Wagners Serious Injury Lawyer Blog

The claims involving the former residents of the Nova Scotia Home for Colored Children are, after 10 years, starting to be noticed by the media.

A series of articles were published in Frank Magazine in early 2011 dealing with the litigation, the allegations and the lengthy time that this litigation has been before the Courts.

Bethany Horne produced a documentary called "The Colored Home" for CBC Radio's Maritime Magazine which aired on November 29, 2011. It was later replayed on the CBC Radio show In the Field on January 17, 2012.

There have also been a number of articles published in the Chronicle Herald during the week of February 13th relating to the abuse which occurred at the NSHCC. Followup articles have also been published.

These articles and documentaries are giving a voice to the victims who were abused while they were residents at the NSHCC.

Now, after many years of struggle in pursuing the individual claims through the court system, a new chapter in the NSHCC litigation is about to unfold.

On Friday, February 17, 2012, the law firm of Wagners filed its Notice of Motion and supporting affidavits to have its proposed class proceeding certified as a class action pursuant to Nova Scotia's Class Proceedings Act. The filing of these documents represents a significant milestone for the victims of abuse at the NSHCC after many years of ongoing litigation in their individual claims. The filing of the certification motion documents is the first step towards bringing closure for these victims of abuse.

One of the individuals who signed an affidavit in support of the certification motion is Jane Earle, former executive director of the NSHCC. Ms. Earle was interviewed for CBC Radio's Mainstreet on February 15, 2012.

The Plaintiffs' Certification motion will be heard in the Nova Scotia Supreme Court at 1815 Upper Water Street, Halifax, before the Honourable Justice Arthur LeBlanc during the week of October 22, 2012.

Two institutions. Both opened in the 1920s. Both funded by the Province. Both with poor conditions and unqualified staff. And both with allegations of serious abuse perpetrated by staff members. But the similarities end there.

When one juxtaposes the situations between the two institutions, the differences in how the allegations have been handled are startling and readily apparent.

In relation to Shelburne, after a few victims came forward, the Province quickly decided to fund an investigation into the abuse. The investigation revealed that residents were abused and the Province quickly agreed to compensate the victims, approximately 5 years after the original complaint was brought with the RCMP.

In relation to the NSHCC, no funds for an investigation were provided, no inquires into the merits of the abuse claims were made and no compensation has ever been provided.

Rather, unlike the Shelburne situation, the sole focal point of the Defendants in the NSHCC claims were to repeatedly apply to the Court to deny the claims on the basis that the victims should have brought their actions sooner. Not to dispute the claims but to use Nova Scotia's antiquated limitations laws to stop the claims. In addition, the abuse victims have had to undergo emotionally painful discovery examinations and answer questions of an invasive nature.

There is another difference between the NSHCC and Shelburne which can be distinguished. The majority of the Shelburne victims were white. The vast majority of the Colored Home victims are black.

The stark contrast between the way that the allegations of abuse at the Nova Scotia Home for Colored Children and Shelburne have been handled lead to serious questions.
Why did the Province fund an investigation for victims in Shelburne but not for the victims of the NSHCC?

Why were people charged in relation to abuse at Shelburne but not in relation to the NSHCC?

What makes the Colored Home abuse victims any different from the Shelburne abuse victims?

Why did the Province agree to compensate Shelburne victims 5 year after the complaint was brought while it continues to deny justice to Colored Home victims almost 10 years after the complaints were brought?

The victims of abuse at the NSHCC believe it is time for the Province to answer these questions.

It is now closing in on 10 years since Wagners commenced litigation against the Nova Scotia Home for Colored Children, the Province of Nova Scotia and various Children's Aid Societies. The Home was established in 1917 and served primarily disadvantaged and unwanted children of African-Canadian descent.

The claims we filed back in 2003 and 2004 were individual lawsuits on behalf of more than 60 former residents of the Home, or NSHCC. From the time that we filed those initial claims up to and continuing today, the Defendants have continued to force our clients to go through obtrusive examinations, submit to providing answers to interrogatories and demands for particulars, motions for summary judgment and other procedures that have only served to delay our efforts to give our clients their day in court.

One must ask themselves why the Defendants are subjecting these victims of abuse to the lengthy and costly litigation process. What makes this case different?

Similar institutional abuse cases, such as Shelburne, were resolved only 4 or 5 years after the first allegations of abuse came to light. A number of victims of the pedophile, Cesar Lalo, have had their cases heard in Court. However the victims of abuse suffered in the NSHCC continue to be embroiled in litigation nearly 10 years after their claims first came to light.

When reviewing the Shelburne situation, which came to light in 1991, it was approximately one year after the first allegations came to the public forefront that the RCMP investigated and, in fact, laid charges against a former staff member. Compare that to the situation involving the NSHCC when, after the initial claims were filed, the Defendants filed documents which required the NSHCC victims to respond to extensive written questions. Even now, after 10 years has transpired since the first NSHCC claims were filed, there has never been an investigation into the abuse allegations, much less a criminal charge being laid. All these allegations, very strong and very powerful allegations of systemic sexual abuse of the most horrific variety is well documented in the court record and no police department, no police agency, no government agency, nobody in the Department of Community Services, no welfare protection people--did anything, or are doing anything to investigate the case. And you have to ask yourself, why?

In 1993, the Shelburne staff member who was charged was found guilty and was convicted of indecent assault and gross indecency. Within 2-3 years of the first allegations of abuse at Shelburne, a pedophile was convicted. Yet in the NSHCC cases, within 2-3 years, the Defendants chose to contest the claims.

In 1995, more former residents of Shelburne started to come forward with allegations of abuse. Immediately, the Province announced that they would investigate these allegations and, if proven, a method would be put in place to provide justice to those who were wronged. However, the NSHCC victims continue to be mired in litigation, with the Defendants' using all the litigation tools to frustrate the fair and final determination of the truth.

Later in 1995 the investigative report dealing with the allegations of abuse at Shelburne was released. This Provincially funded report found approximately 90 allegations of abuse and the blame was placed with the Government for inadequate practices including funding and hiring. Shortly thereafter, the Province commenced discussions with the lawyers for the victims of the abuse at Shelburne to attempt to redress the wrongdoings. All this occurred within 5 years of the first allegations being made. In the NSHCC cases, the claimants were being subjected to intrusive, invasive and lengthy discovery examinations after 5 years. Why did the Province take the allegations of abuse in Shelburne much more seriously and with more compassion than it has done for the victims of abuse at the NSHCC?

In 1996, 5 years after the first Shelburne allegations became public, a compensation package was put in place for the victims. With the NSHCC, the Defendants continue to use the litigation tools to deny access to justice.

Car accident victims often become injured as a result of the negligence of a driver who cannot be identified. Fortunately, Nova Scotia, like New Brunswick and PEI, has an insurance regime which grants compensation to such injured car accident victims. When a person is injured as a result of the negligence of an unidentified driver, the person's "Section D" insurance policy becomes engaged.

The relevant insurance provision reads:

The insurer agrees to pay all sums that: (a) A person insured under this policy is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injuries resulting from an accident involving an automobile.

The typical scenario under which this insurance provision is triggered is a "hit and run", where the victim is injured by a driver who then drives away and cannot later be identified. These situations are relatively straight-forward.

A more complex scenario occurs when a victim is injured as a result of a foreign object lying loose on a roadway and flying into the victim's vehicle (usually being projected from the tires of another vehicle). These scenarios are usually highly contested, with insurance companies arguing that the mere existence of the foreign object on the roadway is no evidence of negligence of an unidentified driver.

In such situations, the case law maintains that the car accident victim has an onus to establish facts from which the Court may reasonably draw the inference that the negligence of the driver of an unidentified vehicle was the probable cause of foreign object lying loose on the highway. The burden of proof is whether it is more likely than not that the driver of an unidentified vehicle's negligence constituted the cause of the plaintiff's injury.

As is the case in every claim involving debris lying on a roadway, the procurement of direct evidence of negligence is impossible. In circumstances such as this, plaintiffs must prove their claim using circumstantial evidence. The principles are well-established for assessing liability where the evidence is circumstantial.

In the oft-cited decision of the Supreme Court of Canada in Montreal Tramways Co. v. Léveillé, [1933] S.C.R. 456 (S.C.C.), the Court considered the role circumstantial evidence plays in meeting the burden of proof and stated at para. 35:

The general principle in accordance with which in cases like the present the sufficiency of the evidence is to be determined was stated by Lord Chancellor Loreburn in Richard Evans & Co., Limited v. Astley, [1911] A.C. 678 as follows:

It is, of course, impossible to lay down in words any scale or standard by which you can measure the degree of proof which will suffice to support a particular conclusion of fact. The applicant must prove his case. This does not mean that he must demonstrate his case. If the more probable conclusion is that for which he contends, and there is anything pointing to it, then there is evidence for a court to act upon. Any conclusion short of certainty may be miscalled conjecture or surmise but courts, like individuals, habitually act upon a balance of probabilities.

Once the Plaintiff has established that it likely came from the undercarriage of a motor vehicle, the fact that the car part fell off the vehicle and onto the highway will be sufficient to justify the a prima facie case of negligence against an "unidentified driver". A similar ruling was made by the British Columbia Court of Appeal in Lee v. Insurance Corp. of British Columbia, 1986 CarswellBC 111.

The deceased driver in Lee, supra, was driving on a highway when witnesses say he suddenly plunged over an embankment. The cause of the accident was unknown. The initial theory was that the deceased had fallen asleep at the wheel. Days later, police discovered a foreign car part (a detached trailer hitch) on the floor of the deceased's car.

Based on the presence of this foreign car part in the deceased's car, the family of the deceased surmised "that the wheels of the eastbound semi-trailer truck had thrown up the trailer hitch from the road surface and that this projectile had penetrated the windshield striking Kelly in the face." They brought a claim against the Insurance Corporation of British Columbia and argued that the accident resulted from the negligence of an "unidentified driver".

Insurance company denied the claim. There remained alternate explanations for the cause of the accident: the deceased could have fallen asleep, he could have simply lost control of his vehicle, etc. Furthermore, the insurance company argued that even if it was accepted that the car part likely caused the accident, there was no evidence of negligence on the part of an unidentified driver. It was argued that the car part could have fallen on the road due to vandalism, for example. This argument was rejected by the Court of Appeal.

Discussing whether the existence of the foreign car part in the deceased's car (likely previously on the road) established a prima facie case of negligence, the Court stated at para. 11:

In my view, in the absence of an explanation, the fact of its falling off the vehicle and onto the roadway is sufficient to justify the conclusion that most probably the driver was negligent. That does not happen " 'if those who have the management use proper care' " and " 'it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care'

A personal injury lawyer experienced in these complex fact scenarios is best able to advance a claim for damages on behalf of injured victims. The lawyers at Wagners routinely achieve successful result for victims of car accident involving an "unidentified driver".

Earlier this summer, the Court of Nova Scotia released a decision in Hayward v. Young. The case stemmed from an April 5, 2003 car accident. The plaintiff was driving in Halifax when he was without warning T-boned at the driver's side door by another vehicle. He got out of the vehicle with some difficulty as the door was crushed in and the window shattered.

The collision caused him to strike his head against the window and he was subsequently disoriented and nauseous. In the days that followed, the accident victim became stiff and sore. He was going through a significant amount of pain and had difficulty moving his neck. The neck pain later developed into persistent migraine headaches.

In 2006, he underwent an MRI of the brain, which revealed some residual scarring to the inferior frontal lobe.

The Plaintiff commenced a lawsuit for the car accident against the driver who caused the accident. He asked for compensation for the physical injuries and also alleged that he had suffered a brain injury as a result of the car accident.

At trial, the defendant was represented by his insurance company. He admitted being at fault for the accident but denied responsibility for a brain injury.

As a teenager, the Plaintiff was assaulted on a sidewalk in downtown Halifax. He remained unconscious for a half hour. Medical records reveal that four days later he still could not remember the event. The insurance company's lawyers argued that if the Plaintiff had sustained a traumatic brain injury, it was as a result of the assault many years earlier, and not the car accident.

The Plaintiff himself testified that following the accident he had memory problems and found himself to be moody, irritable, short of temper, and chronically tired. He also said that he had difficulty meeting performing work tasks and would miss project time lines.
In determining the test to be used in assessing causation, the Judge cited the following words from the Supreme Court of Canada:

Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates. It suffices at this juncture to simply assert the general principles that emerge from the cases.

First, the basic test for determining causation remains the "but for" test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that "but for" the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute.

This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para. 14, per Major J., "[t]he general, but not conclusive, test for causation is the 'but for' test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant". Similarly, as I noted in Blackwater v. Plint, at para. 78, "[t]he rules of causation consider generally whether 'but for' the defendant's acts, the plaintiff's damages would have been incurred on a balance of probabilities."

The "but for" test recognizes that compensation for negligent conduct should only be made "where a substantial connection between the injury and the defendant's conduct" is present. It ensures that a defendant will not be held liable for the plaintiff's injuries where they "may very well be due to factors unconnected to the defendant and not the fault of anyone": Snell v. Farrell, at p. 327, per Sopinka J.

Various medical doctors testified on the nature of the plaintiff's injuries and their views on causation. After hearing the expert opinions, the court ultimately concluded that the plaintiff had not proven that "but for" the accident he would have no brain injury. The Court found that the prior assault was deemed to be the most likely explanation for the scar tissue shown in his 2006 MRI.

However, the court did accept that Mr. Hayward suffered soft tissue injuries that developed into a chronic pain problem as a result of the accident. The Court awarded $120,000 for pain and suffering. In addition, the Court awarded the Plaintiff all his out-of-pocket expenses, $10,000 for future care, plus interest on all the awards.

Car accidents, slip and falls and medical errors are daily occurrences in Nova Scotia, New Brunswick and P.E.I. They are often the result of someone's negligence and the victims of such incidents will usually suffer injuries of some sort.

Tragically some will suffer injuries of a catastrophic nature. Some of these severe injuries can include brain damage, spinal cord injuries, quadriplegia, and birthing damage like cerebral palsy.

Victims who suffer such injuries as a result of another's negligence are, under law, entitled to compensation for the "pain and suffering" they will endure over the course of their lifetime. Such awards are referred to as "non-pecuniary damages" and are intended to compensate the victim for the loss of enjoyment of life he or she will go through as a result of the debilitating injury.

The monetary evaluation of a victim's pain and suffering cannot be done using a calculator. The evaluation is a philosophical one. While understanding that no amount of money will adequately compensate for a catastrophic, debilitating injury, judges and juries are nonetheless tasked with making the assessment. Logic says that the greater a person's suffering, the greater the damages. However, this is not the case.

In 1978, the Supreme Court of Canada in the seminal case of Andrews v. Grand & Toy adopted as the appropriate award in the case of a young adult quadriplegic, the amount of $100,000 in general damages. The Court stated that this should be regarded as an upper limit of non-pecuniary loss in catastrophic cases (later, in In Lindal v. Lindal, the Supreme Court of Canada confirmed that this cap amount should be allowed to grow with inflation). Presently, the cap is a little over $300,000.

On the surface, this may sound like a lot of money. However, for a young man who is rendered paralyzed in a car accident and who has to spend the rest of his life in a wheelchair, or a young girl who suffers brain damages as a result of a doctor's negligence, this amount is small consolation.

The imposed upper limit has been the subject of much criticism from the members of the public, lawyers and various lower courts, particularly in the context of jury awards. It is felt by many that it is time for the Supreme Court of Canada to revisit the "upper limit".

The 2006 case of Lee v. Dawson presented a good opportunity. The plaintiff in that case was a 17 year old boy who was injured in a car accident as a result of another driver's negligence. As a result, he sustained permanent brain injury which caused severe depression, a permanently impaired psychological growth and a facial disfigurement. After hearing all of the evidence, a jury of his peers awarded him $2 million dollars for his pain and suffering. This was reduced by the judge to the "upper limit". The boy appealed and advanced the following arguments:

(i) The language used to describe the rough upper limit in the trilogy referred to the rough upper limit not as a strict rule of law, but as a guideline, the purpose of which was to set a "rough upper parameter" on non-pecuniary loss;

(ii) Time and judicial experience with the rough upper limit have demonstrated that it has been converted into a strict rule of law, which is a role that ought to have been left to the legislature. The fact that the guideline has been converted into a strict rule of law is demonstrated by the fact that since the trilogy, no court has awarded or upheld a non-pecuniary award that exceeds the guideline amount;

(iii) Twenty-five years have passed since the trilogy set out the upper limit. The policy reasons that justified its adoption no longer exist, and the continued imposition of the rough upper limit is not justified;

(iv) In the trilogy, the Supreme Court noted that the possibility of having an extravagant claim was higher with respect to non-pecuniary damages because of the difficulties with quantification of the injuries for which non-pecuniary damages compensate. In the plaintiff's submission, difficulty in quantification does not relieve the court of its obligation to determine the issue;

(v) In the trilogy, the Supreme Court was concerned that non-pecuniary damages might be awarded on the basis of improper considerations such as sympathy for the plaintiff, a desire to punish the defendant, or a perception of the defendant's "deep pockets". The plaintiff submits that a solution that is more rationally connected to this potential problem than an upper limit is a jury instruction that warns of the impropriety of these considerations;

(vi) The Supreme Court in the trilogy expressed concern that non-pecuniary awards were increasing but that conclusion was not arrived at on the basis of any empirical evidence. Subsequent studies have demonstrated that the notion of sky-rocketing non-pecuniary awards is a false perception;

(vii) A further policy consideration that was contemplated in the trilogy was that pecuniary awards provide the plaintiff with full compensation, and non-pecuniary awards should, therefore, be modest. The plaintiff argues that that conclusion assumes perfect compensation with respect to other heads of damage, and ignores other costs that might impair the ability of pecuniary awards to provide perfect compensation. Additionally, each head of damages is intended to address a specific loss, and non-pecuniary losses are not unique in this regard. The amount of non-pecuniary loss that is suffered is not contingent on the pecuniary losses the plaintiff has sustained;

(viii) In the trilogy, the Supreme Court was concerned with the high social impact of high non-pecuniary awards. It highlighted increased insurance premiums as an example. The plaintiff submits that again, the Court made an assumption in the absence of evidence capable of supporting it;

(ix) The rough upper limit disregards juries, and the importance of juries outweighs any hypothetical benefits that the guideline might bestow. The plaintiff argues that the jury is the only trier of fact capable of keeping up with the rapid pace of social, economic and technological change in our society. The imposition of the rough upper limit precludes juries from addressing these questions, with the result that the values of the community, as represented by the jury, are ignored. Moreover, the limit forces this Court to apply different standards to low jury awards and high jury awards. When reviewing a low award, the Court of Appeal applies the palpable or overriding error standard, on the assumption there is some evidentiary basis for the low award whereas a high award is reviewed on the comparative approach, thus ignoring the deference which ought to be shown to the factual findings of juries;

The Court of Appeal found these arguments compelling but stated that they were not in a position to overturn the upper limit imposed by the Supreme Court of Canada. When the accident victim asked for his case to be heard by the Supreme Court of Canada, he was refused.

It is difficult to reconcile the deference Judges and Appellate Courts must give to a jury's decision with a rule that automatically replaces their award if it's deemed too high. This serves to undercut the basic value of the jury.

What good is a body that supposedly uniquely qualified to assess the damages suffered by an injured victim (because they are members of the victim's community) when their award is subsequently reviewed and modified by judges (who are usually not members of that community)?

The lawyers at Wagners have seen first hand the prejudice caused by imposing an upper limit the damages that can be awarded to a severely accident victim. It is believed that with time, progress will be made and the law modified such that it can be better reflective of community values. In today's society, with rising athlete salaries and CEO bonuses, the community conscious (reflective in a jury award) would award a far greater sum of money than $300,000 for a young disabled victim of a tragic accident. It is time for the Courts to appreciate this change in the community conscious and get ride of, or raise, the upper limit on general damages.

An increasing number of human interactions are becoming criminalized. There are a variety of unintentional acts and omissions which have, over the past several decades, joined the category of crimes. Allegations of negligent conduct in civil cases are more and more commonly formulated in language that approximates the wording of an offence-creating Criminal Code provision. Some insurance companies are trying to use an exception to coverage commonly called the "criminal act" exclusion to deny coverage to persons sued for negligent conduct, where that conduct "approximates" a crime.

An example of this is the recent New Brunswick case of Donovan v. Optimum Insurance Company Inc. The facts are tragic. Brandon Donovan hosted a party at his parents' house while they were away on vacation. During the party, a guest was accidentally shot and killed. A claim was brought against Brandon and his parents. Their insurance company refused to insure them.

The New Brunswick Court of Appeal found against the insurance company. It reasoned that the company contractually undertook to pay all sums which the homeowner became legally liable to pay as compensatory damages because of unintentional bodily injury arising out of the insured's "personal actions". Both intentional and unintentional actions were covered, so long as any resulting bodily injury was not intended. This extended to the homeowner's negligent use of a firearm so long as he did not intend to cause any such injury (which it was found he did not).

Accidents happen. Sometimes those accidents stem from negligence and sometimes a person can be charged with a crime as a result of the negligence. From a policy perspective, as it is now common that allegations of negligence will closely resemble the particulars of misconduct typically provided in a charge of criminal negligence, Courts should be disinclined to allow insurance companies to deny a personal injury claim defence solely on the basis of similarity between the plaintiff's claim and a Criminal Code provision.

Link to case:
http://www.canlii.org/en/nb/nbca/doc/2009/2009nbca6/2009nbca6.html