The doctors agreed to cooperate in providing evidence instead
The Ontario Superior Court of Justice has granted a discontinuance of a class action lawsuit against the psychiatrists involved in a psychosocial treatment program (PST).
In Banman v. Ontario, 2023 ONSC 5246, Martha Banman, Louise Bark, and Ruth Atkin commenced a class action lawsuit against the Ontario government, its Attorney General, and two psychiatrists, Drs. Donald Angus Galbraith and Sam Swaminath. The case stemmed from treating individuals in the St. Thomas Psychiatric Hospital PST program between 1976 and 1992.
The plaintiffs moved for a certification of their action as a class proceeding. However, at the commencement of the certification motion, the plaintiffs moved to discontinue the action against the defendant doctors.
Ontario government did not oppose the discontinuance after the doctors agreed to cooperate in providing evidence.
Counsel for the plaintiffs outlined several reasons supporting the discontinuance:
- They argued that no additional recovery would be gained from including the defendant doctors.
- The discontinuance would streamline the claim and reduce the number of parties involved.
- Evidence presented during the certification motion demonstrated that the defendant doctors joined the hospital after the PST program was already in operation.
The hospital administrator and doctors responsible for the initial development and implementation of the PST program have passed away.
Moreover, the defendant doctors agreed to attend de bene esse examinations, ensuring preservation of their evidence for any future summary judgment motion or trial of the common issues.
The Ontario Superior Court of Justice explained that on a discontinuance motion pursuant to s. 29 of the Class Proceedings Act 1992, the court should consider, among other things, whether the parties commenced the proceedings for an improper purpose and whether, if necessary, there is a viable replacement party so that putative class members are not prejudiced.
In this case, the court found that the proceeding was not commenced for any improper purpose, as demonstrated by the evidence available to date and filed with the court for the plaintiff’s certification motion. The court also found no prejudice to the putative class members as the defendant doctors have agreed to continue participating in the action by providing evidence at de bene esse examinations and at the trial.
Furthermore, the court found no prejudice to the Ontario government for similar reasons. The evidence of the doctors is available to both parties in the ongoing proceedings. Accordingly, the court granted the discontinuance against the defendant doctors.
