The Yukon Supreme Court has given the go-ahead for class action in a lawsuit involving alleged excessive disciplinary methods at Jack Hulland Elementary School in Whitehorse.

The lawsuit stems from allegations that over the course of 20 years, staff at Jack Hulland had routinely and unnecessarily used restraint techniques and isolation to deal with behavioural issues at the school. Those included the use of purpose-built enclosures to hold children in involuntary seclusion, it is alleged.

The RCMP began investigating these procedures in 2021 and just announced the conclusion of their probe today. They are preparing a final report to be filed with the Public Prosecution Service of Canada.

In a decision released Sept. 6, Yukon Supreme Court Chief Justice Suzanne Duncan cited many common issues involving oversight and standards of care that can be combined.

She stopped short of allowing individual accusations of assault, battery and forcible confinement to be litigated together.

The certification of a class action does not mean any allegations have been proven in court.

In documents filed with the court, plaintiffs claim that going back to 2002, physical holds were overused by school staff, being employed even in cases where there was no risk of a student harming themselves or others.

They claim that this, in effect, constitutes “corporal punishment.”

In addition, plaintiffs say that in 2008, four separate one-by-one-metre “isolation booths” or “cells” were constructed in the school to hold disruptive students involuntarily and for long periods of time, in an area referred to as either the “study hall” or “the nest.”

In a statement of defence, the Yukon government denied many of these allegations and argued against allowing the class action to proceed.

The government also disputed the use of terminology such as “confinement” to describe the “study hall,” and the use of words such as “drag” to characterize actions taken by staff at the school.

The Department of Education deferred to a Department of Justice spokesperson to provide a statement to the Star about the case.

“Giving this is an ongoing matter before the courts, we will not be commenting on the specific allegations outlined in the statement of claim filed,” said a written statement from Department of Justice spokesperson Jasmine Doll.

The statement goes on to say students have a right to a safe and inclusive learning environment and a range of free-of-charge supports are available to students and families.

“We will continue to support the school community and share relevant information with them,” the statement reads.

In an interview with the Star on Tuesday, the mother of one of the children involved in the case said her child was repeatedly put in the isolation cubicles, while being watched on videotape and at times not being allowed to use the washroom.

She also said the family was misled about what was happening.

The Star has agreed not to publish the names of the parents or any other information that could reveal the identity of the children.

The mother said she had initially brought her child to Jack Hulland because she’d heard staff at the school were skilled at supporting children having issues with self-regulation.

“What we seem to have learned since then is that the skills that were implemented at Jack Hulland Elementary were disciplinary skills,” she said. “They weren’t necessarily skills where people have been trained to help kids with neurodiversity.”

The extent of the use of isolation and holds did not become known to the family until May 2022, the mother said. This was after several years of the child attending the school.

“These kids are being put in isolation, they are being held literally against their will, they’re screaming, they’re crying; their siblings are witnessing it,” she said. “All of these things now are just starting to come to light.”

The mother said that in a meeting several years ago with school officials and a local pediatrician, it was recommended by the pediatrician that the child should not be put in isolation or have their outdoor time taken away.

“The recommendations were not listened to,” the mother said.

She said school officials told her that her child was being put in a space for de-escalation, but did not inform her they were left alone and unsupervised for long periods of time, or that they were being forced to eat lunch in isolation.

“At one point, my child even soiled (their) pants in there,” she said.

All of this has caused her child to experience what is described in court documents as emotional distress, anxiety, depression and post-traumatic stress.

The mother says her child continues to bring up the experiences.

“It comes up all the time,” she said. “I don’t know how to respond to it often; I just say that I’m sorry that they’ve experienced this.”

Since filing the lawsuit, the mother said, she has been the victim of harassment on social media by people in the school systems and others in the community.

She wants those people to stop and put themselves in her shoes.

“I’m not out to hurt anyone,” she said. “Just stop and think about ‘what if this was my child?’”

A second parent who is a plaintiff in the suit said in her affidavit that she asked for records of each incident involving her child and was told by a school administrator there were so many reports, they “had lost count at 99.”

According to the affidavit, the parent made at least eight attempts to obtain copies of these records, but was provided an incomplete file and told there was a court order preventing the rest of the documents from being released.

“There is no court order,” said James Tucker, the lawyer for the plaintiffs.

Tucker hopes the reports are released during the discovery phase, which is the next step for the case.

The actual timeline for the next steps will be set by a case management judge, though Tucker said his team wants “to move as fast as possible.”

Their proposal suggests the Yukon government be given 60 days from the certification date of the class action to provide all requested documents.

At that time, the government would be legally compelled to provide documents such as those requested by the parent.

Tucker came to the case after hearing about the issue from a client he was representing in an unrelated matter. After some investigation, he discovered how many people may have been affected.

“It became apparent to me that it was a much bigger problem than what my clients were experiencing,” Tucker said.

“That’s when it dawned on me there may be something that would be suitable for a class action.”

The suit can now continue as one lawsuit for most of the claims involving the government’s duty of care, but whether each child suffered assault, battery or forcible confinement was deemed to be “individual issues” by the judge.

“In class actions, there are common issues, which are issues that can be resolved for everyone in the class, then there are individual issues,” Tucker said, adding that he agreed with the decision. “In a matter like this, it is entirely expected there would be individual issues.”

The case still has broad reach, and Tucker said anyone who has ever been held in restraint or seclusion at the school between 2007 and 2022 will now automatically become a plaintiff in this case.

He said they will have a set time period to opt out, commonly about 90 days. The final timeframe must be set in consultation with the case management judge.

Initially, the case was to go back to 2002, but because of the uncertainty of any allegations pre-dating 2007, the judge narrowed the interval by five years.

How many people will be involved is still unknown.

“We just don’t know at this point,” Tucker said. “I do know there are a significant number of people.”

Under the guidance of the court, Tucker can now begin an advertising campaign to find and inform any individuals who could become a plaintiff in the case.

“In our opinion, if a student was locked in a room, or placed in seclusion, or placed in holds and restraints, even once – just once – then they would be captured by this definition of a class,” Tucker said.