Alleged sexual abuse victims seek to certify class action lawsuit against Alberta, church

A group of men who allege they were sexually abused by a chaplain while in an Edmonton youth jail are seeking a court's permission to sue the province and the Anglican Synod of the Diocese of Edmonton through a class action lawsuit.

The 14 men say they were assaulted by Anglican priest Rev. Gordon William Dominey when they were teen inmates at the Edmonton Youth Development Centre in the 1980s. 

Dominey was set to go to trial in January 2020 on 33 charges related to alleged historical sexual offences against 13 former inmates, but he died on Nov. 7, 2019, at age 67. 

The civil claim now before the courts was launched by one of the complainants in the criminal case. He has been seeking to have the case proceed as a class-action suit since he first filed it in 2017.

• They reported their alleged abuser. He died. Now what?

His identity is protected by a court-ordered publication ban. 

None of the allegations in either the criminal or civil case have been proven in court.

On Monday, Court of Queen's Bench Justice John Henderson heard arguments from the plaintiff's lawyer, Avnish Nanda, about why the men should be able to sue as a group, rather than attempting to seek compensation in 14 individual lawsuits. 

• Alleged victims claim sexual abuse in lawsuit against province, church, priest

During the hearing held over video conference, Nanda argued that the diocese and the province put Dominey in a position of authority over the youth, and then failed to adequately supervise the priest or enforce policies and practices to protect the youths.

"The institutional members created or permitted an environment that allowed Dominey to abuse them with impunity," Nanda said. 

The Government of Alberta and the Anglican Diocese of Edmonton are opposed to the certification being granted.

The parties argued that the varied nature of the alleged assaults would make it difficult for a judge to weigh overall liability, and that each class member would have to give evidence no matter what.

The complainants who testified during the preliminary hearing alleged being assaulted by Dominey in different places in the jail such as the swimming pool, a private office and a shower. 

"Nobody wants to be duplicating this and doing it 14 times, but at the end of the day a class action is not the right structure," argued Luciana Brasil, the province's lawyer.

She challenged the argument that there was systemic negligence or abuse by the province. 

"In this case, the allegation is only, only that Mr. Dominey assaulted the youth at the Edmonton centre," Brasil said. "There is no allegation that staff or another student committed anything to anyone else." 

• Anglican priest accused of multiple sex offences dies in hospital

Lawyers for Alberta also argued that the case doesn't meet the criteria for certification in two ways, arguing: 

• Alberta doesn't have a fiduciary duty, a commitment to act in the best interest, of inmates even if they are children.
• The Occupiers' Liability Act does not apply because two of the men alleged Dominey took them on outings and also assaulted them in his car and home.

Court also heard arguments from Nanda and the defendants over whether hearsay evidence from the preliminary hearing should be admitted.

On Tuesday, Nanda argued that having 14 separate trials would be unwieldy and could result in access to justice issues if different judges were to make different findings about the diocese and province's liability. 

He also argued that despite there being only one alleged offender who is accused of varied types of assault, the institutional failure to prevent that happening is a systemic issue.

Dominey's estate is also named as a defendant in the lawsuit, though court heard it contains no assets.  

After arguments wrapped up Tuesday, Henderson said it will take a few weeks to make a determination on certification.