By Christian Breukelman and Bridget Irish
On June 25, 2024, Justice Perell released his decision on a certification motion in Stolove v. Waypoint Centre for Mental Health Care, 2024 ONSC 3639. This decision has significant takeaways for the growing number of potential class actions rooted in ‘systemic negligence.’
Stieber Berlach LLP represented Waypoint Centre for Mental Health Care (“Waypoint”) and three members of its senior leadership team who were personally named as defendants.[1] Waypoint operates a psychiatric hospital containing Ontario’s only high secure forensic unit. The patients in its high secure forensic unit tend to be admitted following run-ins with the criminal justice system and they have most often been found either unfit to stand trial or not criminally responsible.
The patients in Waypoint’s high secure forensic facility are often very ill and can demonstrate extremely volatile and violent behaviours. As a result, the need to seclude or restrain these patients for the safety of others can arise. The plaintiffs in this decision alleged that seclusion and restraint were systemically overused and relying heavily on past class actions involving solitary confinement in prisons, sought to certify a class action seeking damages for breach of the Charter and in negligence for the alleged injuries and losses that resulted.
The defendants were successful in resisting certification in this case. While Justice Perell’s decision is thorough and tackles a plethora of issues, the three most important takeaways are from his analyses of the cause of action and common issues criteria, as well as certain comments about an evidentiary objection made by the plaintiffs.
First, in the context of his cause of action analysis, Justice Perell dismissed the plaintiffs’ action in its entirety as against the individually named members of Waypoint’s senior leadership team. He found that, as pleaded, their conduct did not stray beyond actions that were carried out on behalf of Waypoint. While the plaintiffs had advanced several allegations as against them personally, none of them could attract liability as against them personally.
Justice Perell’s analysis is a good reminder that claims against directors and officers can be scrutinized by the court for tenability at the certification stage, even in the absence of a Rule 20 or 21 motion.
Second, the plaintiffs placed heavy reliance on previously certified class actions involving solitary confinement in the context of correctional facilities in attempting to establish common issues. They drew an analogy between solitary confinement in a prison and seclusion at Waypoint and argued that the alleged systemic negligence gave rise to common issues.
Justice Perell found that solitary confinement and seclusion were not sufficiently equivalent. At Waypoint, the use of seclusion was heavily individualized and there was no evidence to suggest that it systemically amounted to solitary confinement. Regardless of how it is characterized, Justice Perell found that the determination of whether an individual was culpably secluded or restrained had to be done on an individual basis. Further, it could not be determined on a class-wide basis whether any duration of seclusion at Waypoint suffered compensable harm – this would have to be analyzed on an individual basis as well.
This decision is a good example of how claims of ‘systemic negligence’ may not succeed where the plaintiffs’ claims are highly individualized and that while appropriate precedents can be persuasive, each case will be decided on its own facts.
Third, the plaintiffs sought to strike several of the affidavits filed by Waypoint. In particular, Waypoint tendered evidence from the proposed representative plaintiffs’ treating psychiatrists in responding to the certification motion. This evidence sought to highlight the individual nature of each patient and to give context to their time in seclusion.
This evidence was tendered pursuant to a consent order that was the product of intense negotiations, and which dictated the allowable scope of the treating psychiatrists’ evidence. Despite this, the plaintiffs objected to their affidavits as straying beyond the scope of the consent order and breaching their patients’ confidentiality.
Justice Perell did not strike the evidence and noted that this objection was “very ill-advised,”[2] “left a strong impression that the Plaintiffs were suppressing relevant evidence,”[3] and “gave the impression that the Plaintiffs were attempting to hobble and handicap the Defendants’ ability to provide evidence.”[4]
Ultimately, Justice Perell dismissed the certification motion and ordered the action proceed by way of a joinder action. He awarded $1,170,000 in costs to Waypoint and $735,000 in costs to Ontario, attracting one of the largest costs awards on a certification motion in Ontario. Justice Perell acknowledged that the defence incurred reasonable costs in efforts to vigorously defend a complex proposed class action.
This case provides an important reference point going forward for defendants facing potential class actions based in ‘systemic negligence.’
[1] Waypoint defendants were represented by Elizabeth Bowker, Jacinthe Boudreau, Deborah Berlach, Christian Breukelman and Dakota Forster at Stieber Berlach LLP
[2] Stolove v. Waypoint Centre for Mental Health Care, 2024 ONSC 3639 (CanLII) at para. 60.
[3] Ibid at para. 61.
[4] Ibid.
