Court File and Parties

Court File No.: CV-18-591719CP Date: 2018/09/18 Ontario Superior Court of Justice

Between: CONREY FRANCIS Plaintiff And: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO Defendant

Counsel: James Sayce and Janeta Zurakowski for the Plaintiff Victoria Yankou and Andrea Bolieiro for the Defendant

Proceeding under the Class Proceedings Act, 1992

Heard: September 18, 2018

Perell, J.

Reasons for Decision

[1] The Plaintiff, Conrey Francis, was incarcerated in the Toronto South Detention Centre, a correctional facility that is operated by the Defendant, Her Majesty the Queen in Right of Ontario. Pursuant to the Class Proceedings Act, 1992, Mr. Francis brings a proposed class action against Ontario.

[2] The parties request the approval of a consent order certifying the action as a class proceeding.

[3] Pursuant to the Ministry of Correctional Services Act and Reg. 778, in its correctional facilities, Ontario employs “Administrative Segregation,” which is known colloquially as solitary confinement. Mr. Francis alleges that Ontario was negligent and breached the inmates' rights under sections 7 and 12 of the Canadian Charter of Rights and Freedoms by its use of Administrative Segregation.

[4] The two primary causes of action are breach of the Charter and systemic negligence. In particular, Mr. Francis alleges breaches of sections 7, and/or 12 of the Charter on behalf of all Class Members, such that damages for the Class Members are just and appropriate pursuant to section 24 of the Charter.

[5] Mr. Francis proposes the following class definition:

All current and former Inmates, who were alive as of April 20, 2015:

I. Inmates with a Serious Mental Illness (a) who were subjected to Administrative Segregation for any length of time at one of the Correctional Institutions between January 1, 2009 and the date of certification; (b) who were diagnosed by a medical doctor before or during their incarceration with at least one of the following disorders, as defined in the relevant Diagnostic and Statistics Manual of Mental Disorders (“DSM”): (A) Schizophrenia (all sub-types), (B) Delusional disorder, (C) Schizophreniform disorder, (D) Schizoaffective disorder, (E) Brief psychotic disorder, (F) Substance-induced psychotic disorder (excluding intoxications and withdrawal), (G) Psychotic disorder not otherwise specified, (H) Major depressive disorders, (I) Bipolar disorder I, (J) Bipolar disorder II, (K) Neurocognitive disorders and/or Delirium, Dementia and Amnestic and Other Cognitive Disorders, (L) Post-Traumatic Stress Disorder; (M) Obsessive Compulsive Disorder; or (N) Borderline Personality Disorder; and who suffered from their disorder, in a manner described in Appendix “A”, and, (c) who reported such diagnosis and suffering to the Defendant's agents before or during their Administrative Segregation (the “SMI Inmates”);

or,

II. Inmates in Prolonged Administrative Segregation (a) who were subjected to Administrative Segregation for 15 or more consecutive days (“Prolonged Administrative Segregation”) at one of the Correctional Institutions between January 1, 2009 and the date of certification (the “Prolonged Inmates”) (together the “Class Members”).

“Correctional Institutions” are correctional institutions as defined in the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, excluding the St. Lawrence Valley Correctional and Treatment Centre.

“Inmates” are inmates as defined in the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22.

“Administrative Segregation” refers to segregation as outlined in section 34 of Regulation 778, R.R.O. 1990 under Ministry of Correctional Services Act, R.S.O. 1990, c. M.22.

Appendix "A" states as follows:

• Significant impairment in judgment (including all of the following: the inability to make decisions, confusion, and disorientation);
• Significant impairment in thinking (including both paranoia and delusions that make the offender a danger to self or others);
• Significant impairment in mood (including constant depressed mood plus helplessness and hopelessness; agitation; manic mood that interferes with ability to effectively interact with other offenders or staff);
• Significant impairment in communications that interferes with ability to effectively interact with other offenders or staff;
• Ηallucinations; delusions; or severe obsessional rituals that interferes with ability to effectively interact with other offenders or staff;
• Chronic and severe suicidal ideation resulting in increased risk for suicide attempts; or
• Chronic and severe self-injury.

[6] The rationale for the April 2015 date by which a Class Member must have been alive is 2 years before the issuance of the Statement of Claim and is based on the applicable provisions in the Trustee Act to maintain actions for torts by executors and administrators.

[7] Mr. Francis proposes the following common issues be certified in this action:

Systemic Negligence a. By the operation and management of the Correctional Institutions from January 1, 2009 to the date of certification, did the Defendant owe a duty of care to the Class Members? b. If the answer to (a) is yes, what is the nature of that duty of care? c. By the use of Administrative Segregation and/or Prolonged Administrative Segregation at the Correctional Institutions from January 1, 2009 to the date of certification, did the Defendant breach a duty of care owed to some or all of the Class Members?

Sections 7 & 12 of the Charter d. Did the use of Administrative Segregation deprive the SMI Inmates of security of the person under s. 7 of the Charter? e. Did the use of Prolonged Administrative Segregation deprive the Prolonged Inmates of security of the person under s. 7 of the Charter? f. If the answer to (d) or (e) is “yes”, does the deprivation fail to accord with the principles of fundamental justice for some or all of the Class Members? g. If the answer to either question in (f) is “yes”, does the deprivation fail to accord with the principles of fundamental justice where the Class Members were placed in Administrative Segregation or Prolonged Administrative Segregation and the reason indicated for such placement was: i. at their own request; ii. for their own protection, including protection for medical reasons; iii. to protect the security of the institution or safety of others, including protection for medical reasons; iv. for alleged misconduct of a serious nature; or v. for any other reason? h. Does the deprivation of liberty under s. 7 of the Charter fail to accord with the principles of fundamental justice for some or all of the Class Members? i. If the answer to (h) is “yes”, does the deprivation fail to accord with the principles of fundamental justice where the Class Members were placed in Administrative Segregation or Prolonged Administrative Segregation and the reason indicated for such placement was: i. at their own request; ii. for their own protection, including protection for medical reasons; iii. to protect the security of the institution or safety of others, including protection for medical reasons; iv. for alleged misconduct of a serious nature; or v. for any other reason? j. Did the use of Prolonged Administrative Segregation constitute cruel and unusual treatment or punishment under s. 12 of the Charter for the Prolonged Inmates where the Prolonged Inmates were placed in Administrative Segregation and the reason indicated for such placement was: i. at their own request; ii. for their own protection, including protection for medical reasons; iii. to protect the security of the institution or safety of others, including protection for medical reasons; iv. for alleged misconduct of a serious nature; or v. for any other reason? k. Did the use of Administrative Segregation constitute cruel and unusual treatment or punishment under s. 12 of the Charter for the SMI Inmates where the SMI Inmates were placed in Administrative Segregation and the reason indicated for such placement was: i. at their own request; ii. for their own protection, including protection for medical reasons; iii. to protect the security of the institution or safety of others, including protection for medical reasons; iv. for alleged misconduct of a serious nature; or v. for any other reason? l. If the answer to questions (g), (i), (j) or (k) is “yes”, were such violation(s) justified under section 1 of the Charter? m. If the answer to question (l) is “no”, are damages pursuant to section 24(1) of the Charter an appropriate remedy?

Aggregate damages n. Is this an appropriate case for an award of aggregate damages pursuant to section 24(1) of the Class Proceedings Act, 1992? o. If the answer to (n) is “yes”, what is the appropriate quantum of such damages?

Punitive damages p. Does the conduct of the Defendant merit an award of punitive damages? q. If the answer to (p) is “yes”, what quantum should be awarded for punitive damages?

Limitation period r. What limitation period or limitation periods apply to the causes of action advanced in this case? s. What circumstances are relevant to determining when the limitation period or limitation periods referred to in question (r) begin to run?

[8] Similar Charter claims have been certified as class actions against government actors; see: Brazeau v. Attorney General (Canada), 2016 ONSC 7836; Good v. Toronto (Police Services Board), 2013 ONSC 3026; Ewert v. Canada (Attorney General), 2016 BCSC 962; Johnson v. Ontario, 2016 ONSC 5314; and Reddock v. Canada (Attorney General), 2018 ONSC 3914. Similar claims involving systemic institutional abuses have been certified; see: Cloud v. Canada (Attorney General); Baxter v. Canada (Attorney General); and Dadzie v. Canada, 2017 ONSC 7101.

[9] Pursuant to s. 5(1) of the Class Proceedings Act, 1992, the court shall certify a proceeding as a class proceeding if: (1) the pleadings disclose a cause of action; (2) there is an identifiable class; (3) the claims or defences of the class members raise common issues of fact or law; (4) a class proceeding would be the preferable procedure; and (5) there is a representative plaintiff or defendant who would adequately represent the interests of the class without conflict of interest and there is a workable litigation plan.

[10] I am satisfied that all the criteria for certification are satisfied in the immediate case.

[11] The certification motion is granted.

Perell, J.

Released: September 18, 2018