Intervenor Status Granted in Institutional Sexual Abuse Claim

In a decision that could have important consequences for the legal system in British Columbia, an individual was granted intervenor status in a certification hearing for a proposed class action. Mr. John Drescher is represented by Joseph Fearon from our Ontario and British Columbia offices and received support from Ontario-based Russ Howe of Preszler Injury Lawyers to bring forth his application.

Liptrot v. Vancouver College Limited, 2022 BCSC 1762 is a proposed class action alleging that, between 1976 and 2013, numerous students at two Greater Vancouver high schools were physically and sexually abused by members of the schools’ staff. The proposed lawsuit names Vancouver College, St. Thomas More Collegiate, the Roman Catholic Archbishop of Vancouver, and several Christian Brothers who taught at the aforementioned schools after being accused of abusing children at Newfoundland’s Mount Cashel Orphanage.

In August 2022, a week-long certification hearing was scheduled so that a judge could decide whether the class action could proceed. One week beforehand, Mr. Drescher’s application for intervenor status was heard via videoconference by the Honourable Justice Coval.

Our client alleges that when he was 14 and 15 years old, he was sexually assaulted multiple times by a religious leader at St. Thomas More Collegiate, which would make him a potential class member in this action.

Mr. Drescher is, instead, pursuing a civil claim against his alleged abuser, the school, and other parties.

Mr. Drescher sought an application for intervenor status so that he could provide the perspective of potential class members who might suffer negative, unintended consequences as a result of the proposed class action.

After considering his argument and an affidavit from Russ Howe supporting his perspectives, the Honourable Justice Coval granted Mr. Drescher intervenor status for the certification hearing.

This is the first time to the firm’s knowledge that an individual has been granted intervenor status in this manner. Intervenor status is generally reserved for special interest groups, or groups with particular areas of expertise.

Mr. Drescher was successful in arguing that he brought an important perspective forward for the Court and that his lived experience was a valuable contribution.

Background Information

Allegations of historic abuse at Vancouver College and St. Thomas More Collegiate are continuing to surface, as more and more victims of physical and sexual assault are coming forward to speak about their harrowing experiences at these schools. The allegations, which have not yet been proven in court, claim that teachers and religious leaders from the infamous Mount Cashel Orphanage in St John’s, Newfoundland, were sent to these Greater Vancouver-area schools after being accused of—and, in some cases, admitting to—abusing children. Allegedly, at least one of these members of the Christian Brothers of Ireland in Canada continued to abuse students after being relocated to British Columbia.

Members of the proposed class action allege that they were abused by teachers employed by these schools between the 1970s and early 2000s. The class members include students who attended these high schools between 1976 and 2013, the year one alleged abuser retired after being suspended from Vancouver College with pay.

Class action lawsuits involve a group of similarly aggrieved complainants who pursue justice and restitution as a collective. Typically, the whole group (referred to as a “class”) is represented by a single member and their lawyers. All decisions regarding the action are made by this individual and their legal counsel.

Although class actions can effectively illustrate the sheer number of people harmed by the wrongful actions of certain parties and organizations, some potential class members may not find this method to be the most beneficial way of pursuing justice; in many cases, it can lead to injustice for individual class members. In this particular case, Mr. Drescher believes the process could be harmful to some potential class members, especially those who have been most seriously injured.

For that reason, Mr. Drescher sought intervenor status in the proposed class action’s certification hearing. By doing so, he hoped to give voice to the underappreciated and under-represented perspectives of vulnerable sexual abuse survivors.

What is an Intervenor?

In legal proceedings, intervenors play an important role. The Supreme Court of Canada’s recent notice on interventions outlines the Court’s expectations of applicants seeking intervenor status.

All legal cases are, essentially, disputes between appellants and respondents, even if an intervenor participates. The intervenor’s purpose is not to support one side or the other, but rather to advance their own view of a legal issue. Intervenors exist to aid the Court by ensuring that all important perspectives are represented.

Usually, the applicant represents an interest group with a broad representative base. In this case, Mr. Drescher is not the representative of an applicant group, but rather an individual with legitimate concerns regarding certain aspects of the class action. He argues that he can provide a unique perspective on this matter in the interest of the public. The Court agreed.

At Issue in This Case

Mr. Drescher sought intervenor status to voice certain concerns about the methodology of the proposed class action during its certification hearing. His chief concern is related to the opt-out provisions in the class action process and how it can bar survivors of sexual assault from being able to pursue their own action. This is contrary to basic principles of justice and the Limitation Act, which notes that there is no limitation period for survivors of sexual assault.

If a potential class member does not wish to participate in the class action, they are required to opt out. They might do so because they wish to pursue their own individual claim, or for other personal reasons. There is always a deadline for the opt-out, and if the class member does not do so in time, they are forced to be a part of the class action and their right to start their own legal claim is taken away forever.

Opting out of the class means forcing survivors of sexual abuse to come forward even if they are unprepared to do so or do not wish to be named. Mr. Drescher is concerned that this provision either forces survivors of abuse to speak out before they are ready to do so or forces them to join the class because they are not ready to identify themselves as former victims. It took Mr. Drescher decades to be able to come forward and speak about his assaults, which is the normal course for sexual assault survivors who often find it too traumatic to come forward or find it too shameful to speak about their experiences.

Mr. Drescher also voices a concern that many potential class members may not be aware that they are required to opt out in order to be in control of their own individual pursuit of justice. Citing more than 25 years’ experience as counsel for sexual abuse survivors, Russ Howe supported Mr. Drescher’s concerns that many potential class members will be unaware of their options because of circumstances directly related to the abuse they suffered. It is, sadly, common for survivors of childhood sexual abuse to struggle with substance abuse, endure periods of homelessness throughout their lives, and live off the grid because of difficulties relating to people or maintaining healthy relationships.

Russ Howe also used his experience with sexual abuse survivors to expand on Mr. Drescher’s concerns that some potential class members might feel unprepared or unsafe to opt out of the action. Many survivors of sexual abuse spend periods of their life in incarceration. If survivors—particularly male survivors—identify themselves as former victims of childhood sexual abuse within an incarcerated population, the information could make them appear vulnerable and pose a significant risk to their personal safety.

Mr. Drescher’s concerns were further expanded upon by Russ Howe, who cited his clients’ lack of knowledge of their individual rights and the crucial differences between class actions and individual civil claims. Russ Howe believes it is important for survivors of sexual abuse to have control over their claims and the settlements they receive, as the process often helps them find a kind of personal closure and empowerment.

Additionally, Mr. Drescher raised a concern that, historically, class members are awarded settlement amounts that are substantially lower than those awarded to plaintiffs in individual civil claims. Some class actions settle with class members receiving as low as $30,000 each, even if they suffered catastrophic injuries due to the assaults. Especially in cases involving childhood sexual abuse where one victim’s experience may be vastly more traumatizing than another’s, what might be considered a fair settlement for the group might not be fair for the most seriously injured individual members of that group.

Mr. Drescher was also concerned that class actions have a timeline arranged for class members to be able to join the class. If class members do not come forward and join the class action in time due to no fault of their own, then their claim could be barred forever. This is completely unfair, and contrary to the exemption in the Limitation Act.

Reasons for Decision

The Honourable Justice Coval believes that Mr. Drescher’s perspective and evidence will be important additions to the certification hearing that would otherwise go unconsidered. The drawbacks of the opt-out process are important considerations for an issue of public importance.

While Mr. Drescher does not meet all the typical requirements for intervenor status, given the difficult issues raised for sexual abuse survivors and the obstacles they can create for them in litigation, this is an exceptional case wherein his perspective could prove beneficial.

In consideration of the Plaintiff’s arguments, Mr. Drescher was granted intervenor status in the certification hearing, but with certain limitations as to the type and amount of evidence he is entitled to present. His submissions must be limited to concerns regarding the opt-out process and should not mention that class members typically receive lower settlement amounts than individual claimants.

Call Preszler Injury Lawyers

If you attended Vancouver College or St. Thomas More Collegiate and were subjected to abuse, Preszler Injury Lawyers are standing by to listen to you and provide you with legal assistance. It is never too late to speak out about sexual abuse, and there is no statute of limitations on sexual abuse claims in this province.

However, this class action may be certified, which will likely create a limitation period for being able to decide if you would like to pursue your own claim. The only requirement needed to pursue your own claim is to officially opt out of the class action. Once opted out, you can then choose to pursue your individual claim any time you wish, even many years into the future.

Our British Columbia sexual abuse lawyers use a trauma-informed approach with all our prospective clients. Preszler Injury Lawyers offer everyone a free initial consultation and will not collect any legal fees unless we win your case.

To learn more about the options for legal action that might be available to you, contact us online or call 1-800-JUSTICE today.