While individuals with developmental disabilities have made huge strides to reclaim their human rights, the dark chapter of institutionalization remains unresolved because the province refuses to admit the abuses that took place.
By Doreen Nicoll
Published February 24, 2016
Ontario has a history of institutionalizing developmentally disabled individuals that it would like to keep hidden, or at the very least, re-write. From 1876 until 2009 over 50,000 people lived in 16 institutions for the developmentally disabled [PDF].
Orillia was home to the first large institution, which would eventually become known as the Huronia Regional Centre. The centres would be established in small towns and rural communities throughout the province. In March 2009, Huronia Regional Center would be one of the last to close its doors along with Rideau Regional Centre and Southwestern Regional Centre.
Residents often arrived at these facilities as young children. Parents were discouraged from visiting, leaving children in the care of strangers and with the sense they had been abandoned. The facilities provided no private space, with residents sleeping in dormitories and sharing open toilets lined up in rows.
While some training was offered, it was only in the last few decades that formal education was made available. More often than not, residents were not paid for their labour while living in these institutions.
Most disturbing is the fact that residents experienced physical, psychological, emotional, and sexual abuses at the hands of fellow residents, as well as employees of the facilities. With little outside monitoring by parents, the public, authorities or even the provincial government, the abuses continued unchecked.
In 1974, the warehousing of people with developmental disabilities hit its height of 8,000 individuals spread throughout the 16 provincial facilities. It was also at this time that societal attitudes began changing and community living was viewed as a preferable choice, but it would take another 40 years to complete the transition.
Today, developmentally disabled persons have the right to be fully integrated citizens with the ability to participate in community life with services and supports to help them achieve their goals. This includes access to public buildings and areas, schooling, independent living or group homes, employment opportunities, and full participation in their communities.
While individuals with developmental disabilities have made huge strides to reclaim their human rights, the dark chapter of institutionalization remains unresolved because the province refuses to admit abuses took place at these provincially run and funded institutions.
On June 16, 2014, Koskie Minsky LLP initiated lawsuits against the Province of Ontario on behalf of survivors of twelve of the provincially operated residential institutions for persons with developmental disabilities. It is alleged that the Province was negligent in the management and operation of the institutions, resulting in systemic abuse and harm to former residents.
The Ontario Superior Court of Justice certified these actions as a class proceeding on August 20, 2015.
The lawsuit, Clegg v. Province of Ontario, states the Province of Ontario failed to properly care for and protect the people who lived in these institutions. The lawsuit claims the people who lived there were emotionally, physically and psychologically traumatized by their experiences. The Province of Ontario denies all claims.
The proposed members of the class action are all persons alive as of June 16, 2012 who resided at these institutions during the stated time periods:
On November 4, 2015, lawyers for Koskie Minsky and the government reached a settlement. However, this settlement does not mean the lawsuit is finished. On April 25, 2016, the Superior Court of Justice in Toronto will decide if the settlement is fair and reasonable.
Here's what the settlement says:
The government must hold 35.9 million dollars in trust for individuals who lived at these institutions.
In the proposed settlement if you are part of the lawsuit, you could get up to $2,000 if you were harmed or hurt while living in one of these institutions. You could get up to $42,000 if you provide a written statement of how you were harmed or hurt.
Once the settlement is found fair and reasonable, you will need to fill in the required form and send it to a claims office. The claims office decides which applicants are entitled to compensation.
Money received as part of the settlement will not change any social assistance or developmental services and supports that you currently receive from the government of Ontario.
The settlement money will also pay the lawyers. Koskie Minsky are asking for 3.7 million dollars from the settlement for their work on this lawsuit.
There may be money left over after all claims are paid. That money will go back to the government of Ontario.
Giving unclaimed funds back to the government is an unusual step as the cy-près doctrine is usually invoked to allow extra money to be used to promote the interests of members of the class suit. This has the advantage of benefitting the larger population of persons with developmental disabilities rather than returning the funds to the defendant, which could be seen as a windfall for the government of Ontario.
Cy-près is used when it is impossible to compensate individual class members directly. Unclaimed awards, and monies that belong to litigants who have relinquished their rights in order to pursue the defendants individually, are distributed to a third party that may reasonably be expected to benefit some or all members of a class suit.
In other class action settlements, any unclaimed money is awarded to third parties to improve programs and services for the victims, such as developmentally disabled persons and their caregivers.
Returning the unclaimed money to the province smacks of undoing the civil justice that was attained through the settlement especially when the provincial government continues to deny all claims made against it.
According to Human Rights lawyer Eric Letts:
While the settlement will assist the victims that make claims, how far does it really go to correct the past or change the provincial government's practices into the future? An admission, an apology and broad support for societal change are often useful steps towards healing and making sure abuse never happens again in Ontario.
If you know someone who lived at one of these institutions please share this information with them or their support person. More information about Clegg v. Province of Ontario is available [DOC].
If you need legal advice or information, please contact ARCH Disability Law Centre.
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