The defendant, Ontario, sought leave to appeal a decision certifying a class action and refusing to strike the plaintiff's claim.
The plaintiff's claim alleged that detaining individuals in jail while awaiting a psychiatric hospital bed under a Criminal Code assessment order violated Charter rights and breached fiduciary duties, relying on the decision in R. v. Hussein.
The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the certification decision because the motion judge accepted the plaintiff's legal interpretation of Hussein as a pleaded fact, and because individual issues regarding the separate purposes of detention and assessment could overwhelm common issues.
