A Class-Action Suit for BC Kids in Care Clears a Hurdle

A proposed class-action suit alleging systemic negligence and harm to children in government care for the past 51 years is one step closer to certification following a judgment in the Supreme Court of British Columbia this month.

The proposed suit alleges B.C.’s Ministry of Children and Family Development and its predecessors failed to provide children in care with the “basic rights of childhood” and exposed them to “adverse childhood experiences.”

If approved, it would seek compensation for the tens of thousands of children who have moved through government care.

Class-action suits have to win court approval before being certified and proceeding. The legal tests for certification include establishing there are more than two people with common issues that justify a legal claim, with a representative plaintiff.

The suit, which was originally filed in 2022, has a long way to go.

“It's an ambitious case, and as a result, it's difficult to know whether it will get certified as a class proceeding because of its broad scope,” said David Klein, who noted the suit covers all B.C. youth in care since 1974. Klein is a Vancouver lawyer at Klein Lawyers, which specializes in class-action litigation, and is not involved in this case.

The Tyee reached Scott Stanley, the lead lawyer for the proposed class-action suit, but Stanley said he had been instructed by his clients not to speak to the media at this time.

The proposed class-action suit includes B.C. residents who were under 19 and whose basic rights were not met in government care and who sustained physical, sexual, social, emotional, psychological or psychiatric harm as a result. It would cover anyone affected from 1974 to the date of certification.

This proposed class action alleges breaches of fiduciary duty, negligence and breaches of rights under the Canadian Charter of Rights and Freedoms.

None of these claims has been proven in court.

Thousands of reports of deaths or injuries

The Ministry of Children and Family Development said that because the matter is before the courts, it can’t comment.

However, a scan of news stories and official reports paints a troubling picture of government care for young people in the province.

Recent stories include the death of a young Indigenous boy, called Colby in reports, who was abused and tortured by his caregivers before he died in February 2021. Colby’s social worker didn’t see him in person during the final seven months of his life, despite a requirement that children in care should be seen by social workers at least every 90 days.

The Tyee’s reporting found social workers saying staffing problems were putting kids in danger and an audit found that social workers failed to regularly visit children in foster care.

Noelle O’Soup, who was Métis, disappeared from foster care in Port Coquitlam in 2021, aged 13. Their body was found in 2022 in a single-room occupancy hotel in the Downtown Eastside. On Red Dress Day earlier this month, O’Soup’s family called for a coroner’s inquest into their death.

B.C. Representative for Children and Youth Jennifer Charlesworth has repeatedly reported on staffing shortages in the system, children going missing and child deaths.

At the news conference announcing her report on Colby’s death, Charlesworth said her office received more than 6,000 reports of deaths or injuries affecting children and youth in care or receiving government services in the preceding year. More than 3,000 of those were critical injuries or deaths that her office would investigate.

‘A tough call for the judge’

Class-action litigation is “protracted” and this case is still in the early stages, Klein said. The first phase of a class action is filing a claim, while the second phase is a certification hearing. If a class-action suit is certified, it could then be settled through negotiation or proceed to trial.

Either side could decide to appeal this ruling, but if that doesn’t happen the next step will be for the province to file its evidence. That would be followed by the certification hearing, which Klein said could possibly happen in January or later.

“It'll be a tough call for the judge in deciding whether to certify it or not certify it,” Klein said. “It is by no means hopeless. There is a good prospect for it getting certified, but the defendants have a lot of arguments to oppose certification.”

The most recent ruling on May 5 was about the plaintiff’s evidence given prior to the certification hearing. The province asked the court to strike some evidence given in affidavits and reports.

B.C. Supreme Court Justice K. Michael Stephens’ ruling was mixed. He ruled some evidence inadmissible because it was opinion, hearsay or argument, but allowed some of the evidence the province wanted to strike to be heard.

“Without going into great detail at this point, I am generally satisfied that much of the impugned opinion evidence is within the realm of ordinary experience and/or the experiential capacity of the affiant,” Stephens wrote in his decision.

“For example, statements about whether a facility was understaffed, staff were overworked or hallway clutter formed a safety risk to residents are within the realm of ordinary experience,” he wrote.

“Specialized knowledge or training is not required to make those observations. As well, I am satisfied that in many cases, the affiants were in a position to make the observations upon which they formed their opinions.”

A history of class-action suits involving children’s rights

Klein said he isn’t aware of other class-action lawsuits based on the basic rights of childhood, but the closest similarities to the proposed class-action suit would be cases involving Indigenous children, such as the Jordan’s Principle case, which argued there was discrimination in the child welfare system towards Indigenous children living on reserves.

Klein was legal counsel for the plaintiffs in two class-action suits that have some similarities to this proposed suit, including what’s known as the boarding homes case, which sought compensation for the tens of thousands of Indigenous survivors of what was called the “Indian boarding homes program.” That case covered the loss of language, culture and heritage suffered through that program as well as abuse.

Klein was also counsel for the plaintiffs of the ’60s Scoop settlement, which sought compensable damages for the denial of language, culture and heritage experienced by survivors of what’s known as the ’60s Scoop, a period of approximately 30 years in which child welfare authorities took thousands of First Nations, Métis and Inuit infants and children from their families and adopted them into mostly non-Indigenous households.

That suit was settled with a negotiated agreement that has resulted in about $750 million being paid to survivors by the federal government.

The proposed class-action suit against the Ministry of Children and Family Development, or MCFD, was filed in December 2022. The boarding homes case was filed in 2018 and settled in 2024, Klein said. The Jordan’s Principle class action took 17 years to be resolved, he noted.

If the MCFD case is certified and ultimately won or a negotiated settlement is reached, Klein said, there is no typical settlement, but the amounts could be six figures per person.

“If you look at the sorts of claims that are being made here, they're very serious claims. The injuries are very serious injuries,” Klein said. “If they're successful, they could be substantial amounts.”

Settlement compensation amounts in the ’60s Scoop case ranged from $10,000 to $200,000, Klein said.

If the MCFD case is ultimately successful, similar cases may be filed in other provinces.

“I would expect that the challenges in British Columbia are that there are similar challenges with the child welfare system in other provinces,” Klein said.

“My guess is that B.C. is not unique in this regard.”