Some former residents who were expecting a $42,000 payout are in for ‘an awful surprise’ Marco Chown Oved
The Toronto Star, Aug. 14, 2015
Almost 400 people with developmental disabilities who were expecting payouts of tens of thousands of dollars from a legal settlement with the government will only receive a maximum of $2,000, though they haven’t been informed and don’t have any recourse to appeal, the Star has learned.
After suffering physical and sexual abuse at the Huronia Regional Centre, former residents settled a class action lawsuit with the government for $35 million in 2013. More than 1,700 people made claims for a part of the settlement, divided into the less serious section A, which have their claims capped at $2,000, and the more severe section B, which are awarded up to $42,000.
But according to the litigation guardians, appointed to advise the disabled plaintiffs, 394 (almost a quarter of the 1,705 accepted claims) have been reclassified from section B to section A, reducing their potential payout by $40,000. And many of those who were reclassified are non-verbal and least able to make their case.
“I don’t think it’s fair that people who cannot speak for themselves should get only $2,000. I don’t think that’s right and I don’t think they were fully supported,” said Marie Slark, a former Huronia resident and one of the representative plaintiffs on the class action case.
According to the terms of the settlement, only those 53 people whose claims were rejected outright were informed and have the right to appeal. Anyone whose claim was accepted, even in part, won’t be informed if they were downgraded, nor can they appeal.
“It will be an awful surprise,” said Marilyn Dolmage, the litigation guardian for Slark. “They won’t know they’ve been downgraded until the cheque comes.”
In May, Marilyn and her husband, Jim, say they received numbers from Crawford Class Action Services, which is administering the settlement, showing that 404 claims originally categorized as section B had been reclassified as section A.
They say they wrote to former Supreme Court justice Ian Binnie, who is overseeing the settlement process, to express their dismay, and say Binnie and Crawford then reviewed a number of files, bringing the number of downgrades down to 394.
“We’ve been lying awake at night, thinking about all of these people, the amazing survivors and the families who have documented horrible things to try and bring justice,” said Marilyn Dolmage, who penned a letter to all the claimants this week to inform them of the change.
Jody Brown, an associate with the firm Koskie Minsky, which represents the claimants, disputes that any claims were “downgraded.”
He explained that section A claims simply required the claimant to check a box, while section B required written statements and extra documentation.
When the claims were received, they were sorted into two piles and any form with anything written in the area for section B was put in that pile.
Later, when the claims were assessed, it was discovered that some section B forms didn’t qualify.
“Each claim has been assessed by the administrator (Crawford) considering the full context of the claim and whether it fits within the parameters of the settlement,” Brown wrote in an email.
The Star subsequently received an email from Brown’s firm, stating, “as you know, the members of this class are a very vulnerable group. We do not want them to be misinformed by an article in your paper which makes it appear that the settlement is not being adhered to in violation of an order of a judge of the Ontario Superior Court of Justice.”
The Dolmages say they were notified in April that neglect alone isn’t serious enough to be considered for section B and they believe that caused the downgrades, leaving only those who claimed physical or sexual assault to qualify for the bigger payouts.
“Everything about the case was about neglect. The whole case was certified on the systemic issues: underfunding, understaffing and overcrowding leading to neglect,” said Marilyn Dolmage.
“We were preparing to have a trial that was mostly about neglect but then we ended up with a settlement that wasn’t.”
Binnie says each claim was evaluated on its merits and says there’s no blanket interpretation of whether neglect can be considered for section B.
“‘Neglect’ has to be assessed in context,” Binnie wrote in an email.
“If neglect exposed a patient to harm, for example, and the harm qualified for a section B payment, the claim received a section B assessment.”