Class action against feds, Nunavut and N.W.T. to proceed

A Nunavut judge says a class action involving a former teacher convicted of sexually abusing students can go ahead.

In a decision dated Monday, June 15, Justice Paul Bychok said the class action can proceed against the governments of Nunavut and the Northwest Territories and the attorney general of Canada.

The lawsuit is on behalf of at least 50 former students of Maurice Cloughley, the decision states. Between 1967 and 1981, Cloughley taught in several communities in Nunavut and the N.W.T. He was later charged with 22 sexual offences against some of his former students.

Cloughley was sentenced to 10 years in prison in 1996 after pleading guilty to nine charges of sexual abuse. The other 13 charges were stayed.

In Sept. 2008, 37 of Cloughley’s former students filed a lawsuit against the governments of Nunavut and the N.W.T. Then, in Dec. 2016, three of the plaintiffs filed a notice with the court to certify a class civil suit “seeking damages on behalf of all of Mr. Cloughley’s victims or their estates,” the decision states.

Unlike most other jurisdictions, Nunavut does not have class-action lawsuit legislation. To pursue a class action in Nunavut, permission is required through an application to the court.

Bychok heard the application on Feb. 14, 2020, but reserved his decision.

Three issues for consideration

In his judgment, Bychok said there were three issues he had to decide on when considering whether the lawsuit should proceed. The first was whether the plaintiffs had satisfied him that a class action was appropriate for the circumstances of the case.

If the answer to that question was yes, Bychok would then consider the second issue, namely, whether there was a breach of a fiduciary duty owed by the defendants to members of the class. A fiduciary duty is the legal obligation of one party to act in the best interests of the other.

Then, if the answer to the first question was yes, he would consider the third issue, that is, whether there were any special conditions that needed to be included in the certification order.

Lawyers for the Nunavut and N.W.T. governments did not contest the certification of the class action, but objected “to having the question whether the defendants owed the plaintiffs a ‘fiduciary duty’ of care included as a common issue,” the decision states.

To the first question, Bychok said the pleadings “establish a clearly defined class of potential plaintiffs—former students who were sexually abused by Mr. Cloughley.”

Bychok also said he was satisfied that the class-action certification would help plaintiffs in remote communities where there are no resident lawyers to pursue their claim.

“Given the ongoing vulnerability of our youth in our remote communities, class-action litigation may have a beneficial educational impact.… Class-action litigation will certainly permit the court, as well as members of the class, to allocate resources more efficiently than several independent actions,” Bychok wrote.

“The answer to question one, then, is yes.”

To the second question, Bychok said the case raises a “legitimate and arguable question” whether the governments and Nunavut and N.W.T owed the plaintiffs a fiduciary duty of care.

In his decision, Bychok acknowledged the Canadian government’s colonial relationship with Inuit.

“I take judicial notice that Mr. Cloughley arrived here very shortly after the Inuit were forced off the land by the authorities and made to live in artificial and newly created remote settlements…. It is a fact that the authorities undertook to and did establish and maintain localized health care, housing, schools and law and order in these newly created settlements. Henceforth, government exercised colonial power over the Inuit and enforced it, in part, by armed authority. Mr. Cloughley began teaching in Nunavut in August 1967,” Bychok wrote.

“The authorities placed Mr. Cloughley in a position of real authority and power over his young Inuit charges. These Inuit children were extremely vulnerable by the very essence and structure of this student-teacher relationship. Mr. Cloughley abused his authority and power over these children.”

Bychok concluded, then, that a fiduciary relationship between the governments and the plaintiffs was present in this case.

To the third question, Bychok said that the class-action lawsuit notice should be posted in homeless shelters in Ottawa, Montreal, Winnipeg and Edmonton.

“At the hearing in February, I raised the issue of the many Inuit who find themselves homeless in southern Canada. There are many reasons why people find themselves homeless, including mental health issues and ongoing trauma from childhood sexual abuse. I am concerned lest any of Mr. Cloughley’s victims find themselves in that circumstance,” Bychok wrote.

RPC1 Et Al. v. the Attorney… by NunatsiaqNews on Scribd