edmonton Youth Development Centre, a correctional institution for young offenders operated by the Alberta government.
The priest faced criminal charges but died before trial. In the civil proceeding, the plaintiff claimed damages against the priest for sexual assault on behalf of himself and the prospective class.
He made the following allegations:
- The priest had a position of authority and control over the proposed class members, who were highly vulnerable persons
- He had work requiring him to meet them in small group or individual settings, often unsupervised
- He exploited his position of authority to sexually assault them between 1985 and 1989 while they were detained at the centre
- The synod and the provincial government were vicariously or otherwise directly liable for his assaultive behaviour
- They owed a duty of care to the centre’s detainees
- They breached that duty by failing to provide an environment that was safe, secure, and free from sexual abuse; by failing to investigate and screen the priest before his placement at the centre and before his contact with the detainees; by failing to adequately supervise him; and by failing to establish, to implement, or to enforce adequate policies, practices, or procedures for protection against sexual abuse
In April 2022, in VLM v Dominey, 2022 ABQB 299, the Alberta Court of King’s Bench refused to certify the proposed class action.
The case management judge found that the plaintiff met all the certification preconditions under s. 5 of the Act except the requirement in s. 5(1)(d) and (2), which stated that a class proceeding should be the preferable procedure to resolve the common issues fairly and efficiently.
The judge decided that a class proceeding was not the preferable procedure for resolving these issues, given that the common issues did not predominate over the individual ones. The plaintiff challenged the denial of certification.
Class proceeding preferred
In V.L.M. v Dominey Estate, 2023 ABCA 261, the Alberta Court of Appeal allowed the appeal and referred the matter back to the trial court, which would enable it to make any necessary or appropriate refinement of the common issues and to deal with other details relating to the certification.
A class proceeding would be the preferred procedure for resolving common issues, such as what the common background circumstances at the centre were and whether the synod and the Alberta government were directly or vicariously responsible for the damage suffered due to the priest’s alleged sexual assaults against the detainees, the appellate court ruled.
These broad issues would cover all potential routes to liability, the appellate court held. Either the synod or the provincial government could be vicariously liable if the priest had an employment relationship with them or a sui generis relationship close enough to lead to vicarious liability, the appellate court explained.
If they were not vicariously liable, they might be directly liable if the evidence could establish that they had a duty to prevent the occurrence of sexual assaults and negligently failed to fulfill that duty, the appellate court added.
Framing the issues as “systemic negligence” blurred the proper focus of the analysis, the appellate court noted.
The case management judge wrongly assumed that resolution of the common issues would not be the preferable procedure unless it would result in a final determination of liability, the appellate court found.
Rather, the test should be whether resolving the common issues would advance the action, even if other individual issues would be resolved later, the appellate court said.
The judge also improperly concluded that vicarious liability would depend on the circumstances of the individual assaults, the appellate court held.
Instead, vicarious liability would arise if the priest had an employment relationship with the synod and with the Alberta government and if his tortious conduct was sufficiently connected to the risks of the employer’s enterprise, the appellate court said.
