A teen alleges in a lawsuit that he suffered a violent sexual assault by two schoolmates that teachers and administrators ignored.
But the Star cannot tell you the name of the private school.
In what may be an unprecedented decision by an Ontario judge, Justice Grant Dow has placed a publication ban on the identity of an institution named in a civil case. He did so against the wishes of the plaintiff, who says he is seeking accountability for his alleged sexual assault with a broomstick.
The school can now proceed in court under a shield of anonymity. No one outside of the proceedings before a public court can know its name.
“This is the first case in Canada that we know of where an institution has been afforded the protections normally afforded to minors,” said Michael Mazzuca, lawyer for the plaintiff.
“In our view this is a dangerous precedent…It’s opened a door for other institutions to be afforded these kinds of protections.”
The publication ban was requested by lawyers for the two minor defendants in the case, who deny the allegations. The school supported the request for its anonymity.
Dow’s decision affirmed their position that identifying the school could potentially identify the individual students.
Six lawyers who reviewed the decision at the request of the Star raised serious concerns about the legal implications.
“I think it sets a very troubling precedent,” said Toronto media lawyer Ryder Gilliland. “You could conceive of a lot of circumstances where the same reasoning would apply leaving parents, students and the public prevented from knowing about serious allegations of wrongdoing at schools.”
The alleged incident, which has not been reported before, is distinct from similar allegations of sexual abuse involving students at St. Michael’s College School — which garnered widespread public attention in 2018.
The incident at the centre of the claim before Justice Dow occurred when the plaintiff was a student on a school camp trip, according to an anonymized statement of claim.
Two unnamed schoolmates “sodomized (the teen) with a broomstick and/or encouraged others to take part in the sodomization” while they were left unsupervised in a cabin, the claim alleges. The minor defendants deny the alleged sexual assault occurred.
The teen claims he struggled and screamed to stop the abuse but no staff responded to his cries for help.
“We could see the teacher’s place from where we were. I screamed their name but no one came out of the tent,” the teen said in an interview. “The next day they said they could hear us, but they didn’t come out. There were two teachers there and I told them both. They brushed it off.”
The statement of claim says the complaint was “entirely ignored…XYZ school did not investigate the incident. No action was taken whatsoever.”
The school has not filed a statement of defence.
The two minor defendants have filed statements of defence, both denying the allegations. One alleges the boys engaged in “boisterous behaviour without incident.”
The second says the boys took part in “normal roughhousing.”
The plaintiff’s mother, in an interview with the Star, said shrouding the school’s name from the public is another blow to her son and her family.
“The public needs to be made aware of what is happening. Putting their name out there is about telling the truth about what is happening.”
On Friday, the Supreme Court reaffirmed the importance of open courts and tight limits on sealing orders when it ruled, in response to a challenge by the Toronto Star, that the estate files of slain Toronto billionaires Barry and Honey Sherman should be unsealed.
In the school case, the Star agreed not to identify the minors involved (in accordance with its journalistic standards), but challenged the publication ban on the school’s name before Justice Dow last month. In written submissions filed at the time, Star lawyer Emma Carver argued the case is of “utmost public importance” as it involves “an alleged failure by a private school to protect a minor from sexual assault, its potential role in fostering a climate prone to sexual assault, its alleged mishandling of sexual assault allegations, and the response of our judicial system to these types of allegations.”
The Star offered to omit any details that could potentially identify minors such as their current ages and their school year.
In a June 4 decision, Dow rejected the arguments and maintained the ban and sealing order on the school’s name to protect the identity of the minors. The ruling says the ban would not be permanent and could be subject to review if the relevant facts change.
The Star is considering next steps.
In his order, Dow cast doubt on the motivations behind the civil claim which seeks $5 million in damages for negligence, breach of duty and loss of opportunity and income.
“I am concerned if the actual goal was publication of what occurred, a method of proceeding other than a civil action for a money judgment against the minor defendants and the school would have been advanced,” he wrote.
Alexi Wood, a Toronto lawyer who routinely handles civil sex assault and media cases, said such language contains “concerning stereotypes.”
“Simply because (the family) chose a civil route shouldn’t be something used negatively or held against a plaintiff. I find those stereotypes concerning from a precedent perspective and that they are still being perpetuated.”
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Toronto litigator Gillian Hnatiw said there are many reasons for pursuing cases through the civil courts beyond financial damages, including the pursuit of accountability and deterrence.
“If I’m reading the judge’s decision correctly, that’s a very narrow reading of the purpose of civil action,” said Hnatiw, who called the scope of the publication ban in the case “extraordinary.”
“I would be troubled if institutions could start using the protection of minors as an excuse to protect their reputations. There’s a reason our judicial processes are transparent and limits on that transparency are few and far between.”
Media lawyer Gilliland called the judge’s concern about plaintiff motivations “incredible.”
“It’s very surprising that people would be accused of a money grab in this kind of situation.”
Following the alleged sex assault, the teen was subject to jokes and “ridicule” about being attacked, he said in an interview.
“It happened around Easter, so they all started calling it the Keister Bunny.”
He said he didn’t talk about the incident after that for fear of humiliation.
“You get made fun of if you rat on them. No one would associate with you. I was more angry at the school for not doing anything when I told them about it.”
The teen says the sex abuse scandal at St. Michael’s College School in 2018 prompted renewed discussion about the incident among the boys involved.
“They talked about how it was a good thing no one found out or they’d get in trouble,” he says.
Later this month, a judge is set to decide in the case of a teen accused of sexually assaulting a fellow St. Michael’s student in a locker room. The teen has pleaded not guilty. Three other teens have already pleaded guilty to sexual assault with a weapon for their roles in the high-profile incidents.
Brendan Hughes, a Toronto media lawyer, says the similarity of the two cases is striking given the very different treatment the two schools have received when it comes to their identification in court.
“It is unfortunate and difficult to explain how you would come out with such different conclusions.”
Iain MacKinnon, a Toronto lawyer who represents one of the alleged victims in the St. Michael’s case, called Dow’s ruling “shocking,” adding that he cannot envision how naming the school would threaten to publicly expose minors.
“I could never figure out who any of these minors are if all I knew was the school. The judge in this case took an unnecessarily and overly cautious approach of throwing the baby out with the bathwater and putting a blanket ban on the school’s name, which seems outrageous to me.”
Despite widespread and intense reporting on the St. Michael’s allegations in the media over the past two years, none of the minors involved have had their identities exposed.
“There has been no greater harm to them as a result of the school being named,” says MacKinnon.
The civil claim before Justice Dow alleges the school unlawfully confined and harassed the plaintiff in a separate incident several months after the alleged assault.
The teen was called to the principal’s office about an unrelated, damning allegation he made against a teacher. The publication ban appears to prevent the Star from reporting the details of that incident.
In interviews and in the statement of claim, the teen and his parents say he had no representation during the “interrogation,” which lasted for three and a half hours during which he was treated in an “abrasive, high-handed, harsh and offensive manner,” the claim reads.
The teen alleges he was told the confinement would continue until he signed a written apology dictated to him by school administrators.
“They gave me a sheet with instructions on what to write on it,” the teen said in an interview. “I wrote it the first time and the lady read it over and said it isn’t good enough. I did it again and then she said you have to write names of everyone, everything that happened.”
The final statement dictated by the school was “self-serving,” the claim reads.
After he signed the document, he was indefinitely suspended.
His father says his son has been devastated by the school’s handling of the case.
“Many of our hopes and dreams were focused on a good education. That’s gone. We weren’t asking for money. We wanted him reinstated and therapy to deal with his issues. They felt that was an unreasonable request. They chose not to believe us.”
The teen says he has since received therapy to cope with the impact of the incident.
“I didn’t like it happening to me and I don’t want it done to someone else. I want to change the system so it doesn’t happen again.”
Robert Cribb is a Toronto-based investigative reporter for the Star. Reach him via email: [email protected]
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