COURT FILE NO.: CV-21-00671048-00CP DATE: 20230918

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MARTHA BANMAN, RUTH ATKIN by her estate representative ELLEN ATKIN, LOUISE BARK and ELLEN ATKIN Plaintiffs

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HIS MAJESTY THE KING IN RIGHT OF ONTARIO, ATTORNEY GENERAL OF ONTARIO, DONALD ANGUS GALBRAITH, and SAM SWAMINATH (formerly RANGASMUDRAM SUBRAMANYAM SWAMINATH) Defendants

Proceeding under the Class Proceedings Act, 1992

Counsel:

Joel P. Rochon, Golnaz Nayerahmadi, Matthew W. Taylor and Sarah J. Fiddes for the Plaintiffs Sonal Gandhi, Lisa Brost, Padraic Ryan, Priscila Atkinson and Taskeen Ahluwalia for the Crown Defendants Darryl Cruz, Sam Rogers, and Hannah Young for the Defendants Galbraith and Swaminath

HEARD: September 14-15, 2023

PERELL, J.

REASONS FOR DECISION

A. Introduction

[1] Pursuant to the Class Proceedings Act, 1992, Martha Banman, Louise Bark, and Ruth Atkin sue His Majesty the King in Ontario, i.e., the Ontario Government, its Attorney General, and two psychiatrists, Drs. Donald Angus Galbraith and Sam Swaminath (the “Defendant Doctors”) with respect to the treatment of the putative Class Members who were in the Psychosocial Treatment Program (“PST Program”) in the PST forensic unit (the PST Unit) of St. Thomas Psychiatric Hospital between 1976 and 1992. The Plaintiffs move for certification of their action as a class proceeding.

[2] At the commencement of the Certification Motion, the Plaintiffs moved for a discontinuance of the action as against the Defendant Doctors.

[3] After the Government of Ontario came to an agreement in which the Defendant Doctors agreed to co-operate in providing evidence, the Government did not oppose the discontinuance as against the co-defendants.

[4] At the Certification Motion, I granted the discontinuance with reasons to follow. These are those reasons.

[5] The Certification Motion was scheduled for a four-day hearing beginning on September 14, 2023. On September 13, 2023, a partial discontinuance agreement, subject to approval by this Court pursuant to s. 29 of the Class Proceedings Act was reached between the Representative Plaintiffs and the Defendant Doctors.

[6] Counsel for the Plaintiffs believe that the agreement is in the best interests of the putative Class Members for several reasons:

a. There is no additional recovery to be obtained through the inclusion of the Defendant Doctors. b. The partial discontinuance will streamline the claim and reduce the number of parties involved in the action. c. The evidence for the Certification Motion has demonstrated that the Defendant Doctors both joined St. Thomas Psychiatric Hospital in the mid-1980s when the PST Program was already in operation. The hospital Administrator and Doctors responsible for the initial development and implementation of the PST program are now all deceased. d. The Defendant Doctors have agreed to attend de bene esse examinations following the Certification Motion and following productions of documents by the Government of Ontario. These examinations will ensure that the evidence of the Defendant Doctors is preserved for any future summary judgment motion or trial of the common issues.

[7] The Defendant Doctors have also agreed to attend de bene esse examinations of them by the Government of Ontario. I observe that, in any event, the Crown would have been entitled to be given notice and to attend the de bene esse examinations of the doctors and vice versa regardless of whomever initiated the examinations.

[8] On a discontinuance motion pursuant to s. 29 of the Class Proceedings Act, 1992, the Court should consider, among other things: whether the proceeding was commenced for an improper purpose and whether, if necessary, there is a viable replacement party so that putative Class Members are not prejudiced. Here:

a. The proceeding was not commenced for any improper purpose, as demonstrated by the evidence available to date and filed with the Court for the Plaintiffs’ certification motion; b. There is no prejudice to the putative Class Members as the Defendant Doctors have agreed to continue participating in the action by providing evidence at de bene esse examinations and at trial; and c. There is no prejudice to the co-defendant Government of Ontario for similar reasons. The evidence of the doctors is available to both parties in the ongoing proceedings.

[9] It is unnecessary for this court to direct that the Plaintiffs provide notice of partial discontinuance as the partial discontinuance of the proceeding against the Defendant Doctors does not prejudice the Class Members and the action is continuing. After my oral decision about the discontinuance, the Certification Motion got underway without the participation of the doctors, although their counsel maintained a watching brief.

B. Conclusion

[10] For the above reasons, I grant the discontinuance. I have signed the Order.

Perell, J.

Released: September 18, 2023