Reflections on Trauma Informed Lawyering in a Class Action Settlement Hearing

By: Michael Burns

The fundamental principle of trauma informed lawyering is to be aware of the impact trauma can have upon a person. Trauma affects everyone differently and someone who has experienced trauma can react to it in a way that is unique to themselves. The legal system is often set up in a way which does not recognize trauma. Many conventional practices, procedures and policies can lead to re-traumatization. Trauma informed lawyering is focused on learning to better support those who have experienced trauma and to avoid causing re-traumatization.

Trauma Informed Lawyering: A Case Study

A recent class action serves as an opportunity to examine how a trauma informed approach is used in legal practice and how it can be improved upon in the future. Grann et al. v HMQ  (also called the Ontario Crown Ward case) involved allegations by former Crown Wards that the province breached its fiduciary duty and was negligent when it failed to make Crown Wards aware of their rights to seek compensation as a result of abuse suffered in foster care. Class Counsel and the Government of Ontario agreed to a settlement under which class members would get a maximum of $3000 (before legal fees). Justice Pierce presided over a hearing to determine if the proposed settlement was fair, reasonable and in the best interests of the class members. Over 100 class members attended the Zoom hearing, most of whom objected to the settlement as being inadequate. Justice Pierce ultimately rejected the settlement.

Typically to be an objector, a class member must write to class counsel to let them know they wish to object and class counsel then creates a list of approved class members with standing to speak at the hearing. The presiding judge decides who is allowed to speak and for how long, based on what is in the best interests of justice. While there was a small number of objectors who requested beforehand to address the court, on the day of the hearing a much larger number of people asked to speak. These class members either were unaware that they had the option to speak, were unaware of the process of being allowed to speak, or they had tried to contact class counsel but were not added to the objectors list.

The hearing was originally scheduled to take a day and a half. However, Justice Pierce made the decision that regardless of who had been put on the official speakers list, she would allow everyone who wanted to speak the opportunity to do so. Sixty class members ended up speaking, most of whom told the court about their horrific experiences of abuse and why the proposed settlement was inadequate. The hearing ultimately lasted three days.

The Good

Throughout the hearing, Justice Pierce exhibited several examples of trauma-informed practices. First, she allowed all class members the opportunity to speak and tell their stories. While this may not be seen as much, for some class members it was extremely important. Many felt that those who were charged with protecting their interests – from the government that had not protected them as children in care, to their own class counsel who were proposing what class members viewed as an unfair settlement – had never given them an opportunity to be heard. For some, it was vital that they be permitted to speak for themselves. Typically, objectors are given five minutes to speak, and the judge restricts them to the legal issues to be decided in the hearing. But Justice Pierce allowed class members to tell their story, not limiting them to legal arguments, nor the five-minute allotment. It was perhaps for this reason that many class members thanked Justice Pierce for listening to their stories; they said that no one else was listening.

Second, in addition to allowing class members to speak, Justice Pierce thanked the class members for telling their stories and she apologized for the trauma and abuse that they had experienced. For some class members, this was the first time anyone had apologized to them.

Finally, unlike in-person court hearings, where talking in the gallery would not be permitted, class members in the Zoom hearing were free to use a chat box to communicate with one another. Throughout the hearing there were constant messages being sent. These messages were usually in support of each other as they told their stories. Most class members did not know anyone else who experienced similar trauma and the chat box provided a way for class members to communicate with other people who had shared experiences. Many agreed to continue communicating after the hearing to continue their support of one another.

The Bad

While Justice Pierce allowed everyone an opportunity to speak and tell their story, this also created a burden. It was very emotionally difficult to hear what others experienced. No doubt it was also very difficult for class members to remember and disclose their trauma. One of the goals of trauma informed lawyering is to avoid re-traumatization.  Both class members who spoke and those who were present but stayed silent had to relive this trauma. Reactions varied.  Some were furious, some were distraught, some seemed hopeless, and some heartbroken. There were no formal supports for those who attended the hearing. Ideally, in a case where the focus was trauma and abuse that class members suffered, the court and counsel should prepare for and address the risk of re-traumatization. For example, creating Zoom breakout rooms where people can either have time alone or time to talk to a trauma specialist may make provide support for those who need it.

Conclusion

On the one hand, the hearing gave class members the option to tell their story and to finally be heard, in a setting where they were not alone, but where they were supported by people who had suffered like them. There is value in the experience of recounting one’s truth to an empathetic and patient judge who listens and offers apologies to survivors. On the other hand, the countless accounts of horrific abuse may have caused class members to re-suffer the trauma they experienced as a Crown Ward. A justice system that is trauma-informed should not leave it to class members to support each other or to rely on luck to get an empathetic judge. The justice system, and the lawyers, judges, and administrators who work as part of it, need to learn about and incorporate trauma-informed practices at all stages of litigation.

For more information on Trauma Informed Lawyering, please click here.

To read Justice Pierce’s decision, please click here.

                      

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