Case information

Civil procedure — Class actions — Certification — Common issues — Systemic negligence — Costs — In what circumstances can institution-wide policies and practices be scrutinized through class actions — Whether hospital policies and practices as to seclusion assessable “in common” — Requirements for systemic negligence or wrongdoing — Whether systemic negligence or wrongdoing require uniform experiences and harms — How courts must consider and apply objectives of access to justice and behaviour modification under s. 31(1) of Class Proceedings Act, 1992, S.O. 1992, c. 6.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In July 2020, the applicants began an action against the Waypoint Centre for Mental Health, formerly the Mental Health Centre Penetanguishene, (“Hospital”), and certain members of its Quality Committee, under the Class Proceedings Act, 1992, S.O. 1992, c. 6. The Hospital, a maximum-security psychiatric hospital, was a public hospital under the Public Hospitals Act, R.S.O. 1990, c. P. 40. It admitted involuntary patients under the Mental Health Act, R.S.O. 1990, c. M.7, and “forensic” involuntary patients under Part XX.1 (Mental Disorders) of the Criminal Code. On December 15, 2008, Ontario divested itself of the Hospital.

The plaintiffs sought to certify the action as a class action with two classes, one for patients and one for their families. They alleged that the care provided for involuntary patients was systematically negligent because the Hospital routinely and excessively subjected its patients to solitary confinement or seclusion and the use of restraints in an abusive manner. They also alleged breach of fiduciary duty, knowing assistance, and breaches of ss. 7 and 12 of the Charter. As against Ontario and Waypoint, they alleged vicarious liability and breach of non-delegable duties for the acts and omissions of the officers, directors and employees of Ontario and Waypoint. The respondents deny any unlawful restraints, including seclusion that amounted to solitary confinement, and disputed all certification criteria.

The motion judge dismissed the certification motion and, having applied a discount under s. 31 of the Class Proceedings Act, 1992, awarded all inclusive partial indemnity costs of $1,170,000 for Waypoint and $735,000 for Ontario. The Court of Appeal dismissed the appeal as to certification, granted leave to appeal costs, and dismissed the appeal as to costs.