The Canadian Lawyer
Issue Date: January 2010
Written by Richard Foot
Practising law can bring weird and unwanted surprises. Even so, John McKiggan never imagined he might have a day like the one that unfolded on Oct. 1, 2009.
Two months earlier McKiggan — a partner in the small Halifax law firm Arnold Pizzo McKiggan — had secured an extraordinary, $15-million settlement in the class action lawsuit that he and his client, representative plaintiff Ron Martin, had filed against the Roman Catholic Diocese of Antigonish.
There had been weeks of difficult bargaining, yet the church had taken the rare step of accepting responsibility for the sins of its past and agreeing to compensate hundreds of men allegedly abused as boys by priests in northern Nova Scotia over the past six decades.
The driving force behind the settlement was Bishop Raymond Lahey, the 69-year-old, cherub-faced prelate whose decision to make peace with victims was a radical departure from the stance of his predecessor, who for years had either brushed aside sex abuse claims or vowed to fight them in court. “We want to do the right thing,” said Lahey last summer, sitting next to Martin at a news conference where the settlement was announced. “I want to formally apologize to every victim. . . . I want them to know how sorry we are, how wrong this abuse was, and how we are now attempting to right those wrongs.”
Lahey became the talk of the province. Despite the enormous financial burden now facing his diocese — and the criticism from some church members that the class action settlement would bankrupt their parishes — Lahey was hailed in the Nova Scotia media as a “visionary” Catholic leader, a man of refreshing candour and moral courage.
The class action and the settlement were certified the following month by the Nova Scotia Supreme Court, and McKiggan left the court hearing in a celebratory mood, confident the deal would proceed smoothly, and happy to have played a role in engineering a measure of justice for Martin and other victims — with the support of an honest bishop.
Two weeks after the certification hearing, McKiggan learned from news reports that Lahey had abruptly and mysteriously resigned his post “for personal reasons.” McKiggan assumed, as many others did, that the bishop had been pressured to quit by the Vatican, or by powerful lay members of the diocese, unhappy that he had committed millions of dollars in church assets to abuse survivors without so much as a fight. “I thought he’d been pushed out,” he says.
Five days later, on the afternoon of Oct. 1, McKiggan was sitting in his office in downtown Halifax when the phones began ringing off the hook. First to call was a reporter from the CBC, buzzing McKiggan on his cellphone, but it was a bad connection and the reporter said he would try again. Before they could reconnect, McKiggan got a frantic call from his client Martin, from the hairdressing salon he owns in Sydney, N.S. “Oh my God John, there’s reporters and TV cameras outside my shop,” Martin said over the line. “The bishop’s just been charged with possession of child pornography.”
“What?” replied McKiggan, as a CTV reporter walked into the reception area of his law office. McKiggan hung up and called the lawyer for the diocese, who confirmed that Lahey had been charged, several days earlier, with possession and importation of child pornography. Airport customs officers had pulled Lahey aside in Ottawa, as he was returning from a foreign vacation, and found images of boys engaged in sex acts on his laptop computer. “I was stunned,” says McKiggan. “I mean, this man, who apologized and said sex abuse of any kind is wrong, is himself now charged with horrible crimes involving children? That shocked me.”
Not only was the key figure behind the church’s settlement agreement now facing criminal charges, the deal itself was soon under attack from a law firm in Ontario and a client — one of the diocese’s alleged victims — who publicly derided the settlement as a legally flawed deal and sellout to the church. If a single class member opted out of the lawsuit, the diocese could walk away from the deal. What had looked in September like a $15-million, court-approved fait accompli, was now not only a source of controversy, but was in serious jeopardy of falling apart.
John McKiggan first made a name for himself representing victims of childhood abuse in the mid-1990s, when he filed the country’s first residential school class action, Bernard v. Canada, against the Crown. The case sought compensation for hundreds of former residents of the Shubenacadie Indian Residential School in Nova Scotia. McKiggan later joined the steering committee of the national residential schools class action, Baxter v. Canada, which was the basis of Ottawa’s historic 2005 decision to compensate more than 70,000 former aboriginal students out of a $1.9-billion fund — the largest class action settlement in the country’s history.
While his residential schools work was underway, McKiggan was contacted by Martin. His brother David had committed suicide in 2002, and left a note behind accusing a retired Cape Breton priest, Allan A. MacDonald, of abusing him as a child. Although Martin had never discussed the past with his brother, he had also been abused by MacDonald. The suicide convinced Martin to go to the police. An investigation ensued, and the old priest was charged with 27 sex crimes, but the trial was delayed for years when the Diocese of Antigonish moved MacDonald into a nursing home and argued he was too sick to appear in court. He eventually died before his trial.
Denied the chance to see justice done through the criminal system, Martin and his family approached McKiggan to discuss the possibility of a civil claim against the diocese. “They had no intention of suing, it wasn’t even on their radar,” says McKiggan. “If MacDonald had gone to trial in the criminal courts, that would have been the end of it. That would have satisfied Martin. But the family felt cheated, because there was no one to be held accountable for what was going on here. So in 2004, he and I filed a claim for compensation on his behalf.”
That lawsuit prompted at least 20 other men, identified in the police investigation as childhood victims of MacDonald, to ask McKiggan to file claims for them as well. As he read through the voluminous police files on MacDonald — and a handful of other Cape Breton priests who had earlier been convicted of sex crimes against children — McKiggan also realized there were dozens of other survivors in the diocese, many of whom had told police they would never testify against the church in open court. “Many were from small, strongly Catholic communities in Cape Breton and they didn’t want their family, their neighbours, and co-workers to know that they had been raped,” he says.
Talks with the church to resolve Martin’s lawsuit were not going well. As it became apparent that any civil claims against the diocese were eventually heading to court, Martin wondered what could be done for the dozens of victims who either wanted no part of the court process, or were willing to sue but might never be compensated because of the chance that Martin’s lawsuit, along with other early claims, might bankrupt the diocese.
“Ron remains a strong Catholic,” says McKiggan, “and for him this has always been about not just his own quest for justice, but also about his church. He takes the view, very strongly, that the problems the Catholic church is having retaining its members, and the scandal-plagued brush that all priests are now tainted with, stems from the fact that the church has never acknowledged its responsibility to survivors. Ron feels very strongly that in order to renew itself, the church needs to acknowledge that, by compensating and apologizing to all its victims. It certainly would have been easier to pursue his own claim, get a judgment, and move on.”
Instead, inspired by the residential-schools claims McKiggan had quarterbacked, Martin asked him to file a class action on behalf of all survivors. The claim was issued in the summer of 2008, and the diocese did not react charitably. Lahey responded with an affidavit vowing to aggressively oppose the action. Both sides prepared for a difficult negotiation. McKiggan hired as co-counsel his friend Russell Raikes, a partner in the London, Ont. firm Cohen Highley LLP. Like McKiggan, Raikes was an experienced class action lawyer and Indian residential-schools claims pioneer.
The diocese was represented by Bruce MacIntosh, a tough-as-nails litigator and partner in the New Glasgow, N.S., firm MacIntosh MacDonnell and MacDonald, better known as Mac Mac & Mac. He hired as co-counsel highly regarded litigator Ward Branch of Branch MacMaster in Vancouver, author of the widely respected textbook Class Actions in Canada.
The four lawyers sat down, along with Martin, for what turned into six months of hard-fought negotiations. Yet from the start it was clear to McKiggan that something had changed; gone was the diocese’s determination to fight off any sex abuse claims, replaced by a co-operative willingness to accept its proper liabilities. “
When we started negotiations, I got the feeling that there was a legitimate desire to try to do the right thing, to try to find a way to help survivors of sexual abuse receive validation and compensation in a way that wouldn’t victimize them again,” says McKiggan. “Based on what I’ve been told by counsel, the motivation and the drive behind this was Bishop Lahey for sure.”
MacIntosh declined to be interviewed on the matter, but in an e-mail to Canadian Lawyer said the negotiations, focused as they were on sex abuse survivors, required him to rethink the famously combative strategy he normally employs as a litigator. He calls it a professional awakening, for which he is grateful. “Class actions by definition involve difficult trade-offs and compromise. It is a learning process that took a conventional litigator like me a fair bit of intellectual retooling to understand and accept,” he said.
“This type of emotionally charged abuse litigation, that literally deals with the future lives of survivors, and their ability to move forward and heal, was more challenging than most conventional class action suits. Rarely do class action lawsuits embrace psychological insight and bipartisan courage to break from comfortable, defensive patterns. The trade-offs required by both sides at the table were often as painful as they were creative.
“I admit to some professional pride in having been associated with this unprecedented approach to the psychologically sensitive and financially achievable validation of claims of institutional sexual abuse.”
Money was the biggest stumbling block. There was also tension between Martin’s desire for a fast, streamlined process for validating claims, versus the diocese’s interest in making sure compensation would be paid in fair amounts, and only to survivors with legitimate claims.
Both sides were also aware that if the class action failed, the diocese would face dozens of individual lawsuits over the coming years. That outcome could not only bankrupt the diocese, putting an end to its good works in parishes throughout an economically poor region of Canada, it would also deny compensation to survivors whose claims didn’t make it into court before the church ran out of money.
In August 2009 a settlement was reached. The church agreed to offer up $12 million to compensate valid survivors abused by a priest of the diocese since 1950. Another $3 million would be made available to pay legal fees and claimants’ costs. McKiggan obtained from the church what he considers a crucial guarantee of its financial obligations — a $15-million debenture, or security agreement, on what he says are all the diocese’s property assets. “I know what they have, and we’ve pretty much got all of it,” he says.
The deal also contains what became a pair of controversial deadlines. Survivors seeking to join the class action need to file a claim form by March 10, 2010 at the latest. Anyone seeking to opt out, and preserve his or her right to sue privately, needed to do so by Dec. 4, 2009. Failure to follow either option would extinguish any individual rights to sue. There are also two important cancellation provisions. If more than 70 eligible survivors join the class, Martin has the right to cancel the settlement agreement. If a single eligible class member opts out, the diocese can pull the plug.
A critical element of selling the deal to class members was the apparent goodwill of Lahey towards survivors, and his vows to repair and never repeat what he called the church’s “reprehensible misconduct” towards children. “Sexual abuse, indeed any abuse, is wrong,” he said when the settlement was announced. “I want to assure you that for some time our diocese, like others throughout Canada, and like other organizations, have been proactively taking steps to protect children and youth.”
Said Martin at the same announcement: “I accept Bishop Lahey’s apology, and I pray that our diocese continue its commitment to this peaceful resolution.”
Whatever good faith existed at the time disappeared once Lahey was charged with child pornography offences. Back in August Lahey “appeared to be genuine,” says McKiggan. “I believed that this was the man who truly wanted to change the way the church deals with these types of allegations. That may still be the case, but because of his criminal charges, it’s hard to say.”
Lahey’s fall from grace was too much for one potential class member. Philip Latimer, a 47-year-old unemployed welder from Cape Breton, who claims he was molested as a child by the deceased priest Hugh Vincent MacDonald, was considering signing on to the settlement, but news of Lahey’s alleged crimes convinced him to have no part of it.
A week after the news broke about Lahey’s charges, McKiggan was overseas, attending the International Bar Association conference in Madrid, when Latimer appeared at a high-profile news conference in Halifax, attacking what he called a dirty deal that “throws money at victims” in the hope they’ll go away.
Sitting beside Latimer was his newly hired lawyer Paul Ledroit, who is experienced in sexual abuse claims, of the firm Ledroit Beckett in London, Ont. Ledroit was not only friends with fellow London lawyer Raikes, McKiggan’s co-counsel on the class action, he also knew McKiggan fairly well; the two had talked professionally in the past about how best to pursue childhood abuse claims. McKiggan also says Robert Talach, a partner at Ledroit Beckett, contacted him after the class action was certified to offer his congratulations. “He called and said, ‘Congratulations on slaying the dragon. Good job.’”
No matter. Since October, Ledroit has pursued a highly public campaign to discredit the class action settlement, and invite potential class members to file individual lawsuits instead. He argues that the class settlement, with its confidential, out-of-court validation process, not only shields the church from the public details of its past abuse, but fails to allow victims the right of full disclosure, and the chance to cross-examine, at trial or in discovery, a full range of church officials.
More importantly, he says the tight deadlines created by the settlement impose an artificial limitation period on sexual abuse victims, some of whom, because of the trauma of their abuse, may not be ready to come forward, and others who may not yet have connected the dots between the abuse they suffered and its impact on their lives.
“The child that was abused two years ago, or the individual that may have been abused 15 years ago . . . these victims take years to make the connection between their emotional stress and the abuse that occurred many years ago,” says Ledroit. “This is a very, very dangerous precedent. Any diocese in the world can now say, ‘Look, we’ll make a deal with you. We’ll put up X number of dollars and we’ll enter into a class action. But after that, nobody can ever come after us again.’”
McKiggan says if Ledroit has clients, such as Latimer, who aren’t ready to come forward yet, all they have to do is formally opt out of the settlement to preserve their right to sue privately in the future. He also believes it’s “naive” to think there may be people, victimized years ago, who aren’t aware that they have a legal claim against the diocese. As for children, he says the settlement exempts people who are either minors today, or are disabled, from its opt-out deadlines.
Ledroit’s preference for a more public, adversarial process may work for some sex abuse survivors, but not many, says McKiggan. “Paul’s view is the best way to resolve these things is public litigation, press conferences, and scorched earth,” he says. “My view is there are few sexual abuse survivors who are capable of doing it that way.
“So a process that does this confidentially, privately, in a safe environment, and a non-adversarial fashion — for the vast majority of sexual abuse survivors, that’s the appropriate way to go. And I think my view has been validated by the fact that we’ve been contacted by more than 100 people looking for information about this.”
Says Ledroit: “McKiggan has a valid argument that this is the best way to get money to the people, and the cheapest way to resolve it. But at what cost? At the cost of an artificial limitation period? Who speaks for those victims that can’t come forward now?”
McKiggan admits he is concerned about the problems that have enveloped the settlement since it was approved by the court in September. A new bishop — Brian Dunn, from the Diocese of Sault Ste. Marie, Ont. — was appointed in November by the Vatican to lead the beleaguered Diocese of Antigonish.
At first, it was unclear what his views on the settlement were, and whether he would honour it. Latimer’s decision to opt out of the agreement gives the diocese the right to withdraw. “I am worried about it,” says McKiggan. “But if either party pulls out and the class action dissolves, then I will have 100 clients who will pursue individual litigation. That is what we will do.”
In December, however, MacIntosh, the diocese’s lawyer, announced publicly that the diocese wished to proceed with the class action, allaying some of McKiggan’s fears. MacIntosh says the tangled and unexpected fallout from Lahey’s criminal charges shouldn’t tarnish what he considers an honourable and innovative legal solution for the diocese and its victims.
“While former Bishop Lahey played a prominent role in the success of the settlement agreement, his subsequent fall from grace should not be used as a measure of the deal itself,” says MacIntosh. “The other parties involved, and Ron Martin in particular, deserve better than that.”
Correction: This article has been changed to reflect correct the name of the priest who Ron and David Martin accused of sexually abusing them.