Daniel Huffaker

The Court of Appeal for Ontario dismissed the appeal from the denial of certification of a class action alleging systemic negligence in the use of seclusion and restraint at a forensic psychiatric hospital.

The court found that the motion judge did not err in concluding that the claims lacked commonality, as the alleged wrongdoing could only be determined on an individual basis.

The court also upheld the dismissal of claims against individual hospital administrators and affirmed the costs award, finding no reversible error in the motion judge’s analysis.

The Empowerment Council sought leave to intervene as a friend of the court in an appeal from the refusal to certify a proposed class action concerning psychiatric inpatients at Waypoint Centre for Mental Health Care.

The Court of Appeal dismissed the motion, finding that the proposed intervener’s submissions were largely duplicative of the appellants’ and would not usefully contribute to the resolution of the appeal without prejudicing the parties.

The plaintiff, Roger Foley, failed to comply with a prior court order requiring payment of over $100,000 in costs to the defendants by August 30, 2024.

Despite being given an opportunity to respond, the plaintiff did not dispute non-payment and failed to provide sufficient evidence of impecuniosity.

The court dismissed the action against all remaining defendants, refusing a further extension of time or to convert unpaid costs to costs in the cause, emphasizing the importance of compliance with court orders.

Following the dismissal of the plaintiffs' motion for certification in a systemic negligence class action against a psychiatric hospital and the Province of Ontario, the successful defendants sought costs.

Waypoint claimed approximately $1.3 million and Ontario claimed approximately $815,000.

The court found the claimed amounts to be fair and reasonable given the complexity of the case and the resources expended by the plaintiffs.

Applying section 31 of the Class Proceedings Act, the court applied an approximate 10% discount due to the public interest nature of the litigation, awarding Waypoint $1,170,000 and Ontario $735,000 in partial indemnity costs.

The plaintiffs brought a motion to certify a class action against Ontario, Waypoint Centre for Mental Health Care, and individual hospital administrators, alleging systemic negligence, breach of fiduciary duty, and Charter violations related to the use of seclusion and restraints at a maximum-security psychiatric hospital.

The court dismissed the certification motion, finding that while some patients may have individual claims for culpable seclusion, there was no basis in fact for systemic wrongdoing.

The court concluded that the claims lacked commonality, as the use of restraints required highly individualized clinical assessments, and that a joinder action, rather than a class proceeding, was the preferable procedure.

The Crown appealed a Superior Court decision striking down the Toronto Transit Commission Labour Disputes Resolution Act, 2011, which eliminated TTC employees' right to strike and replaced it with binding interest arbitration.

The Court of Appeal dismissed the appeal, holding that the complete ban on strikes violates the employees' right to meaningful collective bargaining under s. 2(d) of the Charter.

The Court further found that the Crown failed to justify the infringement under s. 1, as it did not demonstrate that the complete ban was minimally impairing or that its salutary effects outweighed the deleterious effects on the workers' Charter rights.

This decision addresses the issue of costs following the striking out of the plaintiff's claim.

The plaintiff sought to have his former lawyer personally pay costs or for no costs to be awarded.

The court dismissed the request for personal costs against the lawyer, finding his conduct did not cause unnecessary costs and did not meet the high threshold for such an order.

The court awarded partial indemnity costs to the defendants and imposed terms requiring the plaintiff to pay all outstanding costs orders (including prior ones) before being permitted to amend his claim, failing which the action would be dismissed.

The plaintiff, a person with a severe neurodegenerative condition, brought an action against multiple defendants alleging Charter violations, public law breaches, and private law duties related to his hospital care, home care funding, and the constitutionality of the medical assistance in dying (MAID) provisions of the Criminal Code.

The defendants moved to strike the statement of claim under Rule 21.01(1)(b).

The court struck the statement of claim in its entirety, finding it failed to plead material facts, asserted causes of action unknown to law (such as a freestanding Charter right to health care), and constituted an abuse of process by collaterally attacking binding Supreme Court jurisprudence.

The action was dismissed against the federal and provincial Crown defendants without leave to amend.

Leave to amend was granted on strict terms for specific claims against the hospital, the local health integration network, and the independent living centre.

The Applicants challenged the Toronto Transit Commission Labour Disputes Resolution Act, 2011, arguing it infringed their freedom of association under s. 2(d) of the Charter by prohibiting the right to strike and replacing it with compulsory binding interest arbitration.

The court found the Act substantially interfered with meaningful collective bargaining and was not justified under s. 1 of the Charter, as the TTC was not an "essential service" in the constitutional sense, and the economic and equity concerns did not justify the complete prohibition of the right to strike.

The Act was declared unconstitutional and of no force and effect.

The applicants sought elevated costs as public interest litigants after successfully challenging the constitutional validity of s. 17 of the Crown Liability and Proceedings Act, 2019.

The court applied the two-branch test from Carter v Canada (Attorney General), finding that the issue was not "truly exceptional" with "widespread societal impact" comparable to Carter, nor did the applicants lack a personal pecuniary interest given the link to their underlying damages claim.

The court also noted the applicants had pursued the litigation with private funding.

Consequently, the request for elevated costs was denied, and costs were awarded on a partial indemnity basis as conceded by the respondents.

The applicants, representative plaintiffs in an uncertified class proceeding against the Crown arising from a blockade in Caledonia, brought an application for a declaration that s. 17 of the Crown Liability and Proceedings Act, 2019 (CLPA) is unconstitutional.

Section 17 imposes an automatic stay on claims against the Crown for misfeasance in public office or bad faith, requiring plaintiffs to obtain leave by showing a reasonable possibility of success, while exempting the Crown from documentary or oral discovery.

The Superior Court found that s. 17 violates s. 96 of the Constitution Act, 1867 by denying plaintiffs meaningful access to the courts, as it prevents them from obtaining the evidence necessary to meet the leave test.

The court declared s. 17 of the CLPA to be of no force or effect and lifted the stay on the applicants' proceeding.

The defendants brought a motion to transfer a class action regarding alleged systemic abuse at a psychiatric facility from Toronto to Barrie.

The court applied a holistic approach to the factors under Rule 13.1.02(2)(b) of the Rules of Civil Procedure.

While Barrie had proximity to the facility and witnesses, the Regional Senior Justice noted that due to courtroom availability and backlog, a trial in Barrie might ultimately be moved elsewhere in the Central East Region.

The court concluded that Toronto's judicial resources and specialized class action judges would better ensure a just and expeditious determination.

The motion to transfer was dismissed.

The respondent, a paralegal with public interest standing, challenged the constitutionality of provisions of the Ontario Society for the Prevention of Cruelty to Animals Act that confer police powers on OSPCA inspectors and agents.

The application judge struck down sections 11, 12, and 12.1 on the ground that they violated section 7 of the Charter by depriving individuals of liberty and security of the person without accordance with the principles of fundamental justice.

The application judge recognized a novel principle of fundamental justice requiring law enforcement bodies to be subject to reasonable standards of transparency and accountability.

The Attorney General appealed, and the Court of Appeal allowed the appeal, finding that the application judge erred in finding that section 7 was engaged and in recognizing the proposed novel principle of fundamental justice.

The applicant brought a constitutional challenge against several provisions of the Ontario Society for the Prevention of Cruelty to Animals Act (OSPCA Act), alleging violations of sections 7 and 8 of the Canadian Charter of Rights and Freedoms and the division of powers under the Constitution Act, 1867.

The court dismissed the challenge regarding the division of powers, finding that the OSPCA Act's distress provisions were intra vires the province under "Property and Civil Rights." The court also dismissed challenges to specific warrantless search and seizure provisions under section 8 of the Charter, concluding that the expectation of privacy was low in the regulatory context of animal protection.

However, the court found that sections 11, 12, and 12.1 of the OSPCA Act, which granted police and investigative powers to the OSPCA (a private organization), violated section 7 of the Charter.

This was based on a newly recognized principle of fundamental justice requiring law enforcement bodies to be subject to reasonable standards of transparency and accountability, which the OSPCA lacked.

The declaration of invalidity for these sections was suspended for one year to allow the legislature to address the constitutional defect.

A self-represented applicant brought a constitutional challenge to s. 5(4) of the Law Society Act, alleging that the Law Society’s ownership of a professional liability insurer created an unconstitutional conflict that undermined lawyer regulation and violated multiple Charter rights.

The court held that the applicant’s argument rested on an incorrect legal premise that a breach of professional conduct rules necessarily results in civil negligence liability.

Relying on Supreme Court authority, the court confirmed that disciplinary rules do not create civil causes of action and do not determine negligence liability.

The applicant also failed to provide evidence that the regulator declines to investigate misconduct for financial reasons or that the statutory provision infringed any Charter rights.

The application was dismissed.

Following the dismissal of a constitutional challenge to amendments to the Mental Health Act enacted through Brian's Law, the unsuccessful public interest applicant sought costs on a partial indemnity basis.

The court considered whether this was one of the rare and exceptional cases where costs should be awarded to an unsuccessful constitutional litigant.

Applying the discretionary principles governing costs under s. 131(1) of the Courts of Justice Act and jurisprudence on public interest litigation, the court emphasized factors including the importance of the issues, the novelty of the constitutional challenge, the applicant’s limited resources, and the quality of the litigation.

The court also considered that interim funding might have been granted had it been requested.

Weighing all factors, the court concluded that the circumstances justified a partial costs award.

Applicants challenged the constitutionality of amendments to Ontario’s Mental Health Act introduced by Brian’s Law, including expanded civil commitment criteria (Box B) and the community treatment order regime.

They alleged the provisions violated ss. 7, 9, 10, 12, and 15 of the Canadian Charter of Rights and Freedoms by permitting involuntary psychiatric assessment, detention, and community-based treatment for persons not posing a danger to themselves or others.

The court held that the legislation pursued a dual purpose of public safety and improved treatment for individuals with serious mental illness, and that the impugned provisions were neither overbroad, arbitrary, vague, nor grossly disproportionate.

Procedural safeguards, individualized clinical assessments, and consent mechanisms supported the statutory scheme’s constitutionality.

The Charter challenge was dismissed.