A class action is the preferable procedure and superior to the alternatives: court
The Ontario Superior Court of Justice has certified a class action lawsuit against the government of Ontario over institutional abuse in a psychiatric hospital.
In Banman v. Ontario, 2023 ONSC 6187, the plaintiffs Ruth Atkin, Martha Banman, and Louise Bark commenced a class action lawsuit against the Ontario government. The subject of the proposed class action was the psychiatric treatment of the class members when they were patients detained in the forensic psychiatric unit, known as the Psychosocial Treatment Unit (PST), of the St. Thomas Psychiatric Hospital between 1976 and 1992.
The plaintiffs alleged that the PST program the class members underwent was experimental, untested, reckless, negligent, ineffective, harmful, unethical, and cloaked from disclosure to the patients. They claimed that the PST program was a cruel and unusual treatment, utilizing, among other things, illegal seclusion and illegal restraints, including binding patients to mattresses. The plaintiffs also alleged that vulnerable female patients were exposed to harm and were victims of assault and rape while detained in the PST unit.
The plaintiffs sued the Ontario government, alleging that it is liable for breach of fiduciary duty, negligence, vicarious liability, breach of non-delegable duty, and breach of Charter rights. The plaintiffs argued that all of the criteria for certification were satisfied, including the recently amended preferable procedure criterion.
The Ontario government argued that the joinder of co-plaintiffs approach is the preferable procedure. The same approach was used in Barker v. Barker, a suit against the Ontario government with facts and allegations similar to the Banman case. The government asserted that the individuals issued predominate the common issues, and the co-plaintiff joinder approach would be preferable to the class action proposed by the plaintiffs.
The Ontario Superior Court noted from jurisprudence that the preferability analysis requires that it is conducted through the lens of judicial economy, behaviour modification and access to justice. Accordingly, for a class proceeding to be the preferable procedure for resolving the claims of a given class, it must represent a fair, efficient, and manageable procedure that is preferable to any alternative method of resolving the claims.
The court also noted that the Class Proceedings Act was amended in 2020, raising the threshold of satisfying the preferable procedure criterion. The court emphasized that the predominance of common issues over individual issues and superiority over the alternatives mean that the proposed class action must be superlative to the alternatives to satisfy the preferable procedure criterion.
The court explained that the first step in the preferability analysis is determining whether the design of the class action is manageable as a class action. The court found that the design of the proposed class action is simple and manageable. The court noted that the case is fundamentally a systemic negligence institutional abuse or malfeasance proposed class action that is completed with individual issues trials. The court emphasized that more complex systemic or far more complex institutional abuse or malfeasance class actions have been certified.
The court noted that access to justice is the prime lens for the preferable procedure analysis. From an access to justice perspective, the court noted that the proposed class action and all alternatives involve individual issues trials. The court said that in cases where a monetary award is made at the common issues trial, the proposed class action readily satisfies the criterion of a predominance of common issues over individual issues of which there may be none. There is an optimum judicial economy in such cases because the court determines everything at the common issues trial.
The court also highlighted the broad monetary range of the patients’ claims to be resolved at individual issues trials. The court noted that the case has a diverse claim demographics of up to 429 claims. Some of those claims alone would not be viable without a class proceeding. The court said that while not all of the 429 patients of the PST Unit would benefit from a common issues trial, many would benefit if the plaintiffs were successful at the common issues trials. The court stressed that a class proceeding is the only viable means to achieve access to justice for these patients.
Ultimately, the court found that the design of the proposed class action is manageable, and the common issues predominate over the individual issues for all, except the patients who have economically viable assault or sexual assault claims. However, the court acknowledged that those patients may have reasons not to opt out of the class proceedings.
The next question the court must determine is whether a class action is superior to the alternatives. The plaintiffs submitted that a class action is preferable to hundreds of individual claims advanced on behalf of vulnerable, marginalized, now elderly class members. Furthermore, the plaintiff’s counsel relied on the Barker v. Barker experience, demonstrating the inferiority of a joinder of actions compared to a class proceeding. Counsel lamented the delays, the difficulties, the deficiencies, and the frustrations of prosecuting the joinder action against the Ontario government.
From an access to justice perspective, the court found that among the reasons why a class proceeding is the preferable procedure and superior was because a class action automatically assembles the class members who may benefit from a common issues trial. Then, they can opt into individual issues trials if they have economically viable claims. The court also noted that a class action secures the class members with legal representation they might not otherwise obtain, and the class counsel may be unwilling to take on the risks of a joinder action.
The court concluded that the proposed class action satisfied the preferable procedure criterion. The court was also satisfied that the other criteria for certifying a class action had been satisfied with some qualifications and exceptions noted throughout the judgment. Accordingly, the court granted the plaintiffs’ certification motion.
