The plaintiffs represent three subclasses of plaintiffs who attended Calgary’s John Ware Junior High from 1988 to 2004 and allege that they suffered sexual and/or physical abuse at the hands of former teachers Michael Gregory or Fred Archer.
Gregory, who taught physed and outdoor education, was charged with multiple sexual offences in 2006 and later died that year by suicide. Archer, now 80, was convicted in 2008 for abusing boys at a previous school but was never charged with any crimes related to his time at John Ware.
According to facts detailed in the Jan. 13 decision in EM v. The Calgary Board of Education, 2025 ABKB 18, the Calgary board is named as a defendant in the class action both under the doctrine of vicarious liability (as the employer of Gregory and Archer) and also for allegedly being directly liable because of its obligation to create a safe environment in its schools, to report any suspected abuse, and to respond properly to disclosures of abuse.
David Corrigan, lead counsel for the plaintiffs and a partner with Calgary-based HMC Lawyers, said the main bone of contention in the case was whether vicarious liability could be a common issue or needed to be dealt with individually in a mass tort action.
“Of course, we were very opposed to any approach that would see vicarious liability need to be established separately for each claimant,” he explained in an email to Law360 Canada. “The duplication of witness testimony, together with the possibility of disparate factual findings by different triers of fact made separate trials on this issue very problematic.”
The CBE opposed the plaintiffs’ arguments related to vicarious liability, arguing that determining if the doctrine applied in the case could not be done without finding facts unique to each class member. It argued, for example, that some of Gregory’s alleged victims were abused while working or volunteering at his rural acreage, not on school property.
But “in my view, at this stage,” wrote Justice Michele Hollins, “the commonalities outweigh any differences and favour a common issues trial, including any vicarious liability of CBE for the actions of Archer and Gregory.”
She noted, however, that case law, including a 2023 sexual abuse class action in VLM v. Dominey, 2023 ABCA 261, supports that the trial judge has the statutory authority to decide, or refer for decision, issues that require individual determination, as per section 28(1)of the Class Proceedings Act.
“While the parties here have already agreed that the quantum of damages, if and where appropriate, must be dealt with thus,” she wrote, “it is also conceivable that there may also be some outliers in the subclass(es) whose evidence of abuse is so far outside the common circumstances of these students that they would need to be considered individually.”
On balance, however, the interests of justice would be best served by a common class action, Justice Hollins concluded.
“Given the nature of this case and the evidence provided in the 43 Affidavits filed by the Plaintiffs (most from former students, some from their parents and some from former John Ware staff members),” she observed, “there is a demonstrated need to assist these vulnerable class members with the adjudication and resolution of these claims.
“While now all adults,” she added, “there is ample evidence that many of them have not fared particularly well and would be hard pressed to prosecute these actions individually.”
Ultimately, said Corrigan, the court made a very pragmatic decision as to how the case should proceed.
“The existence of the disagreement between the CBE and our office can perhaps be blamed on the fact that cases such as this one may not be perfectly suited for either a class action or a mass tort approach,” he observed. “That said, the Judicature Act provides the court with sufficient flexibility to ensure a sensible approach is taken. We are grateful that Justice Hollins elected the pragmatic approach in this case.”
The plaintiffs discontinued a separate legal action against Gregory’s widow and the landscaping business that they co-owned.
CBE spokesperson Joanne Anderson said the board is reviewing the decision, which it received Friday, and takes the allegations seriously.
“The CBE strives to create a welcoming, caring, respectful and safe learning environment at all times,” she added in an email to Law360 Canada. “Harassment, sexual harassment and discrimination are strictly prohibited and are not tolerated.”
If you have any information, story ideas or news tips for Law360 Canada, please contact John Schofield at john.schofield1@lexisnexis.ca or call 905-415-5815.