Court File and Parties

Court File No.: CV-20-641003-00CP Date: 2022-03-15 Ontario Superior Court of Justice

Between: Adrian Chandra, Plaintiff And: Her Majesty The Queen in Right of Ontario, Defendant

Counsel: James Sayce, Nathalie Gondek, and Jamie Shilton for the Plaintiff Alexandra Clark and Victoria Yankou for the Defendant

Proceeding under the Class Proceedings Act, 1992

Heard: In Writing

Perell, J.

Endorsement

[1] This is a consent motion for certification for settlement purposes.

[2] In this action, which was commenced on May 14, 2020, the Plaintiff, Adrian Chandra, sues the Ontario provincial government. He advances claims in negligence and for breaches of sections 7 and 12 of the Charter with respect to how Ontario operated and managed its provincial correctional institutions from September 18, 2018 to August 18, 2021.

[3] In particular, this class action is about the placement of Class Members in administrative segregation, a form of solitary confinement.

[4] Mr. Chandra alleges that the Class Members suffered severe harm as a result of Ontario’s policies, practices, and procedures with respect to administrative segregation.

[5] The class definition and allegations in this action are similar to those certified in Francis v. Ontario, 2020 ONSC 1644. On April 20, 2020, in the Francis action, I ruled that Ontario breached sections 7 and 12 of the Charter and was negligent in its use of administrative segregation between April 20, 2015 to September 18, 2018.

[6] In this action, Mr. Chandra, in effect, proposes a continuation of the class period from Francis. The class period in the immediate action starts at the end of the Francis class period (September 18, 2018) and runs until August 18, 2021. This class period reflects the thesis of this action, which is that Ontario’s use of administrative segregation continued following the certification of the Francis action.

[7] The use of administrative segregation stopped on August 18, 2021, when the Ministry of Correctional Services Act put into effect amendments to the general regulation (Regulation 778, R.R.O. 1990). These amendments prohibit segregation of any inmate for more than 15 consecutive days and prohibit segregation of “Inmates with a Serious Mental Illness” (“SMI inmates”) for any time at all.

[8] A settlement agreement has been agreed to by the parties to this action. The settlement is subject to court approval. Amongst other things, the settlement adds an additional $13 million in aggregate damages to be distributed to class members in Francis and in this action without prejudice to each Class Member’s ability to claim additional damages.

[9] The parties have also agreed to a protocol for the distribution of aggregate damages and for the resolution of individual issues. The proposed protocol would encompass the claims processes for both Francis and for this proceeding. These protocols are similar to those approved in class proceedings involving administrative segregation in federal correctional facilities: Brazeau v. Canada (Attorney General), 2020 ONSC 7229; Brazeau v. Canada (Attorney General), 2021 ONSC 4982; Brazeau v. Canada (Attorney General), 2021 ONSC 4294; Brazeau v. Canada (Attorney General), 2021 ONSC 1828.

[10] Mr. Chandra proposes the following class definition:

All current and former Inmates, who were alive as of May 14, 2018:

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 September 18, 2018 and August 18, 2021, (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”): Schizophrenia (all sub-types), Delusional disorder, Schizophreniform disorder, Schizoaffective disorder, Brief psychotic disorder, Substance-induced psychotic disorder (excluding intoxications and withdrawal), Psychotic disorder not otherwise specified, Major depressive disorders, Bipolar disorder I, Bipolar disorder II, Neurocognitive disorders and/or Delirium, Dementia and Amnestic and Other Cognitive Disorders, Post-Traumatic Stress Disorder; Obsessive Compulsive Disorder; or 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;

and/or,

II. Inmates in Prolonged Administrative Segregation (a) who were subjected to Administrative Segregation for 15 or more consecutive days at one of the Correctional Institutions between September 18, 2018 and August 18, 2021.

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; hallucinations; delusions; or severe obsessional rituals that interfere 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.

“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.

[11] The proposed class definition is similar to that certified in Francis, with the revision of the proposed class period.

[12] The Plaintiff and the Defendant propose only one common issue be certified. The proposed common issue is: “Is the Defendant liable to the Class?”

[13] 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.

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

[15] Order to go as requested.

Perell, J. Released: March 15, 2022