A judge denied certification earlier this year for their proposed $200-million class-action lawsuit against Grenville Christian College and its two former headmasters and the Anglican Diocese of Ontario, saying it isn't the preferable procedure.
But Loretta Merritt, one of the three lawyers for the plaintiffs, said that individuals would struggle to move forward with the case on their own and a class-action suit is the best way for them to be heard.
"If this decision were to stand then each individual survivor would have to come forward and say 'I want to pursue an individual action,'" she said.
"Will those people want to launch individual actions? I don't know. That's one of the concerns we have and one of the reasons why we are appealing. We are concerned that individuals may not have the emotional or financial wherewithal to pursue it on their own."
Currently there are five plaintiffs, but Merritt said about 300 people have been in touch with her and her co-counsel to pursue becoming part of the lawsuit.
"We do believe that a class action is a preferable procedure," Merritt said. "He did find that all the other criteria for certification had been met."
Grenville Christian College, which was run by Anglican priests, closed in August 2007 as allegations surfaced that psychological, physical and sexual abuse extended to the late 1970s.
At that time the chairman of the board of directors cited "changing demographics, declining enrolment, and increasing operating costs" as reasons for the closure.
The school had an elite reputation among Ontario private schools, charging up to $35,000 annually, and listed former lieutenant governors, a senator and a Canadian diplomat among its patrons.
The plaintiffs in the case are former students at the college, which operated both as a junior school and residential high school, and they alleged in the lawsuit that they were subjected to years of abuse.
The suit claimed the school was run as a mind-control cult that left the former students traumatized.
None of the allegations have been proven in court.
The allegations prompted the Anglican Church to launch an inquiry in 2007 into the activities of two priests who were headmasters, Rev. Charles Farnsworth and Rev. J. Alistair Haig, in addition to an investigation by the Ontario Provincial Police.
The OPP investigation concluded in November 2008 and no charges were laid. After consultations with the Crown they decided that charges were not in the public interest.
The plaintiffs have serious claims that should be tried in court, Justice Paul Perell of the Ontario Superior Court of Justice ruled in May. But a class-action lawsuit is not the way to go, he found.
"The technique is a penny wise, pound foolish way to secure access to justice because it will make proof of the individual members' claims more difficult," Perell said in his decision.
"In the case at bar, the expediency of framing the claim as systemic wrongdoing would not facilitate but will impede access to justice for the individual class members."
The lawsuit had also been filed against the Anglican Diocese of Ontario, but Perell dismissed the claim against them.
The diocese was unavailable for comment.
Lawyer Geoff Adair, who represents the defendants, said he expected the judge's decision because of the wide range of claims made by the plaintiffs.
"I argued for that result so I'm not surprised by the fact that it was granted," he said. "My reasoning was that there was such a variety of complaints that they really didn't fit in a class action and had to be tried individually."
Adair said that allegations varied from psychological, physical and sexual abuse, in addition to failing to accommodate learning disabilities and failing to promote Anglican values, which he said would be too far-reaching for a class action lawsuit.
Perell acknowledged in his decision that there were commonalities between this case and other cases of alleged abuse at residential schools in former Supreme Court rulings, but that there were too many individual issues that overwhelmed the common issues.
Plaintiffs have argued for "systemic negligence" at the school in their appeal, indicating that the way the school was run was in breach of duty to the students.
The plaintiffs would have to prove that injuries were as a result of the school's adoption of the teachings of a small Orleans, Mass., group called the Community of Jesus, "which is a far more difficult task than proving that he was injured because Father Farnsworth beat him with a paddle," Perell's decision said.
Merritt said she and her co-counsel are "cautiously optimistic" after perfecting the appeal. They are now waiting for the defendants to file their responding materials so that the court can set a date for an oral hearing at the Court of Appeal, which is expected to occur before the end of the year.Suggest a correction