ONTARIO
DIVISIONAL COURT
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SYLVIE PHANEUF
Joseph Y. Obagi and Chelsea Gilder, for the Plaintiff (Respondent)
Plaintiff
(Respondent)
- and -
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Lise Favreau, Elaine Atkinson and Sean Hanley, for the Defendant (Moving Party)
Defendant
(Moving Party)
HEARD: February 27, 2008
RATUSHNY, J.
DECISION ON LEAVE TO APPEAL
1The defendant ("Ontario") seeks leave to appeal to the Divisional Court the decision of Charbonneau J. (the "motion judge") dated August 28, 2007 (the "certification decision") refusing to strike the plaintiff's claim as disclosing no reasonable cause of action and certifying this action as a class proceeding.
2The grounds of appeal are the following:
(1) There is good reason to doubt the correctness of the motion judge's finding that the plaintiff's claim may disclose a cause of action and it conflicts with other court decisions;
(2) There is good reason to doubt the correctness of the motion judge's formulation of the common issues in the class proceeding;
(3) There is good reason to doubt the correctness of the motion judge's decision that a class proceeding is the preferable procedure;
(4) There is good reason to doubt the correctness of the motion judge's decision that the plaintiff has produced a workable litigation plan;
(5) There is good reason to doubt the correctness of the order for production of names and addresses of class members.
1. Background
3The plaintiff's claims arise out of the decision of Desmarais J. in R. v. Hussein (2004), 191 C.C.C. (3d) 113 (Ont. S.C.J.) and the plaintiff's detention in custody at a detention centre while awaiting the availability of a suitable bed at a psychiatric hospital so that she could be psychiatrically assessed at the hospital, pursuant to an order (the "assessment order") made on November 2, 2005 under s. 672.11 of the Criminal Code, R.S., 1985, c. C-46, (the "Code"). The plaintiff claims she should have been immediately detained at a hospital rather than at the detention centre where she waited for the availability of a suitable hospital bed.
The Plaintiff's Circumstances
4The background facts pertaining to the plaintiff's circumstances are well set out in the certification decision at paras. 1 to 21.
5The assessment order (Form 48) for the plaintiff specified that it remained in force for a period of 30 days. The assessment was "to be conducted by/at the Royal Ottawa Hospital Care Group/Regional Detention Centre or any other hospital" and during that time, the plaintiff was to remain in custody at "Royal Ottawa Health Care Group/Regional Detention Centre". An order (the "remand warrant" in Form 19) was also made, remanding her to the Regional Detention Centre to be held in custody.
6The plaintiff spent 16 days in custody at the Regional Detention Centre until a suitable bed at a hospital became available, and she was transferred to it.
7It is these 16 days that give rise to her action and the class proceeding regarding Ontario's practice of incarcerating individuals in jail while awaiting a hospital bed rather than immediately placing them in custody in a psychiatric hospital.
The Certification Decision
8The motion judge commented that the plaintiff's claims stemmed in large measure from the decision in Hussein (certification decision, at para. 66).
9He found that the plaintiff's detention had been lawful pursuant to the original assessment order and the remand warrant. He found that it had also been lawful pursuant to a subsequent order on November 7, 2005 of Alder J. of the Ontario Court of Justice, remanding the plaintiff again to the Regional Detention Centre pending her hospital admission and specifically rejecting her counsel's request, based on Hussein, that Alder J. immediately order her to be brought to the Royal Ottawa Hospital (certification decision, at paras. 37-39).
10The motion judge characterized the central theme of the plaintiff's claim as follows (certification decision, at para. 67):
Any person who is the subject of a section 672.11 order must be immediately taken to an appropriate assessment facility for assessment.
When there is no bed available in an appropriate facility, it is the defendant's practice to detain the person in a prison until a bed becomes available.
In Hussein, the [Superior] Court of Justice has declared that this practice is a breach of the person's rights under section[s] 7 & 9 of the Charter of Rights and Freedoms and the defendant was ordered to ensure, within six months, that a sufficient number of secure beds were available.
The defendant owes a fiduciary duty and/or a duty of care to persons ordered [to] undergo an assessment order to ensure that a bed will be available and not to subject them to incarceration in jail awaiting for a bed.
11In determining whether the plaintiff's proceeding should be certified as a class action, the motion judge applied the test set out in s. 5 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the "Act") and concluded that the plaintiff had met all five elements of that test, including under s. 5(1)(a), that the claim disclosed causes of action for "damages for breach of fiduciary duty, damages for breach of duty of care, and damages pursuant to s. 24(1) for breach of the plaintiff's Charter rights guaranteed by s. 7 and s. 9 of the Charter of Rights and Freedoms" (certification decision, at para. 46).
The Decision in Hussein
12In Hussein, two applicants applied for habeas corpus ad subjiciendum with certiorari in aid, relating to assessment orders made in respect of each of them, pursuant to s. 672.11 of the Code. As the applicants had already been dealt with, declaratory relief was requested, and granted.
13The applicant Hussein had been detained in jail for 32 days before his assessment had commenced in hospital. The applicant Dwornik had been detained in jail for 29 days before his assessment had commenced in hospital. Presumably, they had each been subject to a 30-day assessment order although the decision does not make specific mention of this, so that there had been no valid detention order in effect after the expiry of their assessment orders.
14The ratio decidendi of Hussein is a matter of dispute.
15The plaintiff interprets Hussein as having declared that any person who is the subject of an order made under s. 672.11 of the Code must be immediately taken for assessment to an appropriate assessment or treatment facility and that Ontario's practice of allowing detained persons to remain in detention centres while awaiting appropriate hospital beds is contrary to ss. 7 and 9 of the Charter (plaintiff's statement of claim, at paras. 9-12, relying on Hussein, supra, at para. 33).
16The motion judge appeared to accept the plaintiff's interpretation of Hussein (certification decision, at paras. 22-24) and applied this interpretation to the test for certification, pursuant to s. 5 of the Act and particularly, to the first element of the test as to whether it was "plain and obvious" that the plaintiff's statement of claim disclosed no reasonable cause of action (certification decision, at paras. 30-46 and particularly para. 43).
17In other words, the plaintiff interprets Hussein as declaring that there is no authority for Ontario to detain an individual who is subject to and awaiting the commencement of a s. 672.11 assessment order in any facility other than in the hospital where the assessment is to occur. The motion judge used the plaintiff's interpretation of Hussein (certification decision, at paras. 32 and 41 referring to "material facts" pleaded as the factual basis for the certification decision) as part of the evidentiary basis for the application of the test for certification.
18Ontario disagrees with the plaintiff's and the motion judge's interpretation of Hussein and restricts Hussein to its particular facts in that there, the assessment orders had effectively expired before the assessments were commenced. Ontario submits the correct interpretation of Hussein is that so long as a detained person is assessed in hospital pursuant to and before the expiry of a valid assessment order there is nothing unlawful in having that person detained in a jail to await the commencement of their assessment in hospital.
2. Test on Motion for Leave to Appeal
19The test for granting leave to appeal to the Divisional Court is set out in Rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Leave is to be granted if Ontario meets either of the following two criteria:
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
20The "conflicting decision" test under Rule 62.02(4) (a) refers to there being a conflict in respect of a principle of law applied in the decision at issue and as applied by other courts and it being desirable for the Divisional Court to deal with the apparent conflict (Brownhall v. Canada (Ministry of Defence) (2006), 2006 7505 (ON SC), 80 O.R. (3d) 91 (Ont. S.C.J.), at paras 26 and 27; Hurst v. Armstrong & Quaile Associates Inc., [2007] O.J. No. 3267 (Div. Ct.), at para. 14).
3. Analysis
Interpretation of Hussein
21The motion judge accepted as true the facts pleaded in the plaintiff's statement of claim, including the plaintiff's interpretation of Hussein as set out above, that any person who is the subject of an order made under s. 672.11 of the Code must be immediately taken for assessment to an appropriate assessment or treatment facility and that Ontario's practice of allowing detained persons to remain in detention centres while awaiting appropriate hospital beds is contrary to ss. 7 and 9 of the Charter.
22This interpretation of Hussein informed the motion judge's analysis of each element of the test for certification.
23There is, however, another interpretation reasonably possible as to the ratio decidendi in Hussein, as set out above and advanced by Ontario, that so long as a detained person is assessed in hospital pursuant to and before the expiry of a valid assessment order, there is nothing unlawful in having that person detained in a jail to await the commencement of their assessment in hospital.
24I find Ontario's interpretation of Hussein is one that could be said to accord with the facts in that case and with the overall context of s. 672.11 orders being made under the Mental Disorder provisions in Part XX.1 of the Code, including the sections limiting their maximum duration.
25This overall context and the issue of timeliness of the commencement of hospital assessments is mentioned by Desmarais J. in Hussein and, it could be argued, was indicative of his concern as expressed at paragraph 25 of his decision, that an individual should not be detained indefinitely in the detention centre while waiting for a hospital bed and an assessment and a hospital assessment should be commenced within the time parameters found in the Code. For the applicants before him, that had not, effectively, been the case.
26Further support for Ontario's interpretation of Hussein can also be found at paras. 18, 19, 25, 27, 28, 29 and 31 of Hussein, supra when read together with the decision as a whole, with reference to the time limited aspect of assessment orders.
27It is also possible to interpret paras. 33-38 of Hussein, supra, the paragraphs primarily relied on by the plaintiff, as only applying to the apparently loose practice that the applicants had been subjected to, of not ensuring that in-custody hospital assessments be commenced and completed within the time periods of a valid assessment order.
28When the motion judge accepted the plaintiff's interpretation of Hussein he characterized this interpretation as a pleaded fact that must be accepted as true. With respect, I disagree. It is a conclusion of law as to legal principles that can be gleaned from Hussein and yet it has formed the foundational pillar of factual evidence infusing the motion judge's analysis of the certification test and the exercise of his discretion.
29If, as stated above, Hussein stands for, instead, the principle that persons awaiting an in-custody assessment must have their assessment completed within the time parameters of their assessment order, then the consideration of the plaintiff's claims for the purposes of all branches of the test for certification changes fundamentally.
Cause of Action
30With respect to the first branch of the test of whether the claim discloses a cause of action, the plaintiff was assessed "in time" pursuant to lawful detention and assessment orders. There is no material fact pleaded, apart from her possibly erroneous legal interpretation of and reliance on Hussein that could be the basis of a finding that Ontario was liable in negligence or, that it owed and breached a fiduciary duty or"a duty of care to take all reasonable steps to ensure that a bed is immediately available to comply with the assessment order so as not to expose the class members to the jail environment" (certification decision, at para. 42) or, committed Charter breaches against her.
31If the plaintiff's claim is based on an erroneous interpretation of Hussein it would be "plain and obvious" that her claims would fail and she would have been unable, contrary to the certification decision, to satisfy the first branch of the test for certification.
32It is for this principal reason, namely the plaintiff's reliance on a particular interpretation of Hussein and the motion judge's acceptance of that "fact" as a basis for her claims, that provides, in my respectful view, good reason to doubt the correctness of the certification decision and its orders.
33There are other good reasons to doubt the correctness of the plaintiff's interpretation of Hussein and the resulting certification decision.
34One reason is found in Part XX.1 of the Code including the relevant s. 672.11. As stated in s. 672.11, an assessment order is for the purpose of assessing an accused person's mental condition. No mention is made of custody. The decision as to custody is governed by s. 672.16 in Part XX.1, referring to all of the various reasons why an accused person might be detained in custody under an assessment order.
35In other words, the purpose of an assessment is separate from that of a custody order. Yet, the plaintiff's interpretation of Hussein, it could be argued, has the effect of blending or even ignoring those separate purposes and the diverse reasons for an accused person's detention and assessment. There is no indication this is what Desmarais J. intended by his decision.
36The plaintiff's interpretation of Hussein and the consequent dismissal of the importance of these separate purposes casts doubt in another way on the correctness of the motion judge's analysis of her claim that Ontario could owe her a fiduciary duty and a duty of care with respect to the implementation of the assessment order. The motion judge said, at para. 41 of the certification decision,
It is arguable that [Ontario], having full control of how assessment orders will be implemented, has a fiduciary duty to the vulnerable individuals who appear to a judge to have mental problems requiring assessment. It is arguable that [Ontario] owes a duty not to expose them to the dangerous environment of jails pending the completion of the assessment. In order to meet this fiduciary duty, [Ontario] would be required to ensure that these vulnerable individuals be detained in an appropriate treatment or assessment facility and not a jail.
37Ontario submits that in assessing the plaintiff's claim of a fiduciary duty and duty of care owed to her, it is incorrect to consider that Ontario has "full control of how assessment orders will be implemented" and that the Code authorizes other persons not within Ontario's control to make these decisions, including the judiciary, as well as hospitals, most of whom are separate legal entities.
38I agree and this lack of full control by Ontario in the implementation of assessment orders provides further reason to doubt the correctness of the cause of action analysis in the certification decision.
39Another reason to doubt the correctness of the certification decision arises out of the motion judge's finding that the plaintiff's detention had been lawful, both under the original assessment order and remand warrant remanding her to the detention centre and also under the subsequent order of Alder J. refusing her counsel's request to send her directly to the hospital and, instead, returning her to the detention centre.
40As the plaintiff did not appeal any of these orders or challenge the constitutionality of the relevant Code sections, her claims for damages against Ontario could be characterized as an impermissible collateral attack on these orders that have not been set aside or varied on appeal: R. v. Wilson, 1983 35 (SCC), [1983] 2 S.C.R. 594 (S.C.C.), at pp. 5-6 and 9 of the Quicklaw version. As such, it could be "plain and obvious" that the plaintiff's claims could not succeed. The motion judge mentioned this objection but seems to have rejected it.
Common Issues
41Ontario submits there is also good reason to doubt the correctness of the motion judge's determination with respect to the third branch of the certification test having been met, that the plaintiff's action raises issues common and essential to the claim of each and every member and the resolution of those issues will meaningfully advance the litigation.
42I agree with Ontario that issues that may be common for the proposed class members could very likely end at the fact of there being assessment and detention orders for each of those members. After that commonality, individual issues could overwhelm and dominate. These diverse individual issues would arise out of considerations related to the separate purposes of detention and assessment that must be considered in each accused person's case and the exercise by others not able to be controlled by Ontario, such as the judges and the hospitals, of their discretion in carrying out these separate purposes for each accused, all as referred to above.
Preferable Procedure, Litigation Plan, Production Order
43This analysis regarding the paucity of common issues because of the multiplicity of individual issues also applies to cast doubt on the correctness of the motion judge's determination regarding the fourth branch of the test for certification having been met, that a class proceeding is the preferable procedure for the resolution of the common issues.
44This same analysis also serves to cast doubt on the correctness of the motion judge's determination that even though the litigation plan is lacking in many respects it would be able to become workable, and on the correctness of the production order, given again, the issue of the myriad of individual considerations including the privacy interests of the proposed class members that would be of concern, all of which could have the effect of overwhelming any common issues.
4. Conclusions
45For all of these reasons, it appears, in my respectful view, that there is good reason to doubt the correctness of the certification decision.
46I agree with Ontario that its proposed appeal involves matters arising out of the certification decision that are of widespread importance. Whether Ontario could be liable in a class action for damages in respect of court ordered detentions and assessments is clearly, in my view, an issue of public importance and should be reviewed and resolved by a higher level of judicial authority.
47There is an order, therefore, primarily pursuant to Rule 62.02(4)(b) of the Rules of Civil Procedure, granting Ontario leave to appeal to the Divisional Court from the certification decision, on all five of its grounds of appeal.
48If the parties cannot agree as to costs, written submission on costs (a maximum of three pages each exclusive of attachments) may be forwarded to me before March 22, 2008.
Justice Lynn Ratushny
Released: March 5, 2008
COURT FILE NO.: 06-CV-33444
DATE HEARD: 2008/02/27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
SYLVIE PHANEUF
Plaintiff
(Respondent)
- and –
HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Defendant
(Moving Party)
DECISION ON LEAVE TO APPEAL
RATUSHNY, J.
Released: March 5, 2008