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Crown delay costs taxpayers $125K, lawyer says

|Written By Kendyl Sebesta

Correction: This story incorrectly identified Crown lawyers John Kelly and William MacLarkey as the Crowns involved in the months leading up to the Seed v. Ontario case that recently held the government liable for $125,000 in costs. Kelly and MacLarkey first became involved in the file on March 9, 2012, approximately one month before they argued the certification motion, and did not stall the certification motion for five months. MacLarkey and Kelly also were not involved in any offer to settle. MacLarkey and Kelly were not the counsel who argued the costs issue. Kirk Baert, who represented the plaintiffs in the case, did not suggest Kelly and MacLarkey were involved at that time. Law Times regrets the error.

Taxpayers are on the hook for more than $125,000 in costs after the province delayed delivering its position in a class action involving a Brantford, Ont.-area school for the visually impaired, a lawyer for the plaintiffs says.

‘The defendant was utterly unable to decide as to whether or not it would oppose certification, and if so, to provide reasons as to why,’ says Kirk Baert.

Kirk Baert, a partner at Koskie Minsky LLP who represents the plaintiffs in Seed v. Ontario, claims Crown lawyers John Kelly and William MacLarkey stalled a motion for certification for five months before setting out their position in their legal filings.

Baert says the motion should have taken a day to complete.

“The defendant was utterly unable to decide as to whether or not it would oppose certification, and if so, to provide reasons as to why,” says Baert.

“So a motion that should have proceeded on consent didn’t and now we have more than $125,000 to spend courtesy of the taxpayers.”

According to Superior Court Justice Carolyn Horkins’ cost order in Seed, Baert had asked Crown counsel to consent to certification within four days in November 2011.

During that time, Baert also wrote to Crown counsel and made an offer to settle. But Crown counsel rejected the offer and didn’t provide its factum and decision until March 2012.

“There is nothing wrong with opposing certification, but the defendant is expected to say they oppose it,” says Baert.

“This shouldn’t have been a challenging request to get an answer to. Instead, we wasted a lot of time just chasing them down and now the taxpayers are paying for it.”

Horkins made the cost award of more than $125,000 against the province earlier this month. She cited the Crown’s actions as a factor in it.

“Given the way the defendant approached this certification motion, it is not fair for the defendant to now say that the time spent on the certification motion was excessive,” wrote Horkins in her cost order.

“For months, the defendant left the plaintiffs guessing as to why it would not consent to certification.”

Kelly and MacLarkey had argued the requested costs were excessive because they were beyond the amount in Slark v. Ontario. They also relied on Slark to oppose the earlier certification in March.

Slark was the first of a series of systemic abuse cases. Ontario unsuccessfully challenged certification and the court denied leave to appeal it. The court awarded roughly $100,000 in fees against the province.

Ministry of the Attorney General spokesperson Marya Winter declined to comment on Baert’s complaints about the Crown’s actions, saying in an e-mail to Law Times that “as this matter remains before the court, it would be inappropriate to comment.”

Kelly and MacLarkey couldn’t be reached to explain their version of events.

According to the province’s factum filed in Seed, the plaintiff had brought forward no facts to show the Crown had acted in its own interests and against those of the school’s students at the time of the alleged abuse.

But this isn’t the first time the Crown has been accused of wasting taxpayer money.

In a case before the Superior Court of Justice last week in Toronto, lawyers for Trillium Power Wind Corp. also accused the province of delaying production of its statement of defence and only advancing procedural arguments and thereby wasting both time and public money. The matter arose after counsel for the government in the matter sought to dismiss a legal action filed by the company after the province cancelled all offshore wind projects in February 2011.

Horkins certified Seed as a class action in April 2012. The case involves allegations by Robert Seed, a former student who attended the W. Ross MacDonald School for the visually impaired from 1954 to 1965.

Seed alleged the Ontario government failed to operate the school or supervise its staff in a way that ensured the safety and well-being of its students. Seed and other members involved in the class action allege physical, mental, and sexual abused by staff and others while attending the school.

According to the allegations in Seed, students had objects thrown at them, were force-fed if they didn’t finish their meals, were called names, were sexually abused by staff and other students, and beaten. Their visual disabilities were also used against them.

“Several of the house parents whipped the students in the shower rooms with towels. They would snap the towels against the students so hard that it would leave welts,” wrote Horkins in a description of the evidence put forth.

“These same house parents used to sneak up on the students and hit their legs so hard that it caused the students to collapse on the floor in pain. Students eventually started doing this to each other and it became a game to see who would collapse. The house parents promoted this kind of behaviour. On one occasion, a number of students took turns hitting another student in the leg and this student ended up in the hospital.”

None of the allegations have been proven in court.

The class is seeking $200 million in damages for alleged events from 1951 to the present.

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