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

DATE: 20231031

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

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

Plaintiffs

• and –

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

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

HEARD: September 14, 15, 18, and 19, 2023

PERELL, J.

Contents

A. Introduction and Overview.. 3

B. Synopsis. 5

C. Parties and Witnesses. 6

D. Procedural and Evidentiary Background. 8

1. Procedural and Evidentiary Chronology. 8

2. Class Definition. 10

3. Common Issues. 10

4. The Government’s Consent Certification Proposal 12

E. Facts. 13

1. The Oak Ridge Division. 13

2. The St. Thomas Psychiatric Hospital’s PST Unit 14

3. The Day-to-Day Operation of the PST Unit 16

4. Ruth Atkin’s Story. 18

5. Martha Banman’s Story. 18

6. Louise Bark’s Story. 19

7. Changes to the PST Program.. 19

8. Punishment or Negative Reinforcement and the PST Program.. 21

9. The Experts’ Opinion Evidence. 21

10. The PST Program.. 24

11. Class Size. 25

12. The Catalyst for a Class Action about St. Thomas Psychiatric Hospital 25

13. Barker v. Barker. 26

F. Certification General Principles. 29

G. The Proposal for a Consent Certification. 34

H. Cause of Action Criterion. 35

1. General Principles. 35

2. The Claim Against the Attorney General of Ontario. 36

3. Section 7 of the Charter. 37

4. Section 9 of the Charter. 37

5. Section 12 of the Charter. 38

6. Sections 15 and 28 of the Charter. 39

7. Breach of Fiduciary Duty. 39

8. Negligence. 40

9. Vicarious Liability and Non-Delegable Duty. 40

I. Certification and Limitation Period Defences. 42

J. Identifiable Class Criterion. 45

1. General Principles. 45

2. Discussion and Analysis. 46

K. Common Issues Criterion. 47

1. General Principles. 47

2. Discussion and Analysis. 48

(a) Question Nos. 1-3, (Fiduciary Duty); Question Nos. 6-8 (Negligence); and Questions Nos. 9-11 (Vicarious Liability and Breach of Non-delegable Duty) 49

(b) Questions Nos. 12-14, 16-18, and 20-21 (Charter Claims) 50

(c) Question No. 22: Causation. 50

(d) Question No. 23: Charter Damages. 51

(e) Question Nos. 24 and 25: Aggregate Damages. 52

(f) Question 26: Punitive Damages. 52

(g) Questions Nos. 27 and 28: Limitation Periods. 52

L. Preferable Procedure Criterion. 52

1. General Principles. 52

2. Discussion and Analysis. 55

3. Preferable Procedure Postscript 62

M. Representative Plaintiff Criterion. 63

1. General Principles. 63

2. Discussion and Analysis. 63

N. Conclusion. 64

REASONS FOR DECISION

A. Introduction and Overview

[1] Pursuant to the Class Proceedings Act, 1992,[^1] Ruth Atkin, Martha Banman, and Louise Bark, sue His Majesty the King in Ontario (the “Ontario Government”) and its Attorney General. The three Plaintiffs also sued two psychiatrists, Dr. Donald Angus Galbraith and Dr. Sam Swaminath (the “Defendant Doctors”), but at the commencement of the hearing of the Certification Motion, the Plaintiffs moved for a discontinuance of the action as against the Defendant Doctors. I granted the discontinuance.[^2]

[2] The subject of the proposed class action is the psychiatric treatment of the class members when they were patients detained in the forensic psychiatric unit, which was known as the PST Unit (Psychosocial Treatment Unit), of the St. Thomas Psychiatric Hospital. While in the PST Unit, it is alleged that between 1976 and 1992, all the patients underwent treatment pursuant to the Psychosocial Treatment Program, the “PST Program”.

[3] The Plaintiffs move for certification of their action as a class proceeding. The Plaintiffs allege that between 1976 and 1992 (16 years), the Government of Ontario operated the PST Unit, a forensic psychiatric unit, of the St. Thomas Psychiatric Hospital using the PST Program, a psychosocial treatment program. The PST Program was modeled on the treatment program used by the Government of Ontario at the Oak Ridge Division of the Penetanguishene Mental Health Centre from 1968 to 1983. Oak Ridge was another forensic psychiatric institution of the Government of Ontario.

[4] The three Plaintiffs allege that the PST Program in the PST Unit at St. Thomas Psychiatric Hospital was experimental, untested, reckless, negligent, ineffective, harmful, unethical, and cloaked from disclosure to the patients. They allege that the PST Program was a negligently implemented therapeutic community that included the MAP Program (Motivation, Attitude, and Participation Program), which was borrowed from Oak Ridge. The Plaintiffs allege that the Government in operating the PST Program culpably delegated treatment decisions to “patient-teachers”, who in the guise of treatment inflicted confinements, restraints, grievous humiliations at group therapy and torturous punishments. The Plaintiffs allege that the PST Program was a cruel and unusual treatment, utilizing, among other things, illegal seclusion and illegal restraints, including binding patients to mattresses. Further, the Plaintiffs alleged that vulnerable female patients were exposed to harm and were victims of assault and rape while detained in the PST Unit.

[5] The Plaintiffs allege that the Government of Ontario and the Attorney General of Ontario are liable for: (a) breach of fiduciary duty; (b) negligence; (c) vicarious liability and breach of non-delegable duty; (d) breach of s. 7 (life, liberty, and security of the person) of the Canadian Charter of Rights and Freedom[^3]; (e) breach of s. 9 (detention or imprisonment) of the Charter; (f) breach of s. 12 (treatment or punishment) of the Charter; and (g) breach of s. 15 (equality) and s. 28 (rights guaranteed equally to both sexes) of the Charter.

[6] There were 429 patients treated in the PST Unit between 1976 and 1992, and of these, 118 patients participated in the MAP Program (43 male; 75 female). A class action inclusive of both the MAP Program patients and also the non-MAP Program patients would determine whether up to 429 patients, up to 118 patients, or no patients have claims against the Government of Ontario for what happened to them while detained in the PST Unit. The Plaintiffs submit that if their class action is successful, the 429 patients who were detained in the PST Unit will recover a baseline award for having experienced the PST Program, and then the 429 patients will be eligible for additional compensation at individual issues trials where the quantum of individual damages would be determined. Thus, the Plaintiffs submit that all of the certification criteria are satisfied for a class of 429 patients. The Plaintiffs submit that the proposed common issues questions will substantially advance the patients’ cases.

[7] The Plaintiffs argue that all of the criteria for certification are satisfied including the recently amended preferable procedure criterion. The Plaintiffs dispute the argument of the Government of Ontario that the joinder of co-plaintiffs approach, which was the procedure used in Barker v. Barker,[^4] is the preferable procedure in the immediate case.

[8] In Barker v. Barker, 28 co-plaintiffs who were patients at the Oak Ridge Division sued the Government of Ontario. In a decision varied by the Ontario Court of Appeal, 27 of the 28 co-plaintiffs were awarded approximately $10.0 million for what had occurred at Oak Ridge in its forensic psychiatric unit. In the immediate case, for very different reasons, the parties respectively rely on the Barker v. Barker decision to make their respective cases for or against the certification of multiple causes of action for what occurred at the St. Thomas Psychiatric Hospital.

[9] The Government of Ontario opposes certification. The Government submits that the Plaintiffs misapply the law of vicarious liability in an attempt to hold the government liable for wrongdoings perpetrated by the patients, and that the vicarious liability cause of action cannot be certified. The Government submits that the Plaintiffs’ pleaded causes of action under s. 9 and under s.28 of the Charter do not demonstrate a reasonable cause of action. The Government asserts that the conflict between putative class members about patient-on-patient assaults and sexual assaults makes the class definition criterion unsatisfiable. The Government submits that there are insurmountable conflicts of interest amongst the patients and that this is another reason that the proposed class action as presented cannot be certified. And the Government of Ontario adopted the Defendant Doctors’ argument that, in any event, all of the Plaintiffs’ causes of action are statute-barred.

[10] The Government of Ontario submits that the class definition is overbroad and over-extended in duration by including patients before the commencement and after the termination of the MAP Program.

[11] The Government submits that the common issues criterion is not satisfied. It submits that the Plaintiffs’ proposed common issues are unfair and do not satisfy the common issues criterion beyond questions about the MAP Program. The Government submits that the proposed common issues under sections 7, 12, and 15 of the Charter cannot be certified for want of commonality. The Government submits that the proposed common issues are so diffuse, vague, generalized, and disconnected from the evidence that the Government is unfairly left powerless to mount a defence. The Government of Ontario submits that the Plaintiffs’ proposed common issues will not and cannot meaningfully advance the proposed class action.

[12] The Government of Ontario submits that the Plaintiffs’ proposed class action does not satisfy the preferable procedure criterion. In this regard, the Government of Ontario submits that the individual issues predominate over the common issues and the co-plaintiff joinder approach of Barker v. Barker in an action by the patients who underwent the MAP Program would be preferable than the class action proposed by the three Plaintiffs. The Government submits that the Plaintiffs’ proposed class proceeding is not the preferable procedure to determine the up to 429 idiosyncratic claims.

[13] The Government of Ontario submits that the litigation plan is deficient, among other reasons, because of its failure to deal with the conflicts between putative Class Members with respect to the sexual assault claims.

[14] The defence of the Ontario Government is that at worst it might be liable for the mistreatment of the 118 patients who underwent the MAP Program, which it describes as involving “negative reinforcement” rather than punishment. The Government submits that none of the certification criteria are satisfied for a class of 429 patients.

[15] The overarching submission of the Government of Ontario is that the Plaintiffs’ action is not certifiable and while a repleaded action focussing just on the MAP Program might be certifiable, the currently proposed class action would not be the preferable procedure for resolving the patients’ claims. The Government submits that Justice Morgan’s decision in Barker v. Barker demonstrates that the matters at issue can be effectively and appropriately determined through a multi-plaintiff proceeding that allows a court to consider the individual circumstances of plaintiffs and the varying viability of their claims.

[16] Thus, the Government of Ontario opposed all aspects of the Plaintiffs’ proposed class action. However, notwithstanding this opposition, on the eve of the Certification Motion, the Government of Ontario proposed the compromise of a class action that would have no Charter common issues and no damages common issues and that instead would focus only on the breach of fiduciary duty and negligence claims with respect to the MAP Program.

B. Synopsis

[17] Having heard the submissions of the parties and for the reasons that follow, the Certification Motion against the Government of Ontario is granted with the qualifications and exceptions noted throughout the judgment.

[18] The certification motion and the action against the Attorney General is dismissed; the Attorney General was never a proper party.

[19] The Plaintiffs satisfy the cause of action criterion except for the claims of: (a) breach of s. 9 of the Charter (detention or imprisonment), which claim, incidentally, the Plaintiffs agreed to abandon if their other Charter causes of action were certified, which is the case; and (b) s. 28 of the Charter, which is not a cause of action but is rather subsumed by s. 15 of the Charter.

[20] The Plaintiffs satisfy the class definition criterion.

[21] Except for Questions Nos. 12-21 (Charter common issues), Question No. 22 (Causation); Question No. 23 (Charter Damages), Questions Nos. 24 and 25 (Aggregate Damages) and Question No. 26 (Punitive Damages), the Plaintiffs satisfy the common issues criterion.

[22] The Plaintiffs satisfy the preferable procedure criterion but not for Questions Nos. 12-21 (Charter common issues), Question No. 22 (Causation); Question No. 23 (Charter Damages), Questions Nos. 24 and 25 (Aggregate Damages) and Question No. 26 (Punitive Damages).

[23] The Plaintiffs satisfy the representative plaintiff criterion.

[24] Thus, with qualifications as to which causes of action and as to what common issues are certifiable, the Plaintiffs satisfy all of the certification criteria.

[25] For the discussion that follows, it shall be important to keep in mind that unless it settles, the certified class action will not end with the common issues trial and there is no aggregate damages award or minimum damages award. Assuming that the Plaintiffs are successful at the common issues trial, the Government of Ontario’s liability, if any, will be determined at the individual issues stage of the certified class action.

C. Parties and Witnesses

[26] Ellen Atkin. is the estate representative (and former litigation guardian) for her sister Ruth Atkin. Ruth was a patient in the PST Unit at St. Thomas Psychiatric Hospital. Ellen Atkin is the proposed Representative Plaintiff for the family class.

[27] After the commencement of the proposed class action, Ruth Atkin passed away at the age of 62. When Ruth was 21 years old, she was involuntarily admitted to the St. Thomas Psychiatric Hospital pursuant to a Warrant of the Lieutenant Governor. She remained in the hospital for 12 years of which ten years were in the ATU, (the Young Adult Unit) and not the PST Unit that is the subject of the proposed class action. She was discharged in 1993. It is alleged that Ruth Atkin experienced the PST Program and the MAP Program. Ruth Atkin is a Plaintiff and a proposed representative plaintiff by her estate representative, Ellen Atkin.

[28] Martha Banman is 62 years old. When she was 17 years old, she was involuntarily admitted to the St. Thomas Psychiatric Hospital for approximately nine months between December 1977 and September 1978. She alleges that she experienced the PST Program and the MAP Program. She was sexually assaulted by another patient of the PST Unit. Ms. Banman is a proposed representative plaintiff.

[29] Louise Bark is 63 years old. When she was 25 years old, on March 6, 1985, she was involuntarily admitted from Kingston Psychiatric Hospital to St. Thomas. Before her arrival at St. Thomas Psychiatric Hospital, Ms. Bark had more than a decade long history of severe mental health problems. Ms. Bark had no criminal record and from 1976 to 1985, she had been hospitalized approximately 15-20 times in various psychiatric hospitals in Ontario for self-destructive behaviour, attempted suicide, and aggressive behaviour. Between March 6, 1985 and January 18, 1986, she was a non-forensic patient of the defendant Dr. Swaminath. Ms. Bark’s involuntary admission ended on July 16, 1985, but she stayed for six months as a voluntary admission patient. She was discharged in February 1986. While at St. Thomas Psychiatric Hospital, she did not experience the MAP Program, but she did experience the PST Program. She was restrained and secluded on several occasions while on the PST Unit because of self-injurious behaviour. While at the Hospital, she was sexually assaulted by another patient in the PST Unit. After she left the hospital, Ms. Bark’s mental health problems did not reoccur; she has not been on any medication or received mental health care for over 20 years. Ms. Bark is a proposed Representative Plaintiff.

[30] Dr. John Bradford, who is an expert witness for the Plaintiffs, has specialist degrees in psychiatry from South Africa, the UK, the USA, and Canada. He has been declared a founder of Forensic Psychiatry by the Royal College of Physicians and Surgeons of Canada. He is a Past Chair of the Examination Board for the subspecialty of Forensic Psychiatry under the Royal College of Physicians and Surgeons of Canada. He is a member of the Ontario Review Board (“ORB”) since 1980. Between February 1978 and mid-2016, he was a Professor in the Division of Forensic Psychiatry, Faculty of Medicine, the University of Ottawa, with a cross-appointment as a Professor in the Department of Criminology. He has been an adjunct professor at other universities and has won numerous prestigious awards for his work in psychiatry.

[31] Dr. Gary Andrew Chaimowitz, who was an expert witness for the Defendants is licensed to practise medicine by the College of Physicians and Surgeons of Ontario (M.B., Ch.B., 1979). He is certified in psychiatry by the Royal College of Physicians of Canada [F.R.C.P.(C) 1988]. He is designated as Founder-Forensic Psychiatry by the Royal College of Physicians of Canada. He is also certified in psychiatry by the American Boards of Psychiatry and Neurology (D.A.B.P.N.). He is a Professor at McMaster University and is the Head of the Forensic Service at St. Joseph's Healthcare, Hamilton.

[32] Robert Cunningham was the administrator of the St. Thomas Psychiatric Hospital from 1986 to 1993.

[33] Dr. Donald Angus Galbraith, who was a defendant until the discontinuance of the action as against the Doctor Defendants, received his medical degree from Western University in 1961. He completed his psychiatric residency in 1966. From 1966 to 1984, Dr. Galbraith was the Director of Professional Education at the Children’s Psychiatric Research Institute in London, Ontario. In the summer of 1984, he became the Medical Director of St. Thomas Psychiatric Hospital and he was also appointed as an Assistant Professor in the Department of Psychiatry at the University of Western Ontario. As Medical Director, Dr. Galbraith oversaw all ten clinical departments in the hospital, with the exception of nursing. Only one of the clinical departments, the PST Unit is the subject of the proposed class action. Dr. Galbraith reported to the Administrator of the Hospital.

[34] Eldon Hardy is a 78-year-old patient detained at the Centre for Addiction and Mental Health (“CAMH”) in Toronto. Between June 14, 1972 and March 23, 1977, and between April 27, 1977 and October 6, 1981 he was detained at the Oak Ridge Division of the Mental Health Centre Penetanguishene, a maximum-security forensic psychiatric facility. He was detained pursuant to a Warrant of the Lieutenant Governor having been found Not Guilty by Reason of Insanity for charges of indecent assault and buggery. Between March 23, 1977 and April 27, 1977 - for one month - he was transferred to St. Thomas Psychiatric Hospital, pursuant to an Order-in-Council approved by the Lieutenant Governor, dated December 22, 1976 made on the recommendation of the Review Board. He was one of the first transfers from Oak Ridge’s to St. Thomas Psychiatric Hospital. Mr. Hardy was transferred to be one of the patient-teachers of the PST Program but was returned to Oak Ridge after an incident when he had attacked others in the PST Unit.

[35] Normelia Miranda is a law clerk with Rochon Genova LLP, proposed Class Counsel. She provided documentary evidence about Oak Ridge, Barker v. Barker, and St. Thomas Psychiatric Hospital.

[36] Dr. Roy O’Shaughnessy, who was an expert witness for the Plaintiffs, is a physician with a specialty in psychiatry including forensic psychiatry. He was the head of the Forensic Program at the University of British Columbia from 1986 to 2012 and then continued as a member of the program where he performed clinical work. He became a clinical professor emeritus in 2021. He has had a private practice since 1981 focusing primarily on civil litigation and adult criminal assessments. He has been designated a “Founder, Forensic Psychiatry” by the Royal College of Physicians and Surgeons of Canada. He is on the examination committee, forensic psychiatry, Royal College of Physicians and Surgeons of Canada.

[37] Dr. Sam Swaminath, who was a defendant until the discontinuance of the action as against the Defendant Doctors, received a medical doctorate degree in 1970 at Osmania University in Hyderabad, India. From 1974 to 1980, he trained in psychiatry in Leicester, England as a Senior House Officer/Registrar. He received his MRC Psych designation from the Royal College of Psychiatrists of the United Kingdom in March 1980. From 1980 to 1985, he worked as a Registrar in Psychiatry at Bedford General Hospital, and as a Senior Registrar in Forensic Psychiatry at Trent Regional Health Authority in Sheffield in the United Kingdom. In February of 1985, Dr. Swaminath became Director of the Forensic Unit at St. Thomas Psychiatric Hospital, and he was also appointed as an Assistant Professor in the Department of Psychiatry at the University of Western Ontario. Dr. Swaminath became a Fellow of the Royal College of Physicians of Canada in July of 1987.

D. Procedural and Evidentiary Background

1. Procedural and Evidentiary Chronology

[38] On October 27, 2021, the Plaintiffs commenced their proposed class action by Statement of Claim. The proposed Class Counsel is Rochon Genova LLP, which were counsel for the plaintiffs in Barker v. Barker, which as the discussion below will reveal began as a proposed class action for approximately 1,200 inmates of Oak Ridge.

[39] The action was defended by the Defendant Doctors, who were represented by McCarthy Tétrault LLP, and by the Government of Ontario and its Attorney General by Ministry of the Attorney General, Crown Law Office, Civil Law.

[40] On March 22, 2022, the Plaintiffs delivered an Amended Statement of Claim which, among other things, extended the class period from 1988 to 1992.

[41] On July 1, 2022, the Plaintiffs delivered their Certification Motion Record (1,126 pages).

[42] On January 13 and 14, 2022, Eldon Hardy was examined de bene esse.

[43] In December 2022, the Defendant Doctors delivered their Responding Motion Record (237 pages).

[44] In January 2023, the Defendant Doctors delivered a Supplementary Responding Motion Record (82 pages).

[45] On January 4, 2023, the Government of Ontario delivered its Responding Motion Record (300 pages).

[46] On March 1, 2023, the Government of Ontario delivered a Supplementary Responding Motion Record (7 pages).

[47] On March 14, 2023, the Plaintiffs delivered a Reply Motion Record (139 pages).

[48] On May 17, 2023, the Plaintiffs delivered a Supplementary Motion Record (49 pages), including an Amended Amended Statement of Claim that added Ms. Bark as a Plaintiff and as a proposed Representative Plaintiff.

[49] In May 2023, the Defendant Doctors delivered a Sur-Reply Motion Record (311 pages).

[50] On June 1, 2023, Robert Cunningham was cross-examined.

[51] On June 2, 2023, Louise Bark and Dr. Donald Angus Galbraith were cross-examined.

[52] On June 5, 2023, Ellen Atkin and Martha Banman were cross-examined.

[53] On June 6, 2023, Dr. John Bradford was cross-examined.

[54] On June 7, 2023, Dr. Gary Chaimowitz was cross-examined.

[55] On June 20, 2023, Dr. Roy O’Shaughnessy was cross-examined.

[56] On June 23, 2023, Dr. Sam Swaminath was cross-examined.

[57] The transcripts of the examinations comprise 2,598 pages.

[58] In July 2023, the Defendant Doctors delivered the answers to undertakings brief (71 pages).

[59] On July 13, 2023, the Plaintiffs delivered a Second Supplementary Motion Record (8 pages) and the Government of Ontario delivered an answers to undertakings brief (47 pages).

[60] On July 14, 2023, the Plaintiffs delivered their Factum (140 pages).

[61] On August 2, 2023, the Plaintiffs delivered an Undertakings Brief (45 pages).

[62] On August 23, 2023, the Government of Ontario delivered its Responding Factum (99 pages).

[63] In August 2023, the Defendant Doctors delivered their Responding Factum (106 pages).

[64] On September 7, 2023, the Plaintiffs delivered a Reply Factum (104 pages).

[65] The Plaintiffs’ certification motion was supported by the following evidentiary record:

a. Affidavit dated June 29, 2022 of Ellen Atkin.

b. Affidavits dated June 29, 2022 and June 5, 2023 of Martha Banman.

c. Affidavits dated March 10, 2023 and May 17, 2023 of Louise Bark.

d. Affidavits dated July 1, 2022 and March 14, 2023 of Dr. Bradford.

e. Affidavit dated November 5, 2021 of Eldon Hardy.

f. Affidavit dated June 28, 2022 Normelia Miranda.

g. Affidavit dated July 1, 2022 of Dr. O’Shaughnessy.

[66] The Ontario Government resisted the certification motion with the following evidentiary record:

a. Affidavits dated January 4, 2023 and March 1, 2023 of Robert Cunningham.

[67] The Defendant Doctors resisted the certification motion with the following evidentiary record:

a. Affidavit dated January 25, 2023 of Dr. Chaimowitz.

b. Affidavits dated December 7, 2022 and May 3, 2023 of Dr. Galbraith.

c. Affidavits dated December 8, 2022 and May 6, 2023 of Dr. Swaminath.

2. Class Definition

[68] The proposed class definition is:

All persons who were patients in the Psychosocial Treatment Program (referenced as 2C, P2C, PST or PSTU) or its successor PST Program on the forensic unit at St. Thomas between 1976 and 1992, or their estates, (“Class Members”); and

All persons including, but not limited to, spouses, children, parents, and other relatives who, on account of a personal relationship to any one or more Class Members have a derivative claim for damages under s. 61 of the Family Law Act, R.S.O. 1990, c. F.3 or other equivalent provincial or territorial legislation (“Family Class Members”).

[69] It shall be important to note that the proposed class definition is now narrower than the originally proposed class definition, which included all patients in the two forensic psychiatric units at St. Thomas Psychiatric Hospital. The revised definition narrows the class to patients admitted to the PST Unit and who remained after a two-week assessment period.

3. Common Issues

[70] The proposed common issues are set out below. The questions were revised after the discontinuance of the action as against the Defendant Doctors and after the Plaintiffs conceded that: (a) the Attorney General should not have been joined as a party defendant; (b) the questions about knowing assistance were redundant; and (c) the questions about s. 9 and s. 28 of the Charter should be deleted. The revised questions added limitation period questions.

Fiduciary duty common issues

1. By it administration, implementation, and operation of the PST Program, did Ontario owe a fiduciary duty to the Class Members?

2. If the answer to No. 1 is “yes”, what was the content of that fiduciary duty?

3. If the answer to No. 2 is “yes”, did Ontario breach the fiduciary duty owed to some or all of the Class Members?

Knowing assistance common issues

4. [Deleted]

5. [Deleted]

Negligence common issues

6. By its administration, implementation, and operation of the PST Program, did the Government of Ontario owe a duty of care to the Class Members?

7. If the answer to No. 6 is “yes”, what was the standard of care?

8. If the answer to No. 6 is “yes”, did Ontario breach the duty of care owed to some or all of the Class Members?

Vicarious liability common issues & breach of non-delegable duty common issues

9. Is Ontario vicariously liable for the tortious acts and omissions of St. Thomas patients?

10. Did Ontario owe the Class Members a non-delegable duty to provide them with observation, care, and treatment?

11. If the answer to No. 10 is “yes”, by facilitating or permitting the administration, implementation, and operation of the PST Program at St. Thomas, did Ontario breach the non-delegable duty or duties it owed the Class Members?

Charter common issues

12. From April 17, 1982 onward, did any aspect of the PST Program deprive the Class Members of the right to the security of the person under section 7 of the Charter?

13. From April 17, 1982 onward, did any aspect of the PST Program deprive the Class Members of their right to liberty under section 7 of the Charter?

14. If the answer to No. 12 or No. 13 is “yes”, did the deprivation of the Class Members’ rights to security of the person and/or liberty fail to accord with the principles of fundamental justice?

15. [Deleted]

16. From April 17, 1982 onward, did any aspect of the PST Program constitute cruel and unusual treatment or punishment under s. 12 of the Charter?

17. From April 17, 1985 onward, did the PST Program create a distinction based on the Class Members’ sex/gender under s. 15 of the Charter?

18. From April 17, 1985 onward, did the PST program impose a burden upon the Class Members or deny them a benefit in a manner that reinforces, perpetuates, or exacerbates a disadvantage under s. 15 of the Charter?

19. [deleted]

20. If the answer to question No. 14 is “no”, were the violations of the Class Members’ rights to security of the person and/or liberty justified under section 1 of the Charter?

21. If the answer to some or all of questions No. 16, No. 17, or No. 18 is “yes”, were such violation(s) justified under section 1 of the Charter?

Causation and harm common issues

22. If the answer to one or more of questions No. 3, No. 7, No. 8, and No. 9 is “yes”, did the Defendants’ breaches cause the Class Members a base level of harm?

Damages common issues

23. If the answer to questions No. 21 and/or No. 22 is “no”, are damages pursuant to section 24(1) of the Charter an appropriate remedy?

24. Is this an appropriate case for an award of aggregate damages pursuant to section 24(1) of the Class Proceedings Act, 1992?

25. If the answer to No. 24 is “yes”, what is the appropriate quantum of such damages?

26. Does the conduct of Ontario in implementing and operating the PST Program merit an award of punitive damages to some or all of the Class Members?

Limitation Periods

27. Did Ontario conceal the Class Members’ cause of action such that any application limitation period is tolled by one or more of: (a) the common law doctrine of fraudulent concealment; or (b) section 15(4)(c) of the Limitations Act, 2002?

28. Do ss . 16(1)(h), 16(1)(h.1), and/or 16(1)(h.2) of the Limitations Act, 2002 preclude the application of any limitation period to the claims of some or all of the Class Members?

4. The Government’s Consent Certification Proposal

[71] On September 5, 2023, the Government of Ontario sent a “with prejudice” letter to Rochon Genova, LLP proposing the compromise of a class action focusing only on the MAP Program and precluding later advancing non-MAP Program claims. The Government’s letter states:

We write with regard to a potential settlement of your clients’ certification motion.

There may be a compromise that achieves what is, in our view, a more coherent and, frankly, viable claim that focuses on what this case has been about since the beginning – the MAP program at St. Thomas. The holding in Barker suggests that liability may arise from implementation of the MAP program, should it be similar to the MAP program at Oak Ridge. A class proceeding that is focused on the operation of the MAP Program would allow for a determination of liability on a common, class-wide basis. The action would be manageable and conducive to resolution in a timely manner, which is in everyone’s interests, and particularly those of your clients. Frankly, this tailored approach will be more amenable to your intended summary judgment motion or other resolution which the parties may be able to achieve through negotiation.

There may be a compromise that achieves what is, in our view, a more coherent and, frankly, viable claim that focuses on what this case has been about since the beginning – the MAP program at St. Thomas. The holding in Barker suggests that liability may arise from implementation of the MAP program, should it be similar to the MAP program at Oak Ridge. A class proceeding that is focused on the operation of the MAP program would allow for a determination of liability on a common, class-wide basis. The action would be manageable and conducive to resolution in a timely manner, which is in everyone’s interests, and particularly those of your clients.

Frankly, this tailored approach will be more amenable to your intended summary judgment motion or other resolution which the parties may be able to achieve through negotiation.

We attach common issues that we propose as a means forward. If acceptable, the statement of claim would have to be amended to reflect this narrowed, focused approach. The parties and counsel would also have to agree to additional terms for such a consent certification, including various undertakings to not, for instance, later advance these non-MAP program claims. We are amenable to negotiating a possible compromise.

[72] In the schedule provided with the with-prejudice letter, the Government of Ontario proposed eight common issues about breach of fiduciary duty and about the patients’ claim in negligence. There are no other causes of action, no Charter questions, and no damage calculations questions.

[73] The Plaintiffs rejected the Government’s proposal and continued to pursue a class action not limited to the MAP Program.

E. Facts

1. The Oak Ridge Division

[74] In the 1940s and 1950s, Maxwell Jones, a British psychiatrist at the Henderson Hospital in Surrey England, introduced the idea of a “therapeutic community” as a means to treat the seriously mentally ill. One of the central tenets of a therapeutic community is that a group of patients share responsibility for each other’s treatment with the hospital’s professional mental health care practitioners. In the immediate case, all of the experts from both sides agreed that there is nothing inherently wrong with a therapeutic community. Group therapy and therapeutic communities continue to be used to this day in providing mental health care. In the immediate case, all of the experts agreed that a therapeutic community is not per se below the standard of care for treating the mentally ill.

[75] The treatment mode of a therapeutic community was, however, egregiously misused at Oak Ridge Division, a division of the Mental Health Centre in Penetanguishene, Ontario. Whether the therapeutic community at St. Thomas Psychiatric Hospital deserves the same condemnation as Oak Ridge is the subject of the Plaintiffs’ proposed class action.

[76] Oak Ridge opened in 1933. It was a Schedule 1 psychiatric facility designated under Ontario’s Mental Health Act. Oak Ridge was administered by the Ministry of Health, a Ministry of the Government of Ontario. After it opened, for three decades, it was essentially little more than a prison for insane persons who had violated the criminal law. Typically, the patients of Oak Ridge had extensive criminal records that included violent crimes including abduction, pedophilia, rape, assault, and murder. The patients detained at Oak Ridge suffered from a variety of psychiatric illnesses, including personality disorders, what was then known as schizophrenia, sexual deviation, and organic brain disorders. Until the 1960s, Oak Ridge focused on controlling not curing its inmates. Between 1966 and 1983, Oak Ridge was the only custodial facility in Ontario for the treatment of dangerous or unmanageable mentally ill patients. It was a maximum-security institution.

[77] Dr. Barry Boyd was the Superintendent or Officer in Charge of Oak Ridge Division from 1960-1974, and its Medical Director from 1974 to 1978. He established the Social Therapy Unit at Oak Ridge. Dr. Boyd hired Elliott Thompson Barker and Dr. Gary J. Maier to operate the Social Therapy Unit (“STU”) at Oak Ridge. At Oak Ridge, Dr. Barker developed intensive therapy programs to treat patients. His programs utilized among other techniques: (a) solitary confinement; (b) group confinement in close quarters; (c) sensory deprivation; (d) physical force and constraint; (e) discipline and punishment; (f) the administration of hallucinogens and delirium-producing drugs, including LSD (lysergic acid diethylamide, a drug that produces hallucinations, delusions, and psychotic behaviour); and (g) brain-washing techniques developed by the CIA (Central Intelligence Agency) in the United States.

[78] At Oak Ridge, there were three main forensic psychiatric programs: (a) DDT (Defence Disruptive Therapy); (b) the Capsule Program (Total Encounter Capsule Program); and (c) the MAP Program (Motivation, Attitude, Participation Program). The DDT was a program where the patients were treated with mind-altering drugs to break down their defences to treatment.[^5] The Capsule Program was a program where the patients were treated by being placing naked in cells in harsh conditions for group encounters for days at a time. The MAP Program was a form of re-education that involved regimen, study, discipline, and punishment – a lot of punishment.

[79] Under Oak Ridge Division’s MAP Program, the patient lived under a set of rules and was required to study papers and write examinations on interpersonal communication. The patient was not permitted to leave the program unless he had completed 14 days without unauthorized talking or movement. A disruptive patient at Oak Ridge Division was forced to sit on a bare terrazzo floor with his feet straight out in front of him in the attention position. His hands would be either cuffed or placed in front. He was confined to a space of approximately three square feet in which he would be allowed to move only four times during a four-hour session. Standing was not permitted, and failure to comply with the non-movement orders and other directives resulted in the individual being verbally confronted, heavily sedated with Nozinan or Largactil, put in restraints, or placed in solitary confinement for days at a time.

[80] In the immediate case, all the experts from both sides agreed that Oak Ridge Division was an abomination. The reprehensive, immoral, and unlawful treatments at Oak Ridge culminated in Justice Morgan’s decision and damages awards that totalled approximately $10 million in the aggregate for 27 of 28 plaintiffs in Barker v. Barker,[^6] a decision that was varied by the Ontario Court of Appeal. The legal history of Barker v. Barker is described later in these Reasons for Decision.

2. The St. Thomas Psychiatric Hospital’s PST Unit

[81] Six years after the opening of Oak Ridge Division, the St. Thomas Psychiatric Hospital opened in 1939 under the supervision of the Government of Ontario’s Ministry of Health pursuant to the Mental Hospitals Act.[^7] It was a treatment facility that also had a forensic unit. At the St. Thomas Psychiatric Hospital, there were ten inpatient programs, which included a program for alcohol addiction, a geriatric program, and a program for emotionally disturbed and/or developmentally delayed adults. St. Thomas Psychiatric Hospital was not initially designated as a facility for the custody and treatment of dangerous or unmanageable mentally ill patients involved in the criminal justice system.

[82] In the mid-1970s, the Government of Ontario, made a decision to close a number of hospitals, including St. Thomas Psychiatric Hospital. At that time, James Wilson was that hospital’s Administrator, and Dr. P.D. Gatfield was a Unit Director at the hospital. They devised a plan to keep St. Thomas Psychiatric Hospital open. Mr. Wilson and Dr. Gatfield persuaded the Ontario Government to open a medium-security psychiatric facility at St. Thomas Psychiatric Hospital and the first female forensic psychiatric unit. Throughout the proposed class period, the hospital was the only medium-secure forensic program in Ontario open to women who were unfit to stand trial or who were not guilty by reason of insanity (“NGRI,” since 1992 referred to as “not criminally responsible”).

[83] In pursuance of Mr. Wilson’s and Dr. Gatfield’s plan, St. Thomas Psychiatric Hospital staff visited Oak Ridge on February 14 and 23, 1977. On February 24, 1977, Mr. Wilson wrote to the Oak Ridge Division’s Administrator. Mr. Wilson identified four patients that he thought could be used to implement a psychiatric program at St. Thomas Psychiatric Hospital. Mr. Wilson’s and Dr. Gatfield’s plan was to import some patients from Oak Ridge to establish a therapeutic community. The plan would borrow ideas from the practices employed at Oak Ridge. Dr. Gatfield became the first Unit Director of the new forensic psychiatry treatment program at St. Thomas Psychiatric Hospital. Thus, in the late 1970s, the St. Thomas Psychiatric Hospital opened a forensic psychiatric program that included a co-educational medium-security facility. The fact that the unit would be co-ed was an innovation.

[84] One of the identified patients from Oak Ridge was Eldon Hardy, and he was transferred to St. Thomas Psychiatric Hospital. Dr. Gatfield rationalized that Mr. Hardy’s transfer was productive because Mr. Hardy was familiar with the social therapy unit at Penetanguishene, and his “expertise” could be used at St. Thomas Psychiatric Hospital.

[85] The majority of the patients admitted into the forensic unit, the PST Unit, were persons NGRI. The patients were diverse in terms of family background, socio-economic status, and education. They presented with a combination of psychiatric disorders, personality disorders, and addiction issues. Many had committed serious and violent offences, and they often posed dangers to themselves and other patients. Most patients in the PST Unit at St. Thomas Psychiatric Hospital were detained under a warrant of the Lieutenant Governor in Council. These warrants were reviewed by the Ontario Review Board. A few patients were admitted to the forensic program pursuant to an order under the Mental Health Act or were admitted for a court-ordered competence assessment for 60 days under a Warrant of Remand. Patients could also admit themselves voluntarily.

[86] Apart from the very few patients who were voluntarily admitted, the patients admitted to St. Thomas Psychiatric Hospital were admitted because the Review Board’s risk assessment was that the patient required to be housed in a medium-secure setting. (Oak Ridge Division admissions were for patients that required a maximum-security facility.)

[87] Patients at St. Thomas Psychiatric Hospital who required a medium-secure placement would be placed in either the PST Unit or the Activity Treatment Unit (“ATU Unit”). These units were on different floors with double locked doors. Patients who were actively psychotic were excluded from the PST Unit. With a revised class definition, the Plaintiffs’ proposed class action is about the PST Program in the PST Unit. There were 429 patients that were detained in the PST Unit for psychiatric treatment during the class period.

[88] The Plaintiffs’ proposed class action concerns the activities in the PST Unit between 1976 and 1992. There were 429 patients treated in the PST Unit between 1976 and 1992. The 1992 date marks when St. Thomas Psychiatric Hospital adopted a new patient model that emphasized individual patient treatments.

[89] In 2001, St. Thomas Psychiatric Hospital ceased all operations as a provincially run psychiatric hospital, when the hospital was divested to St. Joseph’s Health Care London, a private institution.

[90] The PST Unit was an unsafe place for the female patients. They had little privacy and were vulnerable to physical and sexual assaults from the male patients with whom they shared the PST Unit’s wards. The PST was a co-ed ward, where patients slept in dormitory style “bed bays” with an entryway, but no door, making the women’s sleeping quarters accessible to male patients at any time. Bathrooms and showers on the ward were co-ed.

[91] On this motion, there is some basis in fact to conclude that while there were the safeguards in place to protect the patients from assaults and sexual assaults, the safeguards in place to protect any of the patients in the PST Unit were inadequate. There is, however, nothing factually in common with any of the assaults and there is a wide variety of sexual misbehaviour. For example, Ruth Atkin said that she was harassed by a male patient-teacher who made unwanted sexual advances and she complained about harassing correspondence that she received from a discharged male patient after he had left St. Thomas Psychiatric Hospital. Ms. Banman says that she was raped while sedated. Ms. Bark was sexually assaulted by another patient in the PST Unit. However, in interviews broadcast by the CBC, former male patients say they had consensual sexual relationships with female patients at St. Thomas Psychiatric Hospital.

3. The Day-to-Day Operation of the PST Unit

[92] In the immediate case, the evidence is that the PST Unit operated in a communal way in which roles were assigned to the mental and physical health care practitioners and roles were assigned to the mentally ill patients detained in the PST Unit. The patients were attended to by nurses, physicians, psychiatrists, psychologists, social workers, occupational therapists, recreational therapists, and vocational workers. Nursing staff were present at all times, and observed the patients at night.

[93] One of the major allegations made against the Government of Ontario is that there was little to no, and certainly not enough, supervision and control of the roles assigned to the patient-teachers. The allegation is that incapable persons were given responsibilities that they were not qualified to handle. Although the Government argues that the hospital met the standard of care for supervision, there is some basis in fact for the allegation that the supervision was inadequate and that health care tasks were assigned that ought not to have been assigned.

[94] In the PST Unit, committees were established. The patients in the PST Unit were given responsibility in managing their therapeutic community through the committee structure. The Plaintiffs submit that the participation of the patient-teachers was integral in making treatment decisions and in what the Plaintiffs describe as punishment decisions. The Plaintiffs submit that the patient-teachers were not equipped for their roles. They submit that the patient-teachers received wholly inadequate training, but the Plaintiffs’ main point is that the patient-teachers should not have been given these roles. There is some basis in fact for these allegations.

[95] The PST Unit had a Treatment Committee. This Committee was comprised of staff and five or six patients. The Treatment Committee made recommendations regarding a patient’s status, participation in ward activities, therapies available on the unit, whether a patient should be restrained or secluded, and whether they needed an observer throughout the day or evening. The Plaintiffs submit that too much authority was given to the patients on the committee and that the patients made treatment and punishment decisions. The Government of Ontario submits that it was the staff members who determined whether the recommendations of the Committee should be implemented. Further the Government submits that only physicians could prescribe medication and restraints and that seclusion could only be actioned by the staff member on the Treatment Committee if a physician had already made a standing order allowing restraints or seclusion for that particular patient.

[96] The PST Unit had a Referral Committee. This Committee made decisions about whether a patient may have violated ward rules and whether the patient should be referred to the Clarification Committee.

[97] The Clarification Committee investigated referrals and determined if a rule violation had occurred, in which case, the matter would be directed to the Sanction Committee.

[98] The Sanction Committee determined the punishment, or as the Government of Ontario would have it the “negative reinforcement,” for infractions of the ward rules. Sanctions for infractions of ward rules included: (a) communication bans (preventing a patient from speaking to those outside the PST Unit; (b) “strip status” (depriving patients of personal belongings or even their clothes); and (c) imposing extra ward duties.

[99] The Staff Patient Liaison Committee reviewed the decisions of other committees and determined the level of weekly privileges for patients.

[100] The Plaintiffs submit that the patient-teacher role was inappropriate, dysfunctional, negligent, cruel, damaging, irresponsible, and an unlawful delegation of the Defendants’ own therapeutic responsibilities. The Plaintiffs allege that the PST Program was not therapeutic. The Plaintiffs alleged that the patient-teachers used their virtually unchecked powers to cause physical and psychiatric harm to their fellow patients. The Plaintiffs submit that the victims of the PST Program did not consent to this treatment because they never gave a voluntary fully informed consent to treatment. There is some basis in fact for these allegations.

[101] Group therapy was a part of the patients’ daily routine. When a patient was admitted into the PST Unit at St. Thomas Psychiatric Hospital, he or she was given a manual providing information about group therapy and then a test was administered to determine whether the patient had absorbed the information and could participate in group therapy. If the patient passed the group therapy test, the treatment team determined if the patient should join group therapy.

[102] The PST Unit had “group therapy sessions,” and these sessions were often confrontational. Patients were confronted by the health care practitioners and the patient-teachers about their behaviour and psychiatric issues. The evidence from the Plaintiffs and Mr. Hardy was that patients were berated, insulted, provoked, and agitated relentlessly by other patients, often for hours at a time at the group therapy sessions.

[103] Dr. Swaminath deposed that the mental health care providers, the staff at St. Thomas Psychiatric Hospital, supervised all group therapy sessions and discouraged and prohibited inappropriate behaviour by the patients during group therapy. The Plaintiffs, however, submit that the evidence shows that it was the patients and not the staff who were in charge of treating the patients detained in the PST Unit.

[104] From its inception until November 1983, the PST Unit had its own version of the MAP Program. The so-called “patient-teachers,” all of whom were male until 1983, decided who should be subject to the MAP Program. The MAP Program could involve loss of privileges, restraints, clothing restraints, seclusion, solitary confinement, positional stress, which the Plaintiffs describe as torture.

[105] To graduate (escape?) from the MAP Program, a patient had to comply with its rules for 14 consecutive days. Violating any of the rules would result in the cycle beginning anew. Patients could be kept in the program for prolonged periods of time. There is evidence that the patient-teachers abused their positions of power and authority. Ms. Banman deposed that the threat of the MAP Program was ever present and that she was always scared of being sent to the MAP Program for any reason at all.

[106] Although there is evidence in the immediate case that the PST Unit was appropriately staffed and supervised and evidence that except possibly in individual cases the doctors, nurses, staff, met the standard of care for a forensic psychiatric hospital operating a therapeutic community, there is also in the immediate case, some basis in fact for the allegation that inappropriate therapeutic responsibilities may have been assigned to patients and that there were breaches of fiduciary duty and a failure to meet the standard of care for a forensic psychiatric hospital.

[107] In any event, there is some basis in fact that the MAP Program and the PST Program at St. Thomas Psychiatric Hospital were treatment programs for which the Government of Ontario may be liable, although individual assessments of damages would be required.

4. Ruth Atkin’s Story

[108] On December 21, 1981, when she was 21 years old, Ruth Atkin was involuntarily admitted to St. Thomas Psychiatric Hospital pursuant to a warrant of the Lieutenant Governor. She remained at the hospital for 12 years, until 1993. She passed away on April 2, 2023. Before her death, Ruth Atkin was assisted in this litigation by her sister and litigation guardian, Ellen Atkin, who now serves as the representative of Ruth’s estate, which is a proposed Representative Plaintiff in this action. Ellen Atkin is also a proposed Representative Plaintiff for the Family Class in this action.

[109] Ruth Atkin was placed in the PST Unit on multiple occasions. Her first admission lasted one year. During this admission, she was subjected to the MAP Program for over 41 days. Ruth was harassed by a male patient-teacher who made unwanted sexual advances. Throughout her life and until her death, Ruth Atkin suffered significant psychiatric harm as a result of her experiences at St. Thomas Psychiatric Hospital.

[110] Ruth Atkin was also interviewed for The Fifth Estate documentary. Her sister, Ellen Atkin did not appreciate what Ruth had endured in the PST Program until she watched the documentary when it aired in March 2021, after which she decided to pursue legal action on Ruth’s behalf.

5. Martha Banman’s Story

[111] In December 1977, when she was 17 years old, Ms. Banman was involuntarily admitted to St. Thomas Psychiatric Hospital. She was there for nine months. She was placed in the co-ed forensic ward overseen by Dr. Gatfield. She was twice subjected to the MAP Program, the first placement for six weeks and the second for a shorter duration. She was sexually assaulted while at the hospital by a patient-teacher. She was molested on numerous occasions. She was raped in a seclusion room. She continues to this day to suffer significant psychiatric harm as a result of her experiences at the hospital.

[112] Ms. Banman deposed that she did not appreciate that the PST Program was wrong until she was interviewed by a reporter for the CBC’s The Fifth Estate documentary, “Psychiatric Treatment or Torture? The Oak Ridge Experiment” It was the reporter who suggested to Ms. Banman that she seek legal advice.

6. Louise Bark’s Story

[113] Louise Bark (“Louise”) was involuntarily admitted to St. Thomas Psychiatric Hospital in March 1985, pursuant to a physician’s certificate under the Mental Health Act when she was 25 years old. Ms. Bark had not committed any crimes and her admission was as a consequence of her mental health. She spent the entirety of her ten-month admission in the PST Unit, under the supervision Dr. Swaminath, who was also her treating physician.

[114] Ms. Bark deposed that while in the PST Unit, she was subjected to confrontation group sessions. She said that she was coerced into participating in a 24-hour “marathon group”, during which the patients in the group verbally attacked, confronted, and humiliated her by, among other things, attempting to make her wear diapers because she was acting like a baby. Having been sexually abused before her admission to the PST Unit, she experienced distress participating in other patients’ confrontations, where graphic accounts of horrific sexual assaults were shared with the group. These sessions contributed to Ms. Bark’s PTSD. She attempted to leave the marathon group, but she was restrained by other patients and forced to remain. She was threatened with the use of restraints if she refused to participate. Ms. Bark was filmed during the group, without her consent and despite pleading not to be filmed. While a patient in the PST Unit, Ms. Bark was attacked and threatened by a patient who before admission to St. Thomas Psychiatric had decapitated someone.

[115] Ms. Bark’s experience with confrontation sessions and the marathon group and her time at the PST Unit were traumatic, caused her long-term stress and anxiety, and worsened her mental health. Today her memories evoke intense feelings of anxiety.

[116] Ms. Bark deposed that she did not comprehend what had happened to her at St. Thomas Psychiatric Hospital until she obtained her medical files. She first requested her medical files from the hospital in August of 2014; however, at the time, the cost of obtaining the records were prohibitively high, so she was unable to obtain them. She ultimately did not obtain her medical files from St. Thomas Psychiatric Hospital until 2022.

7. Changes to the PST Program

[117] In 1980, because of patient complaints, Drs. Coulthard and Paitich were commissioned to investigate and report about the PST Unit. The “Coulthard/Paitich Evaluation” recommended the termination of the punitive features of the MAP Program.

[118] The Coulthard/Paitich Report criticized the therapeutic community program, particularly its punitive elements and use of restraints. The authors of the report noted that failure to express feelings in group psychotherapy did not deserve a punitive approach and that psychiatric hospitals were not authorized to administer severe punishment. They noted that aspects of the program were humiliating. Dr. Paitich criticized the use of restraints to immobilize a patient and to prevent the patient from leaving a group therapy session, and he concluded that absent continued disturbed behaviour, mattress restraints should not be used in a manner that prevents comfortable sleeping posture, or overnight.

[119] After the Coulthard/Paitich Report was issued, the MAP Program was disbanded by November 1983. The Plaintiffs allege that the MAP Program by that name may have ended but that its elements of Motivation, Attitude, and Participation were both in word and deed continued until 1992 as a part of the PST Program. There is some basis in fact for this allegation.

[120] Although the MAP Program may have been disbanded, a therapeutic community model continued. It is a highly contested factual issue whether the continued model met the standard of forensic psychiatric care of its era.

[121] In 1983, the Mental Health Act introduced the Psychiatric Patient Advocate Office and patient advocates were embedded in psychiatric hospitals. The patient advocates were empowered to review policies and programming, to meet with patients, and to provide advice on rights and regarding treatment and programming and to bring concerns to the attention of hospital administrators.

[122] Dr. Galbraith did not know about the MAP Program - so-called - until this litigation. In the summer of 1984, he became the Medical Director of St. Thomas Psychiatric Hospital. He was the Chair of the Professional Advisory Committee and the Medical Advisory Committee, and he was responsible for the review and evaluation of programs and the health care being provided at the hospital.

[123] In February of 1985, Dr. Swaminath became Director of the Forensic Unit at St. Thomas Psychiatric Hospital. As Medical Director and Unit Director, respectively, Dr. Galbraith and Dr. Swaminath had overall responsibility for the content of the programming on the PST Unit. Dr. Swaminath was responsible for the supervision of all programs within the PST Unit.

[124] With the discontinuation of the MAP program, the role of patient-teachers diminished. In 1989, a task force recommended changes to the forensic programs at St. Thomas Psychiatric Hospital, and the PST Unit began transitioning out of the therapeutic community treatment model due in part to the development of cognitive behavioural therapy and dialectic behavioural therapy.

[125] What was known as the MAP program was administered in the PST Unit between 1978 and 1983. Between January 1, 1978 and December 31, 1983, 232 patients were admitted to the PST Unit for at least two weeks. Of these 232 patients, 118 were placed in the MAP Program. Of the MAP Program patients, 75 (64 %) were female.

[126] The Plaintiffs’ some-basis-in-fact evidence, which is sufficient for present purposes, however, is that the PST Unit’s therapeutic community continued until 1992, which defines the end point of the class period. It was around this time that the transition to an individualized model of care totally displaced the therapeutic community model.

8. Punishment or Negative Reinforcement and the PST Program

[127] Despite the changes and modifications over the years, the use of punishment or negative reinforcement at St. Thomas Psychiatric Hospital persisted well into the late 1980s, including after the hospital’s adoption of the 1985 Use of Restraints Policy.

[128] Under the Mental Health Act, St. Thomas Psychiatric Hospital was authorized to use restraints when a patient posed a risk to themselves or others, and the hospital had a duty to use restraints to limit such harm. At St. Thomas Psychiatric Hospital, there was an established restraints policy designed particularly for the PST Unit. The policy for the PST Unit set out the circumstances in which restraints were to be used, how they were to be used, and how their use was to be documented and monitored. Medical records reveal that the use of restraints was ordered by clinical staff. The role of the patient-teachers in restraint decisions is one of the hotly contested issues in the case.

[129] As written, the restraints policy appears to be acceptable. The policy states restraints “must always be used in a protective or therapeutic way – never in a punitive manner.” Dr. Bradford and Dr. O’Shaughnessy conceded that was a reasonable purpose for using restraints. The 1985 Restraint Policy specifies that a protocol must be followed if either restraints or seclusion are ordered by clinical staff. Various types of restraints required a doctor’s order, including cuffs with locks and belts, metal hand cuts, mattress restraints, seclusion, and chemical restraints.

[130] Although all of the experts agreed that restraints and seclusion may be appropriately used in a psychiatric setting and that restraints should not be used punitively, nevertheless, there is a major controversy between the parties as to whether the 1985 Restraint Policy met the standard of care by permitting the involvement of patients on the Treatment Committee and about whether the policy - in practice - met the standards of care. Dr. Bradford opined that tying a patient to a mattress was not therapeutic, and Dr. O’Shaughnessy opined that tying a patient to a mattress was entirely inappropriate.

[131] The Government of Ontario submitted that the propriety of the use of restraints could only be assessed and determined through careful review of all of the circumstances surrounding the individual use of restraints, including reviewing clinical records. It submitted that the propriety of restraints cannot be determined on a class-wide basis.

[132] Both parties’ experts agreed that restraints could be used for safety purposes but not as a form of punishment. Since restraints can be used for punishment, it is obvious that a case-by-case analysis is required to determine for what purpose a patient was being restrained.

9. The Experts’ Opinion Evidence

[133] It was Plaintiffs’ expert Dr. Bradford’s opinion that until at least 1988, the PST Unit did not meet the standard of care for a forensic psychiatry hospital. He opined that:

a. The PST Program deviated from conventional psychiatric and medical treatment and was experimental. It was the antithesis of the standard of care for a conventional therapeutic community.

b. As an experimental program, the PST Program did not meet the necessary prerequisites of: (a) having a theoretical justification; and (b) some evidence of potential benefit that outweighed the risks.

c. Drs. Galbraith and Swaminath breached the applicable ethical norms and the professional standards with respect to medical treatment and medical experimentation involving vulnerable, detained individuals.

d. An individualized analysis of the patients’ experiences in the PST Unit was not required to determine whether the PST Program complied with the psychiatric and ethical standards of the time.

e. It was inappropriate and unethical to operate the PST Program, for anyone, regardless of diagnosis.

f. There was no medical merit to the PST Program regardless of diagnosis.

g. Every patient treated by the PST Program would have suffered harm, the extent of which would depend upon individual vulnerability factors, such as personal characteristics, age, gender, and diagnosis.

h. The punishment of mentally ill patients and their coerced treatment in experimental programs were unacceptable and inconsistent with the standard of care and the objectives of the forensic system in the 1970s to the 1990s.

[134] Dr. Bradford also opined that the Defendants breached their professional duties and the standard of care:

a. by failing to obtain free and informed consent and that a coercive environment can prevent patients from providing genuine consent;

b. by failing to disclose the experimental nature of the program and the possible risks weighed against the benefits, which meant that the patients had not given an informed consent to treatment;

c. by delegating to patient-teachers or non-professional staff the responsibility to obtain a consent to treatment; and,

d. by subjecting patients to a coercive experimental program.

[135] Dr. Bradford opined that, patients may only be experimented upon after the experiment receives ethical and scientific approval and following disclosure to the patient not only the known risks and benefits of a particular treatment, but also the limits of the physician’s knowledge of such risks and benefits.

[136] Dr. Bradford testified that solitary confinement, coercion, and coercive behaviours result in trauma-related symptomology, such that the majority of people are going to get some trauma-related symptoms. He said that all patients exposed to the MAP Program would have suffered some level of trauma.

[137] The Plaintiffs’ expert Dr. O’Shaughnessy opined that:

a. the treatments, in particular the MAP Program, and the various committee structures as well as the punitive use of restraints and isolation was not therapeutic or a recognized beneficial psychiatric intervention and was well below the standard of care;

b. the delegation of the responsibilities of physicians and administrators to mentally disordered patients, including violent offenders, was entirely inappropriate, particularly with respect to young female patients and that the treatment provided at the PST Unit was far below the standard of care of any other psychiatric program at the time;

c. the responsibilities of physicians do not allow for delegation to patients’ treatment decisions and to do so was unacceptable and below the standard of care;

d. the punishment of mentally ill patients and coerced treatment in experimental programs was unacceptable and inconsistent with the standard of care and the objectives of the forensic system in the 1970s to the 1990s; and,

e. exposure to the coercive PST Program would likely lead to some level of psychological distress or harm in the majority of persons exposed, and for those patients exposed to the MAP Program one would expect a higher rate of severe psychiatric sequelae compared to a single event trauma, like an assault.

[138] Dr. O’Shaughnessy also opined that:

a. while the severity or degree of the harm suffered by each patient of the PST Unit may vary, vulnerable individuals are more likely to develop psychiatric sequelae, and that the following three variables assist in predicting the degree or severity of psychological harm experienced by those subjected to traumatic events, such as the putative Class Members:

i pre-trauma variables: such as vulnerability issues, including being female, having a history of psychiatric or emotional difficulties, and coming from a dysfunctional background, all predict for much greater psychiatric sequelae following a traumatic event;

ii trauma variables: (a) the extent of the traumatic event itself; (b) whether the traumatic exposure is a single event or repeated events; (c) the severity of the sexual assault; and (d) events that cause great fear or physical injury, the higher the occurrence of PTSD (post-traumatic stress disorder); exposure to MAPP and a general coercive environment would predictably result in a higher rate of severe psychiatric sequelae; and

iii post-traumatic variables: interventions, such as sufficient social and psychological support, trauma-focused treatment, and removing individuals from the traumatic environment, would predictably result in better outcomes for the patient.

[139] The Government of Ontario challenged much of Dr. Bradford’s and Dr. O’Shaughnessy’s opinions as based on assumptions that did not accord with the actual facts. For instance, the Government argued that the experts’ opinion about the experimental nature of the PST Program was based on false assumptions supplied to them by the Plaintiffs’ lawyers. The Government criticizes the assumption that the programs at St. Thomas Psychiatric Hospital were slavishly based on the programs developed at the Oak Ridge Division. The Government points out that many elements of the PST Program and the MAP Program were unexceptional and well established practices in forensic psychiatric hospitals. The government repeatedly repeats that therapeutic communities per se were and are not experimental.

[140] Dr. Chaimowitz, the Defendants’ expert witness, agreed in cross-examination that certain conditions or conduct can be inherently harmful to anyone exposed to it and that anyone subjected to torture or a degrading, cruel, or inhuman treatment would experience some base level of harm. Dr. Chaimowitz, however, did not find that there was any inappropriate treatment at St. Thomas Psychiatric Hospital.

[141] Unlike Dr. Bradford and Dr. O’Shaughnessy, Dr. Chaimowitz reviewed patient records and he opined that the group therapy on the PST Unit met the standard of care from 1984-1992, and was unlikely to be harmful. In his expert’s report, he stated:

This was a hallmark of a therapeutic community and was certainly not unethical or experimental. In my view, it did not breach the standard of care. It is also highly unlikely that patients would have been harmed as a result of patient involved group therapy given the oversight and monitoring by treatment staff. Certainly, some patients find talking in group therapy to be difficult or unpleasant, but it is not harmful. Group therapy has been a feature of psychiatric treatment for many years.

[142] Dr. Chaimowitz’s opined that:

a. Group therapy was a conventional form of treatment that met the standard of care.

b. Confrontation in group therapy is not inherently harmful.

c. An individualized analysis of each of the patient’s situations would be required to determine the liability issue of the standard of care of a forensic psychiatrist from 1984-1992, including informed consent, the prescription of medication, the use of restraints and seclusion, and the use of patient teachers.

d. The issue of consent and the issue of a patient’s ability to consent as opposed to having a substitute decision maker consent required an individualized analysis, taking into account the particular treatment at issue.

e. An individualized analysis of causation and damages would be required to determine whether a patient was harmed by a treatment or his or her experience at the psychiatric hospital.

10. The PST Program

[143] As noted above, the PST Unit adopted a therapeutic community model. While the PST Unit’s PST Program was inspired by the Oak Ridge program, it was unprecedented in that no other psychiatric facility in Ontario housed both male and female patients in the same forensic unit.

[144] The PST Unit adopted its own model for a therapeutic community. The Capsule Program and DDT (Defence Disruptive Therapy) from the Oak Ridge Division were not adopted in the PST Unit at St. Thomas Psychiatric Hospital. The PST Unit developed its own version of the MAP Program.

[145] Pausing in the description of the factual background, for the present purposes of the certification motion, it is very important, indeed it is critical to note, that the Plaintiffs’ claim is about a PST Program in the PST Unit that is inclusive of but not limited to the MAP Program as it was adopted at St. Thomas Psychiatric Hospital. Alas, it must be observed that the Plaintiffs and the Government of Ontario are like battleships passing in a foggy night about the nature of the so-called PST Program.

[146] The Government’s position is that there was no PST Program at St. Thomas Psychiatric Hospital. The Government asserts that there was a PST Unit at St. Thomas Psychiatric Hospital operating as a therapeutic community where a MAP Program was available for some patients, but there was not a PST Program, as such. The Government’s argument is that historically and to this very day, a therapeutic community is a proper model for a forensic psychiatric institution and that the PST Unit’s MAP Program and its other therapeutic community programs did not violate the standard of care for forensic psychiatric institutions, although there may have been individual breaches of the standard of care.

[147] The Government describes the MAP Program at St. Thomas Psychiatric Hospital as involving “negative reinforcement,” which is the withdrawal of something unpleasant to reinforce good behaviour as opposed to punishment, which is the imposition of something undesirable to correct bad behaviour.

[148] Notwithstanding the Government of Ontario’s argument, in my opinion, at this juncture of the proceedings, there is some basis in fact for concluding that there was a PST Program at St. Thomas Psychiatric Hospital, that was inclusive but not exclusive of the MAP Program. Notwithstanding the Government of Ontario’s submissions to the contrary, there is some basis in fact that: (a) the PST Unit had a PST Program encompassing but not limited to the MAP Program, and (b) the PST Program itself was a treatment program, i.e., a system or a model that had component parts some of which like the MAP Program were programs and systems themselves. The PST Program was a therapeutic community, and a therapeutic community is a program or system for the delivery of psychiatric treatment. At this juncture, there is some basis in fact that St. Thomas Psychiatric Hospital’s version of a PST Program, of which the MAP Program was a part, were coercive punishment systems and not just psychological systems employing negative reinforcement. There is some basis in fact that the legally offensive aspects of the programs continued past 1983 until 1992.

[149] As noted above, all the experts agreed that a therapeutic committee is not per se objectionable or culpable; however, in my opinion, the Government’s submission is not responsive and actually begs the question of whether the therapeutic community model that was actually adopted by the PST Unit at the St. Thomas Psychiatric Hospital was as damnable as the therapeutic community model used at Oak Ridge. That issue remains to be determined on its merits.

11. Class Size

[150] During the proposed class period, 1976 to 1992, there were 790 patients in the forensic program at St. Thomas Psychiatric Hospital of which 471 (60%) were male. In the PST Unit part of the forensic program, as noted above, there were 429 patients between 1976 and 1992, and of these, 118 patients participated in the MAP Program. Of the 429 patients in the PST Unit approximately 50% were identified as male and approximately 50% were identified as female.

[151] Some unknown number of the 429 patients are now deceased and would be represented by estate representatives, if any.

12. The Catalyst for a Class Action about St. Thomas Psychiatric Hospital

[152] On March 4, 2021, the CBC news television program, The Fifth Estate, broadcast a documentary: “Psychiatric Treatment or Torture?” The documentary exposed the connection between the Oak Ridge Division and St. Thomas Psychiatric Hospital, and on October 27, 2021, the Plaintiffs commenced their proposed class action.

13. Barker v. Barker

[153] On October 25, 2000, the litigation that came to be known as Barker v. Barker commenced. This litigation concerned the psychiatric treatment programs at the Oak Ridge Division. In the Barker v. Barker litigation, the MAP Program, and also the Capsule Program and DDT, were found to be culpable abominations of psychiatric health care. The juridical history of Barker v. Barker is set out in this section of these Reasons for Decision. As foreshadowed above, the Barker v. Barker litigation features prominently in this certification motion and in this proposed class action. It does so for at least three reasons.

[154] First, as the above factual narrative reveals, the history, development, and nature of the treatment programs at St. Thomas Psychiatric Hospital is connected to the forensic psychiatry programs developed at Oak Ridge Division. The subject matter of Barker v. Barker was the treatment programs at Oak Ridge Division. The claims included breach of fiduciary duty, battery, negligence and contravention of common law principles and international law norms relating to the use of torture and cruel, inhumane, or degrading treatment and punishment. The plaintiffs in Barker v. Barker also alleged there was a lack of informed consent. They alleged that patients at Oak Ridge were forced to participate in experiments that involved both psychological and physical torture. Examples included placing patients nude in a soundproof, windowless, continuously ventilated room, eight feet by ten feet, often cuffed to one another for periods of up to two weeks; and administering to patients combinations of hallucinogenic, delirium-producing, psychosis-producing or mind-altering drugs.

[155] Second, some of the factual findings in Barker v. Barker may establish (and this is a matter to be determined later) issue estoppels as against the Government of Ontario. And certainly, as a matter of stare decisis, the legal issues determined in Barker v. Barker will inform the legal findings in the immediate case. The Plaintiffs would have it that the MAP Program at St. Thomas Psychiatric Hospital was virtually identical to the MAP Program at Oak Ridge. There is, however, no basis in fact for this equivalency. The names of the programs were identical, and the programs were both therapeutic community models, but they were not equivalent models. It remains to be determined whether the PST Program and the MAP Program at St. Thomas Psychiatric Hospital deserve the same judicial fate that was bestowed in Barker v. Barker.

[156] Third, Barker v. Barker began as a proposed class action and was converted into a joinder action. In the immediate case, the Government of Ontario identifies the joinder action procedure employed in Barker v. Barker as the preferable procedure to resolve the causes of action of the putative class members.

[157] Because of the prominent role played by Barker v. Barker in the immediate case, it is necessary to describe in more detail the legal saga of Barker v. Barker which culminated in Justice Morgan’s approximately $10.0 million judgment against the Government of Ontario.

[158] Shauna Taylor, formerly Vance Egglestone, was an involuntary patient at the Mental Health Centre in Penetanguishene, Ontario, where she was originally detained in January 1976, at the Oak Ridge Division in the Social Therapy Unit.

[159] On October 25, 2000, Ms. Taylor, then Mr. Egglestone, commenced a proposed class action on behalf of: individuals who were incarcerated at the Oak Ridge Division between 1968 and 1979 and who participated in (a) the Motivation, Attitude, Participation Program (the "MAP Program"), (b) the Total Encounter Capsule Program (the "Capsule"), or (c) the Defence Disruptive Therapy ("DDT"). The action was against Dr. Elliott Thompson Barker, Dr. Gary J. Maier, and the Government of Ontario. Drs. Barker and Maier oversaw the Social Therapy Unit, and they designed the MAP Program, the Capsule, and the DDT.

[160] In 2001, Justice Cumming, who was case managing the action, added Danny Joanisse as a co-Plaintiff. [^8] When a teenager, Mr. Joanisse had been detained as an involuntary patient at Oak Ridge.

[161] In 2003, Ms. Taylor and Mr. Joanisse moved for certification of their action as a class action. Justice Cullity, who had succeeded Justice Cumming as case manager judge, dismissed the motion. In declining to certify the proceedings, Justice Cullity found that although there were causes of actions and although there were common issues of law and fact, the Plaintiffs had not demonstrated that a resolution of those issues would advance the proceedings.[^9] His conclusion was based on the overwhelming importance and difficulty of the individual issues that would remain after any common issues trial, and the likely duplication of the evidence and fact-finding at such a trial when the individual issues came to be determined.

[162] In 2004, the Divisional Court affirmed Justice Cullity’s decision.[^10] Leave to appeal to the Court of Appeal was denied on May 18, 2005.

[163] In 2006, pursuant to s. 7 of the Class Proceedings Act, 1992, Ms. Taylor and Mr. Joanisse moved for an order permitting the action to continue as an ordinary action with an amended Statement of Claim that would join individuals from the putative Class Members as co-Plaintiffs. Justice Cullity granted the motion.[^11] In the reconstituted multi-plaintiff action, the Plaintiffs alleged that the medical treatment they received, which was known as social therapy, was unethical and illegal. They alleged that they were the subjects of experimentation and torture.

[164] The prosecution of the action then slowed for seven years. During this time, Rochon Genova LLP remained uncertain about whether there were others who might be joined as Plaintiffs. During this period, the lawyers for the parties negotiated about the production of medical records.

[165] In 2013, the Plaintiffs brought a motion to remove nine Plaintiffs and to add five additional Plaintiffs to the action. The Defendants objected to the joinder on the grounds that the claims were statute-barred. By this time, I had succeeded Justices Cumming and Cullity as the case management judge. I concluded that at that juncture of the proceedings, it could not be determined whether the claims were statute-barred, and I granted the joinder motion.[^12]

[166] On January 7, 2015, the Plaintiffs issued their Second Fresh as Amended Statement of Claim. In the reconstituted multi-plaintiff action, the Plaintiffs alleged that the medical treatment they received, which was known as social therapy, was unethical and illegal. The Plaintiffs stated that they were the subjects of experimentation and torture. In advancing their claim, among other international treaties, the Plaintiffs relied on the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, December 10, 1984, [1987] Can. T.S. No. 36 (entered into force 26 June 1987), which is part of Canada's international human rights obligations.

[167] The action proceeded to examinations for discovery and after the examinations, the Defendants, including the Government of Ontario, moved for a summary judgment on the issue of whether the Plaintiffs’ claims were statute-barred, and on June 1, 2017, I dismissed the Defendants’ motion.[^13] There was a humongous evidentiary record for the summary judgment motion, and I granted a notional cross-motion by the Plaintiffs for a partial summary judgment. I granted judgment for breach of fiduciary duty. I ordered a trial or additional summary judgment motions to prove victimization, harm, causation of harm and to quantify the individual Plaintiffs’ damages, if any.

[168] On March 20, 2018, the Court of Appeal held that I had gone too far procedurally, and the Court reversed my decision.[^14] I was removed as case management judge. The Barker action then proceeded to case management and a trial before Justice Morgan.

[169] The action was tried in 2019. The trial was bifurcated into liability and damages,[^15] and the trial continued into 2020. The plaintiffs brought a mid-trial motion to amend their Statement of Claim to rely on s. 16(1)(h.2) of the Limitations Act, 2002 (which was added to the Limitations Act in 2016); the motion was granted.[^16] There were other pre-trial and mid-trial evidentiary motions.[^17] The trial lasted 71 days. On June 25, 2020, Justice Morgan released his 1,329-paragraph decision on liability.[^18] On February 8, 2021, Justice Morgan released his 945-paragraph decision on damages.[^19] The aggregated damages award was approximately $9.6 million. The Plaintiffs were awarded the all-inclusive amount of $4.9 million in costs.[^20]

[170] Justice Morgan recognized that Barker v. Barker was not a class action. There was no class-wide claim of systemic liability. Rather, each plaintiff had brought an individual claim. Justice Morgan also recognized that the plaintiffs’ claims were not based on the design of the treatment programs but rather on the programs’ individualized effects on the individual plaintiffs. Justice Morgan held that the Government of Ontario and the physicians were liable for breach of fiduciary duty, including by subjecting the respondents to harmful procedures without a reasonable prospect of benefit and without informed consent. He dismissed the claims for intentional infliction of emotional distress but found that the Government and the physicians were liable for battery and assault. All three psychiatric treatment programs amounted to a non-consensual, non-trivial invasion of the patients’ bodily integrity, i.e., battery. The design, administration and implementation of the MAP Program amounted to an assault on all the patients including those who were never in MAP Program.

[171] The Defendants appealed Justice Morgan’s decision. The appeal was heard over four days. In a 317-paragraph judgment released on July 29, 2022, the Court of Appeal (Hourigan, Trotter and Zarnett JJ.A.) varied Justice Morgan’s judgment.[^21] The Court upheld awards for 25 of the 28 plaintiffs and reduced the damages awards of two plaintiffs. The Court set aside one plaintiff’s $1,000 award. The Court reversed the trial judge's findings on assault, and varied, in one respect, the trial judge's treatment of pre-judgment interest. In the aggregate, the plaintiffs were awarded general damages of $6,011,500, with individual awards ranging from $1,000 to $2.1 million. Excluding the two plaintiffs awarded more than $1.0 million, the average general damages award was $116,000. Eight plaintiffs were awarded less than $50,000 and six were awarded less than $10,000. Only five plaintiffs were awarded loss of income. One claim was dismissed altogether. The Court of Appeal awarded the Plaintiffs $516,553.35 for the costs of the appeal.[^22]

[172] Four of the 28 plaintiffs died before the trial commenced, another two died during the course of the trial after they had completed their testimony, and another two died while the trial decision was under reserve.

[173] Pausing here in the description of the litigation history of Barker v. Barker, it is notable and relevant to the immediate case that the Court of Appeal overturned Justice Morgan’s class-wide finding of assault. The Court held that he had erred in his application of the law of assault by not applying the imminence requirement and by assessing assault on a class-wide basis. The Court of Appeal stated at paragraph 185 of its judgment:

185. We also agree with the physicians' submission that the trial judge erred in finding that the existence of MAPP was an assault on all of the respondents. The trial judge erroneously concluded that the assault occurred on a class-wide basis when individual findings were necessary. […] Again, the liability of Dr. Barker and Dr. Maier appears to be tied, at least in part, to their design of the program, something the trial judge earlier said he would not base his findings upon. Moreover, missing from his analysis is any consideration of the critical imminence requirement.

[174] In August 2023, pursuant to the Solicitors Act[^23] and their retainer agreements, Rochon Genova LLP applied for court approval of the law firm’s retaining the costs awarded to the plaintiffs in addition to a contingency fee. Justice Morgan granted the request.[^24] The law firm received costs awards of $5,673,459.42 plus accrued interest. The firm’s total compensation for the action was $7,414,251. Unfortunately, for the firm, the $7.4 million fee for legal services was approximately $2.0 million dollars below the firm’s docketed hourly rate for their legal services.

[175] Barker v. Barker began in 2000 and ended 23 years later. There were at least 36 reported decisions including three decisions by the Court of Appeal for Ontario and a decision by the Supreme Court of Canada denying the Defendants’ applications for leave to appeal.

F. Certification General Principles

[176] With this procedural, factual, and evidentiary background, I turn now to whether the Plaintiffs’ action should be certified as a class action under the Class Proceedings Act, 1992 as it has been amended in 2020.

[177] The court has no discretion and is required to certify an action as a class proceeding when the following five-part test found in s. 5 of the Class Proceedings Act, 1992 is met: (1) the pleadings disclose a cause of action; (2) there is an identifiable class of two or more persons that would be represented by the representative plaintiff; (3) the claims of the class members raise common issues; (4) a class proceeding would be the preferable procedure for the resolution of the common issues; and (5) there is a representative plaintiff who: (a) would fairly and adequately represent the interests of the class; (b) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding; and (c) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

[178] On a certification motion, the question is not whether the plaintiff’s claims are likely to succeed on the merits, but whether the claims can appropriately be prosecuted as a class proceeding.[^25]

[179] The test for certification is to be applied in a purposive and generous manner, to give effect to the goals of class actions; namely: (1) to provide access to justice for litigants; (2) to encourage behaviour modification; and (3) to promote the efficient use of judicial resources.[^26] That said, in Pro-Sys Consultants Ltd v. Microsoft Corp.,[^27] the Supreme Court of Canada stated that although not a merits determination, certification was meant to be a meaningful screening device, that does not “involve such a superficial level of analysis into the sufficiency of the evidence that it would amount to nothing more than symbolic scrutiny”.

[180] For certification, the plaintiff in a proposed class proceeding must show “some basis in fact” for each of the certification requirements, other than the requirement that the pleading discloses a cause of action.[^28] The some-basis-in-fact standard sets a low evidentiary standard for plaintiffs, and a court should not resolve conflicting facts and evidence at the certification stage or opine on the strengths of the plaintiff’s case.[^29] Although the evidentiary burden on a certification motion is the low, i.e., the some basis in fact standard, that burden must be discharged by evidence that is admissible in accordance with the normal law of evidence.[^30]

[181] In particular, there must be a basis in the evidence to establish the existence of common issues.[^31] From a factual perspective, the plaintiff must show that there is some basis in fact that: (a) the proposed common issue actually exists; and (b) the proposed issue can be answered in common across the entire class, which is to say that the Plaintiff must adduce some evidence demonstrating that there is a colourable claim or a rational connection between the class members and the proposed common issues.[^32]

[182] To establish commonality, evidence that the alleged misconduct actually occurred is not required; rather, the necessary evidence goes only to establishing whether the questions exist and are common to all the class members.[^33]

[183] The some-basis-in-fact standard does not require evidence on a balance of probabilities and does not require that the court resolve conflicting facts and evidence at the certification stage and rather reflects the fact that at the certification stage the court is ill-equipped to resolve conflicts in the evidence or to engage in the finely calibrated assessments of evidentiary weight and that the certification stage does not involve an assessment of the merits of the claim and is not intended to be a pronouncement on the viability or strength of the action.[^34]

[184] Finally, by way of general principles, it should be noted that the 2020 amendments to the Class Proceedings Act, 1992, especially with respect to the preferable procedure criterion, require a recalibration of some of the aspects of the tests for certification. The amendments require more analytical rigour in the methodology used to determine whether an action should be certified as a class proceeding.

[185] As I shall explain in more detail below, the following methodology encapsulates the current analysis of the certification criterion; visualize:

a. The first analytical step is to determine what causes of action satisfy the cause of action criteria.

b. The second analytical step is to determine whether any of the certifiable causes of action are statute-barred on the face of the Statement of Claim.

c. The third analytical step is to determine whether there is some basis in fact for concluding that the class definition is satisfactory.

d. The fourth analytical step is to determine on a question-by-question basis whether each of the proposed common issue question is a meaningful common issue, i.e., is there a basis in fact for the proposed common issue question and does the question resonate in common for the class members in a way that usefully advances the litigation?

e. The fifth analytical step is to assemble all of the certifiable causes of action and all of the certifiable common issues and settle the design of the proposed class action and determine whether the action is manageable as a class action.

f. The sixth analytical step is to determine whether there is some basis in fact for one or more reasonable alternatives to the proposed class action. (If there are no alternatives, then the action should be certified unless the representative plaintiff criterion is not satisfied and is not capable of being satisfied, by the appointment of one or more representative plaintiffs.)

g. If there is some basis in fact for one or more reasonable alternatives, the seventh analytical step is to compare the advantages and disadvantages of each of the alternatives to the proposed class action through the lens of judicial economy, behaviour management, and access to justice. The preferable procedure analysis involves determining: (a) whether the common issues predominate over the individual issues; and (b) whether the proposed class action is superior (better) to the alternatives.

h. If the proposed class action is the preferable procedure, then the eighth analytical step is to determine whether there is a qualified representative plaintiff, including a review of the proposed representative plaintiff’s litigation plan.

[186] Finally, on the topic of general principles and especially in light of the recalibration of the various tests for the five certification criteria animated by the recent amendments to the Class Proceedings Act, 1992, something needs to be said about the role of precedent in the certification of an action as a class proceeding.

[187] Precedent cases that establish general principles are binding within the parameters of stare decisis.

[188] Precedent cases about particular genres of class actions are helpful, but ultimately each class action must be analyzed in accordance with its own factual exigencies and ongoing developments in the legal principles. Precedent cases must be reconsidered in the light of the amendments to the Class Proceedings Act, 1992.

[189] As precedents for the immediate case, there are similar or analogous Charter, systemic negligence, or institutional abuse or malfeasance (with or without allegations of systemic negligence or breach of fiduciary duty) actions against government actors, public authorities, or public and private institutions.

[190] Some of these cases were certified as class actions on consent, unopposed, or on opposed motions; see: Farrell v. Attorney General of Canada;[^35] Liptrot v. Vancouver College Ltd.;[^36] V.L.M. v. Dominey Estate;[^37] Canada (Attorney General) v. Nasogaluak;[^38] Robertson Estate v. Ontario;[^39] Chandra v. Ontario;[^40] Canada v. Greenwood;[^41] M.L. c. Guillot;[^42] Weremy v. The Government of Manitoba;[^43] L'Oratoire Saint-Joseph du Mont-Royal v. J.J.;[^44] Tippett v. Canada;[^45] J.K. v. Ontario;[^46] Francis v. Ontario;[^47] Doucet v. The Royal Winnipeg Ballet;[^48] Reddock v. Canada (Attorney General);[^49] Safioles v. Saskatchewan;[^50] Hayes v. Saint John (City);[^51] Templin v. Ontario;[^52] Brazeau v. Canada (Attorney General);[^53] Welsh v. Ontario;[^54] Johnson v. Ontario;[^55] Cavanaugh v. Grenville Christian College;[^56] Gay v. Regional Health Authority;[^57] Good v. Toronto (Police Services Board);[^58] Brown v. Canada (Attorney General);[^59] Elwin v. Nova Scotia Home for Coloured Children;[^60] Seed v. Ontario;[^61] Anderson v. Canada (Attorney General);[^62] Dolmage (Stark) v. Ontario;[^63] Johnston v. The Sheila Morrison Schools;[^64] Baxter v. Canada (Attorney General);[^65] Richard v. British Columbia, 2005 BCSC 372 and 2006 BCSC 1462; Cloud v. Canada (Attorney General);[^66] White v. Attorney General of Canada;[^67] J.L.G. v. A.W.W.;[^68] and Rumley v. British Columbia.[^69]

[191] However, although a considerably shorter list, there are similar or analogous Charter, or systemic negligence, or institutional abuse or malfeasance claims that have been denied certification against government actors or public authorities or public or private institutions; see: Bigeagle v. Canada;[^70] Ewert v. Canada (Attorney General);[^71] Kahnapace v. Canada (Attorney General);[^72] R.G. v. The Hospital for Sick Children,[^73] Thorburn v. British Columbia;[^74] Dennis v. Ontario Lottery and Gaming Corp.;[^75] Loveless v. Ontario Lottery and Gaming Corporation;[^76] Egglestone [Barker] v. Barker;[^77] and Nixon v. Canada (Attorney General).[^78]

[192] Thus, to repeat, precedent cases are helpful, but each and every proposed class action must be analyzed in accordance with its own unique circumstances.

G. The Proposal for a Consent Certification

[193] As noted in the Procedural and Evidentiary Background section above, the Government of Ontario offered to consent to a certification of the action based on a class comprised on the 118 patients that experienced the MAP Program. The Government proposed amending the class definition accordingly. The Government proposed that the action would not include any Charter causes of action and would be narrowed to the actions for breach of fiduciary duty and negligence. Under the Government of Ontario’s proposal, there would be individual issues trials to determine causation and the measure of damages.

[194] A court cannot certify an action on consent, unless the court is satisfied that all the certification criteria are satisfied.[^79]

[195] In the immediate case, for the reasons set out in the detailed analysis below, I do agree that the certification criterion would be satisfied for an action for the 188 patients of the MAP Program at St. Thomas Psychiatric Hospital.

[196] Further, notwithstanding the Government of Ontario’s arguments to the contrary, for the reasons set out below, I conclude that the certification criteria are also satisfied for an action for all the 429 patients who received treatment while detained in the PST Unit of St. Thomas Psychiatric Hospital.

[197] For the reasons set out above in the description of the background facts, I disagree with the Government of Ontario’s submission that there was no treatment program as such other than the MAP Program. Rather, there is some basis in fact for concluding that the PST Program and its version of a therapeutic community with its heavy dose of punishment as a mental illness cure and social rehabilitation measure is capable of being the subject matter of a class action.

[198] In other words, having conceded that a class action was certifiable under the Class Proceedings Act, 1992 for 118 patients of the PST Unit, the Government of Ontario has not persuaded me that a class action is not certifiable for the other 311 patients of the PST Unit with the qualifications that I describe below.

[199] The Government of Ontario’s proposal provides a short explanation for why the Plaintiffs’ action, subject to the qualifications below, should be certified as a class action. Although, I do rely on that short explanation, in deciding to certify this action, I shall undertake the traditional analysis of each of the certification criteria. That analysis is not a short explanation.

H. Cause of Action Criterion

1. General Principles

[200] The first criterion for certification is that the plaintiff’s pleading discloses a cause of action.

[201] The “plain and obvious” test for disclosing a cause of action from Hunt v. Carey Canada,[^80] is used to determine whether a proposed class proceeding discloses a cause of action for the purposes of s. 5(1) of the Class Proceedings Act, 1992.[^81] The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. To satisfy the first criterion for certification, a claim will be satisfactory, unless it has a radical defect, or it is plain and obvious that it could not succeed.[^82]

[202] In R. v. Imperial Tobacco Canada Ltd.,[^83] the Supreme Court of Canada noted that although the tool of a motion to strike for failure to disclose a reasonable cause of action must be used with considerable care, it is a valuable tool because it promotes judicial efficiency by removing claims that have no reasonable prospect of success and it promotes correct results by allowing judges to focus their attention on claims with a reasonable chance of success. Chief Justice McLachlin stated:

Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. Before McAlister (Donoghue) v. Stevenson, 1932 CanLII 536 (FOREP), [1932] A.C. 562 (U.K. H.L.) introduced a general duty of care to one’s neighbor premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (U.K. H.L.), a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in McAlister (Donoghue) v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

[203] In Atlantic Lottery Corp. Inc. v. Babstock,[^84] the Supreme Court stated that the test applicable on a motion to strike is a high standard that calls on courts to read the claim as generously as possible because cases should, if possible, be disposed of on their merits based on the concrete evidence presented before judges at trial. However, Justice Brown stated that it is beneficial, and indeed critical to the viability of civil justice and public access thereto that claims, including novel claims, which are doomed to fail be disposed of at an early stage in the proceedings.[^85]

[204] In a proposed class proceeding, in determining whether the pleading discloses a cause of action, no evidence is admissible, and the material facts pleaded are accepted as true, unless patently ridiculous or incapable of proof. The pleading is read generously, and it will be unsatisfactory only if it is plain, obvious, and beyond a reasonable doubt that the plaintiff cannot succeed.[^86]

[205] Bare allegations and conclusory legal statements based on assumption or speculation are not material facts; they are incapable of proof and, therefore, they are not assumed to be true for the purposes of a motion to determine whether a legally viable cause of action has been pleaded.[^87]

[206] Matters of law that are not fully settled should not be disposed of on a motion to strike an action for not disclosing a reasonable cause of action,[^88] and the court’s power to strike a claim is exercised only in the clearest cases.[^89] The law must be allowed to evolve, and the novelty of a claim will not militate against a plaintiff.[^90] However, a novel claim must have some elements of a cause of action recognized in law and be a reasonably logical and arguable extension of established law.[^91] In the Ontario Court of Appeal’s decision in Darmar Farms Inc. v. Syngenta Canada Inc.,[^92] Justice Zarnett stated:

The fact that a claim is novel is not a sufficient reason to strike it. But the fact that a claim is novel is also not a sufficient reason to allow it to proceed; a novel claim must also be arguable. There must be a reasonable prospect that the claim will succeed.

2. The Claim Against the Attorney General of Ontario

[207] The Plaintiffs have named the Attorney General of Ontario as a Defendant. This claim should be struck.

[208] A claim against a minister of the Crown is a claim against the minister personally.[^93] Unless the plaintiffs intend to advance a claim against the Minister personally or advance a claim in relation to a prosecution,[^94] the Attorney General of Ontario is not a proper party to this action. In this action, the Plaintiffs, however, have not pleaded any facts to support a claim against the Attorney General nor is there any evidentiary basis to support a claim against the Attorney General.

[209] The Plaintiffs did not dispute that the claim against the Attorney General should be struck, and with the discontinuance of the action as against the Defendant Doctors, the action is now only against the Government of Ontario.

3. Section 7 of the Charter

[210] Section 7 of the Charter states:

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[211] The Government of Ontario does not dispute that the Plaintiffs’ claim for a breach of s. 7 of the Charter satisfies the cause of action criterion.

[212] I agree, and I certify that this cause of action satisfies the cause of action criterion.

4. Section 9 of the Charter

[213] Section 9 of the Charter states:

Detention or imprisonment

9. Everyone has the right not to be arbitrarily detained or imprisoned.

[214] Under section 9 of the Charter everyone has the right not to be arbitrarily detained or imprisoned. The state may not detain arbitrarily, but only in accordance with the law.[^95] The section 9 guarantee against arbitrary detention or imprisonment is a specific application of the general principle enunciated in section 7 that the government cannot infringe a person’s liberty except in accordance with the principles of fundamental justice.[^96]

[215] There are three factors in analyzing whether a detention or imprisonment is arbitrary: (1) whether the detention or imprisonment was authorized by law; (2) whether the standards set out in law limit the detention or imprisonment to a restricted category of people; and (3) whether the standards set out in law are rationally connected to the legislative objective.[^97]

[216] Detention or imprisonment is not arbitrary where there are standards that are rationally related to the purpose of the power of detention or imprisonment.[^98]

[217] A detention or imprisonment made according to the law is not arbitrary unless the law authorizing the detention or imprisonment is arbitrary.[^99] A law will be arbitrary if it either requires detention or imprisonment or if it grants discretion to detain a person without providing implied or express criteria to govern whether someone should be placed in detention or imprisonment.[^100]

[218] I agree with the Government of Ontario’s argument that while in the immediate case there may be a claim pursuant to s. 7 or s. 12 of the Charter, it is plain and obvious that there is no claim under s. 9 of the Charter. I also agree with the Government’s argument that in any event any patients who voluntarily were in the PST Unit would not have a s. 9 claim since they were not subject to detention.

[219] There are only a very few putative Class Members who volunteered to be in the PST Unit because, as noted above, the patients in the forensic units at St. Thomas Psychiatric Hospital were detained there pursuant to a warrant of the Lieutenant Governor in Council, an order under the Mental Health Act or under a Warrant of Remand. Sensibly and necessarily, there are provisions in the Mental Health Act that authorize the use of restraints to prevent harm to the patient, to other patients, and to the staff of a psychiatric facility that detains persons that are dangerous to themselves and others. These detentions and restraints are not arbitrary, and they were authorized by laws the constitutionality of which has not been challenged.

[220] The Plaintiffs’ true complaint in the immediate case is not that they were arbitrarily detained without legal authorization but is about how they were treated when they were lawfully detained. The Plaintiffs genuine complaint is that how they were treated was an infringement of their rights under s. 7 (life, liberty, and security of the person) and s. 12 (treatment and punishment).[^101]

[221] I, therefore, conclude that the Plaintiffs’ do not satisfy the cause of action criterion for the claim of an alleged breach of s. 9 of the Charter. The Plaintiffs did not demonstrate in their pleading that: (1) the detention in the PST Unit was not authorized by law; (2) the standards set out in law limit the detention to a restricted category of people; and (3) the standards set out in law are not rationally connected to the legislative objective. As noted above, the Plaintiffs did not oppose the deletion of this cause of action and the associated common issues.

[222] The s. 9 of the Charter claim does not satisfy the cause of action criterion.

5. Section 12 of the Charter

[223] Section 12 of the Charter states:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

[224] The Government of Ontario does not dispute that the Plaintiffs’ claim for a breach of s. 12 of the Charter satisfies the cause of action criterion.

[225] I agree, and I certify that this cause of action satisfies the cause of action criterion.

6. Sections 15 and 28 of the Charter

[226] Sections 15 and 28 of the Charter state:

Equality before and under law and equal protection and benefit of law

15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Rights guaranteed equally to both sexes

28. Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.

[227] The argument of the Government of Ontario is that only if the class period extends beyond April 17, 1985, would the Plaintiffs have a viable claim for a breach of s. 15 of the Charter and only for the patients treated in the PST Unit after April 17, 1985. The significance of the April 17, 1985 date is that unlike the other provisions of the Charter including s. 28, which came into effect in 1982, the in-force date of s. 15 of the Charter was postponed.

[228] Further, the Government submits that s. 28 of the Charter is entirely an interpretative provision that does not provide an independent basis for a finding of a Charter breach and s. 28 cannot be used to circumvent the in-force date for s. 15 of the Charter.[^102]

[229] Thus, the Government of Ontario does not dispute that the Plaintiffs’ claim for a breach of s. 15 of the Charter satisfies the cause of action criterion provided that the class period extends beyond April 17, 1985, which it submits is not the case.

[230] I agree with the Government of Ontario that there is no s. 28 claim as such. Thus, the only question is whether the patients have a claim under s. 15 of the Charter for patients in the PST Unit after s. 15 came into force on April 17, 1985.

[231] For the reasons expressed below, I am satisfied that the Plaintiffs’ class period does extend past April 17, 1985; it extends to December 31, 1992. Therefore, I conclude that the Plaintiffs have satisfied the cause of action criterion for a breach of s. 15 of the Charter for patients in the PST Unit from April 17, 1985 to December 31, 1992 (approximately 7.3 years).

7. Breach of Fiduciary Duty

[232] The Government of Ontario did not dispute that the cause of action criterion was satisfied for breach of fiduciary duty.

[233] I agree, and I certify that this cause of action satisfies the cause of action criterion.

8. Negligence

[234] The Government of Ontario did not dispute that the cause of action criterion was satisfied for systemic negligence.

[235] I agree, and I certify that this cause of action satisfies the cause of action criterion.

9. Vicarious Liability and Non-Delegable Duty

[236] The Plaintiffs plead a novel claim of vicarious liability and non-delegable duty against the Government of Ontario. The major premises of this cause of action are that: (a) the Government of Ontario ought not have delegated any therapeutic responsibilities to the patients of the PST Unit; and (b) the patients to whom therapeutic authority had been delegated committed the torts of: (a) assault; (b) sexual assault; (c) battery; (d) wrongful imprisonment; and (e) intentional infliction of mental harm for which the Government is vicariously liable.

[237] As I shall now explain, it is not plain and obvious that the vicarious liability and non-delegable duty claim is not viable. Stated without the double negative, the vicarious and non-delegable duty claims are legally viable claims in the circumstances of the immediate case.

[238] In K.L.B. v. British Columbia,[^103] which was heard together with E.D.G. v. Hammer[^104] and M.B. v. British Columbia,[^105] the Supreme Court of Canada considered the doctrine of vicarious liability, where a person can be found liable for the tortious conduct of others. The doctrine of vicarious liability is most frequently considered in the context of whether an employer is liable for the tortious wrongdoings of its employees, but the doctrine has been applied to other relationships. In K.L.B., the Court decided that the relationship between the Province of British Columbia and foster parents with whom the Province had placed children in need of protection was not sufficiently close to make the Province vicariously liable.

[239] In K.L.B., Chief Justice McLachlin explained that vicarious liability is imposed on the theory that in circumstances where the risks inherent in a defendant’s enterprise materialize and cause harm, it may be fair and socially useful to hold the defendant person responsible for the tortious conduct of others. In K.L.B., the Supreme Court decided that the relationship between the Province of British Columbia and foster parents with whom the Province had placed children in need of protection was not sufficiently close to make the Province vicariously liable, although the government was liable on the basis of its own direct negligence.

[240] In the earlier cases of 671122 Ontario Ltd. v. Sagaz Industries Canada Inc.,[^106] Jacobi v. Griffiths,[^107] and Bazley v. Curry,[^108] the Supreme Court considered the doctrine of vicarious liability in the more frequently occurring context of an employer-employee relationship. In Bazley v. Currie, at para. 37, Justice McLachlin, as she then was, described the policy factors underlying the imposition of vicarious liability; she stated:

37 [...] the policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization). The question in each case is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence.

[241] In 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., the defendant successfully argued that the tortfeasor was an independent contractor rather than an employee, and hence was not sufficiently connected to the defendant to ground a claim for vicarious liability. In K.L.B., Chief Justice McLachlin explained what is necessary to make out a claim for vicarious liability. At paragraph 19 of her judgment, she stated that at least two things must be demonstrated:

To make out a successful claim for vicarious liability, plaintiffs must demonstrate at least two things. First, they must show that the relationship between the tortfeasor and the person against whom liability is sought is sufficiently close as to make a claim for vicarious liability appropriate. ... Second, plaintiffs must demonstrate that the tort is sufficiently connected to the tortfeasor's assigned tasks that the tort can be regarded as a materialization of the risks created by the enterprise. ... These two issues are of course related. A tort will only be sufficiently connected to an enterprise to constitute a materialization of the risks introduced by it if the tortfeasor is sufficiently closely related to the employer.

[242] A claim of breach of a non-delegable duty is sometimes auxiliary or supplementary to a vicarious liability claim because it arises from a relationship between the alleged tortfeasor and the person who causes the harm, but, strictly speaking, it is a different kind of vicarious liability. The difference is that a defendant can be liable for vicarious liability without being directly a wrongdoer but there is direct liability; i.e., a direct wrongdoing in assigning to another a responsibility that is non-delegable.

[243] In other words, in the typical situation of vicarious liability, a person can be vicariously liable without himself or herself personally being a tortious wrongdoer.[^109] In contrast, non-delegable duties are duties not only to take care, but to ensure that care is taken.[^110] Before imposing a non-delegable duty, the court will consider if the relationship between the parties possesses elements that make it appropriate to hold a defendant liable for the negligence of a third party – that is, to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed.[^111]

[244] In the immediate case, at first analysis, it appears that the primary relationship between the Government of Ontario and the patients at St. Thomas Psychiatric Hospital is akin to relationship between a warden and prisoner or between a hospital administrator and the patients receiving care from the hospital’s staff including physicians, nurses, and social workers. This relationship would not give rise to vicarious liability based on misconduct by one patient to another. Further, there obviously is no employer relationship between the Government of Ontario and the patients in the PST Unit that allegedly assaulted, sexually assaulted, battered, falsely imprisoned, and intentionally inflicted emotional harm on fellow patients. It, however, does not follow from this first impression analysis that it is plain and obvious that there is no legally viable claim for vicarious liability in the immediate case, although the claim would be a novel one.

[245] The explanation for the possibility of a novel claim for vicarious liability lies in the circumstance that the enterprise of the Government of Ontario in this case was a therapeutic community, and the Government advertently delegated therapeutic responsibilities to some of the patients who abused their authority by assaulting, sexually assaulting, etc. their fellow inmates.

[246] In other words, while it cannot be said that the patients were agents of the Government of Ontario in the sense of establishing an employer-employee relationship or a principal and agent relationship, the patients in the PST Unit were the agency of the government’s conduct. In the abstract world of the law, agency connotes a relationship, but in the physical world, agency connotes action or intervention to produce a particular effect.

[247] In the immediate case, a cause of action based on any form of vicarious liability is a novel claim, and its success is far from assured, but it is not plain and obvious that there was not a sufficient relationship between the Government of Ontario and the patients to make the Government vicariously liable for the misconduct of the patients against other patients, whatever the underlying tort may have been.

[248] The Government of Ontario, however, submits that the pleading of vicarious liability fails to satisfy the cause of action criterion because the Plaintiffs do not identify the perpetrators and the Plaintiffs do not adequately plead the predicate torts for which the Government would be vicariously liable by describing the who, where, when, and how of the underlying tort.

[249] This pleadings argument is a cynical argument that I rejected in Francis v. Ontario,[^112] another action against the Government of Ontario. It is a cynical argument because the Government knows that it is now impossible in 2023 to name names and describe the particulars of events from 1976 to 1992.

[250] It is also an unsuccessful argument because it fails to appreciate that the vicarious liability claim is advanced in the context of a case about systemic wrongdoing. As I noted in Francis, there is no requirement in the systemic negligence cases to calling out the particular school principals, teachers, civil servants, jailers, administrators, doctors, nurses, etc. The wrongdoing is systemic involving a breakdown of the system. The patients in the immediate case suffered as a result of the systemic failings of the MAP Program and the PST Program. The details of the who, where, when, and how of the damages can be ascertained at individual issues trials.

I. Certification and Limitation Period Defences

[251] The Defendant Doctors advanced a limitations period argument that resonates in the analysis of all of the certification criteria. At the hearing of the certification motion, the Government of Ontario adopted the Defendant Doctors’ limitation period argument.

[252] The Government of Ontario’s argument is that subject to three exceptions that are totally idiosyncratic and that could only be decided as individual issues, all of the claims in the Plaintiffs’ proposed class action are statute-barred by the 15-year ultimate limitation period of the Limitations Act, 2002.[^113]

[253] The Plaintiffs’ answer to the Defendants’ limitations period argument is two-pronged. The first prong of the counterargument is that pursuant to the s. 15 (4) of the Limitations Act, 2002, there is a class-wide rebuttal to the ultimate limitation period because the Plaintiffs have pleaded as a common fact that the Defendants wilfully concealed from the patients the material fact that the patients were harmed by the defendants’ conduct;[^114] i.e., the argument is that the Government intentionally hid that it was the cause of the patients’ suffering and injuries. Further, the Plaintiffs propose that the availability of a rebuttal based on wilful concealment or the common law fraudulent concealment doctrine can usefully be addressed at the common issues trial. (See Questions Nos. 27 and 28.)

[254] The second prong of the Plaintiffs’ counterargument is that accepting that the exceptions to the ultimate limitation period can only be determined at individual issues trials, then it does not follow that there still should not be a common issues trial of the other common issues.

[255] I agree with the Plaintiffs’ counterarguments.

[256] The relevant provisions of the Limitations Act, 2002 are set out below.

Ultimate limitation periods

15 (1) Even if the limitation period established by any other section of this Act in respect of a claim has not expired, no proceeding shall be commenced in respect of the claim after the expiry of a limitation period established by this section.

General

15 (2) No proceeding shall be commenced in respect of any claim after the 15th anniversary of the day on which the act or omission on which the claim is based took place.

Period not to run

15 (4) The limitation period established by subsection (2) does not run during any time in which,

(a) the person with the claim,

(i) is incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition, and

(ii) is not represented by a litigation guardian in relation to the claim;

(b) the person with the claim is a minor and is not represented by a litigation guardian in relation to the claim; or

(c) the person against whom the claim is made,

(i) wilfully conceals from the person with the claim the fact that injury, loss or damage has occurred, that it was caused by or contributed to by an act or omission or that the act or omission was that of the person against whom the claim is made, or (ii) wilfully misleads the person with the claim as to the appropriateness of a proceeding as a means of remedying the injury, loss or damage.

Burden

(5) The burden of proving that subsection (4) applies is on the person with the claim.

No limitation period

16 (1) There is no limitation period in respect of,

(h) a proceeding based on a sexual assault;

(h.2) a proceeding based on an assault if, at the time of the assault, the person with the claim was a minor or any of the following applied with respect to the relationship between the person with the claim and the person who committed the assault:

(i) they had an intimate relationship,

(ii) the person with the claim was financially, emotionally, physically, or otherwise dependent on the other person;

Same

(1.3) For greater certainty, clauses (1) (h), (h.1) and (h.2) are not limited in any way with respect to the claims that may be made in the proceeding in relation to the applicable act, which may include claims for negligence, for breach of fiduciary or any other duty or for vicarious liability.

[257] The Government of Ontario is correct that courts have used the 15-year ultimate limitation period to demark the boundaries of class membership[^115] and that if that demarcation was used in the immediate case, then there would be no class members without statute-barred causes of action save for those class members that individually demonstrated that: (a) he or she was incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition (See s. 15(4)(a) (i) of the Limitations Act, 2002); (b) the cause of action was based on a sexual assault (See s. 16(1)(h) of the Limitations Act, 2002); or (c) he or she had an intimate relationship and was dependent on the person liable for the assault (See s. 16(1)(h) of the Limitations Act, 2002).

[258] The Government of Ontario is also correct that mental capacity and assault and the defences to an assault are inherently idiosyncratic and are individual issues not common issues.

[259] It is certainly debatable whether both as a factual matter and as a legal matter, the Plaintiffs could establish on a class-wide basis that the Government of Ontario wilfully concealed that they were causing harm to the patients in the PST Unit. However, it is not plain and obvious that wilful concealment might not be available on a class-wide basis or at individual issues trials. Because of the Plaintiffs’ lawyers’ experience in Barker v. Barker, the Plaintiffs’ Statement of Claim and their factums have abundant case law that lays the foundation for a wilful concealment rebuttal to a limitations period defence.

[260] The case law in Ontario[^116] and in other provinces[^117] reveals that it is not a categorial block to certification that the defendant raises a limitation period issue that divides the class members or that cannot be resolved at a common issues trial or that requires individual issues trials for a resolution and that in some cases, applicability of the ultimate limitation period and the wilful concealment exception can be certified as a common issue and determined on a class-wide basis.

[261] Thus, to summarize, there are available rebuttals to the Government of Ontario’s ultimate limitation period argument pursuant to sections 15(4)(a)(i), 16(1)(h), and 16(1)(h) of the Limitations Act, 2002. How many of the 429 patients have this rebuttal is not known. Furthermore, all of the patients may be able to rebut the ultimate limitation period if wilful concealment is proven at the common issues trial.

[262] In these circumstances, the possibility that the Government of Ontario may have an ultimate limitations period defence is not a bar to certifying this action as a class proceeding.

J. Identifiable Class Criterion

1. General Principles

[263] The second certification criterion is the identifiable class criterion. The definition of an identifiable class serves three purposes: (1) it identifies the persons who have a potential claim against the defendant; (2) it defines the parameters of the lawsuit so as to identify those persons bound by the result of the action; and (3) it describes who is entitled to notice.[^118]

[264] In defining the persons who have a potential claim against the defendant, there must be a rational relationship between the class, the cause of action, and the common issues, and the class must not be unnecessarily broad or over-inclusive.[^119] An over-inclusive class definition binds persons who ought not to be bound by judgment or by settlement, be that judgment or settlement favourable or unfavourable.[^120] The rationale for avoiding over-inclusiveness is to ensure that litigation is confined to the parties joined by the claims and the common issues that arise.[^121] A proposed class definition, however, is not overbroad because it may include persons who ultimately will not have a successful claim against the defendants.[^122]

[265] The class must also not be unnecessarily narrow or under-inclusive. A class should not be defined wider than necessary, and where the class could be defined more narrowly, the court should either disallow certification or allow certification on condition that the definition of the class be amended.[^123]

2. Discussion and Analysis

[266] The definition of the family law derivative claimants is normative in the immediate case. The core definition of the putative Class Members is:

All persons who were patients in the Psychosocial Treatment Program (referenced as 2C, P2C, PST or PSTU) or its successor program on the forensic unit at St. Thomas between 1976 and 1992, or their estates, and who were alive as of February 15, 2020 (“Class Members”).

[267] The meaning of this definition is that the putative class members are patients who were in the PST Unit from 1976 to 1992. In my opinion, this definition satisfies the class definition criterion of s. 5(1)(b) of the Class Proceedings Act, 1992. There are no technical objections to the class definition.

[268] The Government of Ontario disputed the termination date of the class period. It argued that the class period should end with the termination of the MAP Program. This argument is a reflection of the Government’s argument, discussed above, as a part of the factual history of St. Thomas Psychiatric Hospital, that in the PST Unit there was no PST Program apart from the MAP Program. That argument, however, does not meet the Plaintiffs’ case, which is not commensurate with the MAP Program but rather focuses on the impugned activities of the Defendants in the therapeutic community that existed in the PST Unit between 1976 and 1992, when the communal model was jettisoned for an idiosyncratic treatment model.

[269] The 15-year length of the class period is not per se objectionable and there have been numerous institutional abuse or malfeasance class actions with lengthy class periods. In Cloud v. Canada (Attorney General),[^124] the Court of Appeal certified a class of students who attended residential schools between 1922 and 1969, a period of 47 years. The class period was 19 years in Brown v. Canada (Attorney General);[^125] 24 years in Cavanaugh v. Grenville Christian College;[^126] 47 years in Templin v HMQ Ontario;[^127] 61 years in Seed v. Ontario;[^128] and 67 years in Tidd v. New Brunswick.[^129]

[270] The circumstance that the Plaintiffs’ claims may be stronger or weaker at various times over the duration of the class period is not objectionable, and now is not the time to determine whether the Government’s liability, if any, ended with the formal termination of the MAP Program.

[271] Relying on the British Colombia case of O’Connor v. Canadian Pacific Railway Ltd.[^130] and the Ontario case of Nixon v. Canada (Attorney General),[^131] the Government of Ontario submits that there are inherent conflicts amongst the putative class members because of the allegations of vicarious liability arising from, amongst other events, patient-on-patient assaults and sexual assaults. The Government says that the vicarious liability claim will inevitably lead to third party claims by the Government for contribution and indemnity against the perpetrators of the underlying torts. The Government submits that the class definition fails because it would be overinclusive by including class members who are perpetrators and there is no way to remedy this definitional defect.

[272] O’Connor and Nixon were both cases arising from fire disasters where it was possible that some of the class members might have been liable for starting or not stopping the fire after it started. The circumstances of the immediate case are not analogous. In the immediate case, while there may be conflicts amongst the patients at individual issues trials, there is no conflict that imperils the resolution of the common issues that focus on the alleged misconduct of the Government of Ontario. If there are conflicts amongst the patients those conflicts can be resolved at the individual issues phase.

[273] Moreover, the Government’s threat of third party proceedings in the immediate case is an insipid threat or bluff given that unlike the landowners in O’Connor and Nixon, the former patients of the PST Unit are likely judgment proof. Moreover, the patients who might be sued as third parties are not without defences to the third party claims.

[274] Therefore, in the immediate case, the Plaintiffs satisfy the class definition criterion.

K. Common Issues Criterion

1. General Principles

[275] The third criterion for certification is the common issues criterion. For an issue to be a common issue, it must be a substantial ingredient of each class member’s claim and its resolution must be necessary to the resolution of each class member’s claim.[^132]

[276] The underlying foundation of a common issue is whether its resolution will avoid duplication of fact-finding or legal analysis of an issue that is a substantial ingredient of each class member’s claim and thereby facilitate judicial economy and access to justice.[^133]

[277] An issue is not a common issue, if its resolution is dependent upon individual findings of fact that would have to be made for each class member.[^134] Common issues cannot be dependent upon findings which will have to be made at individual trials, nor can they be based on assumptions that circumvent the necessity for individual inquiries.[^135]

[278] All members of the class must benefit from the successful prosecution of the action, although not necessarily to the same extent. The answer to a question raised by a common issue for the plaintiff must be capable of extrapolation, in the same manner, to each member of the class.[^136]

[279] The common issue criterion presents a low bar.[^137] An issue can be a common issue even if it makes up a very limited aspect of the liability question and even though many individual issues remain to be decided after its resolution.[^138] Even a significant level of individuality does not preclude a finding of commonality.[^139] A common issue need not dispose of the litigation; it is sufficient if it is an issue of fact or law common to all claims and its resolution will advance the litigation.[^140]

[280] As noted in the discussion above of the general principles on a certification motion, from a factual perspective, the plaintiff must show that there is some basis in fact that: (a) the proposed common issue actually exists; and (b) the proposed issue can be answered in common across the entire class, which is to say that the Plaintiff must adduce some evidence demonstrating that there is a colourable claim or a rational connection between the class members and the proposed common issues.[^141]

2. Discussion and Analysis

[281] As set out above, the Plaintiffs sought to certify 28 common issues. Of these, Questions Nos. 4 and 5 (knowing assistance) are withdrawn. Question No. 15 (s. 9 of the Charter) is disqualified because the underlying cause of action criterion has not been satisfied and because the cause of action has not been certified. Question 19 has been withdrawn.

(a) Question Nos. 1-3, (Fiduciary Duty); Question Nos. 6-8 (Negligence); and Questions Nos. 9-11 (Vicarious Liability and Breach of Non-delegable Duty)

[282] The commonality of Questions Nos. 1-3 (fiduciary duty), Questions Nos. 6-8 (negligence), and Questions 9-11 (Vicarious Liability and Breach of Non-delegable Duty) can be dealt with together.

[283] The Government of Ontario submits that the factual background to the Certification Motion reveals that none of these groups of questions satisfies the common issues criterion because the facts are individual not communal facts. The Government submits that from a factual perspective, underlying the breach of fiduciary duty and the negligence causes of action are allegations of the Government of Ontario: (a) failing to obtain consent to treatment; (b) improperly delegating treatment decisions and governance of the therapeutic community to the unqualified patients; (c) improperly using restraints; (d) improperly using seclusion (solitary confinement); € allowing traumatic confrontational group sessions; and (f) imposing punishments instead of treatment, all of which require individual inquiries and the Government argues that these underlying acts want for any commonality and all of these allegations require individual not common inquiries.

[284] For example, to quote from paragraph 159 of the Government of Ontario’s factum:

159. The flaws in the plaintiffs’ approach are also evident from their contention that the use of group therapy may ground a common issue. As was the case with the use of restraints, both the plaintiffs’ approach and the evidentiary record demonstrate that the issue of whether abusive group therapy was implemented on the PST Unit at St. Thomas cannot be determined on a class-wide basis. Rather, the propriety of such therapy and whether it caused harm can only be determined through a detailed analysis of each therapy session, considering what was said at the therapy session, who said what, whether the individual consented to their participation in the group therapy and the particular circumstances including those present. […]

[285] It is true that ultimately the matter of whether or not, for example, the Government of Ontario is liable for breach of fiduciary duty, negligence, or vicariously liable because of how it used restraints will require individual issues trials; however, that truth does not negate that there is a common issue about a breakdown in the system that is represented by the PST Program and the MAP Program. The common issues about systemic breach of fiduciary duty, systemic negligence, and a systemic inappropriate delegation of treatment decisions to patients, are the legal catalyst for the individual issues trial.

[286] Upon analysis, it emerges that the Government’s argument about the common issues is a differently dressed version of its argument that the class definition is overbroad. This argument does not work because there is useful work to be done at a common issues trial about systemic wrongdoing, and assuming systemic wrongdoing is proven then the action can proceed to an individual issues trial.

[287] That the common issues trial is the catalyst for the individual issues trial can be demonstrated by analyzing the consequences of the common issues trial; visualize: (a) if the Government of Ontario’s defence succeeds, the action is over and there are no individual issues trials, but (b) if the Government of Ontario’s defence fails at the common issues trial, then there will be individual issues trials. The common issues trial is the red light or the green light for proceeding with the individual issues determinations.

[288] I conclude that Question Nos. 1-3, (Fiduciary Duty); Question Nos. 6-8 (Negligence); and Questions Nos. 9-11 (Vicarious Liability and Breach of Non-delegable Duty) satisfy the common issues trial. At a systemic level, there is commonality, and the resolution of the common issues suitably advances the class member’s causes of action.

(b) Questions Nos. 12-14, 16-18, and 20-21 (Charter Claims)

[289] The commonality of the Charter Questions can be addressed together. These claims, like the causes of action for breach of fiduciary duty, negligence, and vicarious liability are also destined for individual issues trials. However, unlike those causes of action, a common issues trial provides no catalyst for the individual issues trials.

[290] Visualize, as a legal matter, the case law already establishes that on an individual basis there can be breaches of sections 7, 12, or 15 of the Charter in circumstances similar to those that existed at St. Thomas Psychiatric Hospital. In the circumstances of the immediate case, that these breaches occur may bolster the systemic causes of action about fiduciary duties, negligence, and vicarious liability but they themselves are not systemic breaches. Whether, for instance, the PST Program was a cruel and unusual treatment can only be determined on an individual basis and whether it caused harm can only be determined on an individual basis. Conceptually, the case at bar is different from the Charter cases where there was a systemic breach of Charter rights. The administrative segregation cases in federal penitentiaries and provincial jails demonstrate a common breach in the system by isolating inmates from the general population in conditions that were uniformly legally intolerable. The determination that placing an inmate in isolation in conditions that offended the international standard of what counts for torture was the catalyst for individual issues trials to determine the quantum of damages. There is no such commonality in the immediate case.

[291] In the immediate case the importance and difficulty of the individual Charter issues means that there are little economies to be achieved and the evidence and fact-finding at a common issues trial would have to be replicated when the individual issues come to be determined.

[292] In the immediate case, some of the patients may have been culpably isolated but the other patient’s Charter complaints will be about an improper use of restraints or improper treatment under the MAP Program or the PST Program. The several alleged Charter breaches want for commonality and will have to be proven at individual issues trials.

[293] I conclude that the Charter questions do not satisfy the common issues criterion.

(c) Question No. 22: Causation

[294] The proposed causation common issue Question No. 22 is: “If the answer to one or more of questions No. 3, No. 7, No. 8, and No. 9 is “yes”, did the Defendants’ breaches cause the class members a base level of harm?”

[295] A causation question was not a part of the Plaintiffs’ original set of common issues but was added during the course of the Certification Motion. The some-basis-in-fact foundation for the question, however. was foreseen in the evidence for the Certification Motion and is based on the expert’s evidence that being exposed to the PST Program or just being in the PST Unit would occasion a minimum base level of harm.

[296] However, in my opinion, the causation question is not a common issue question and is a sort of trick question like: Where were you standing when you killed your spouse? The question begs that harm was occasioned because it assumes that harm occurred, and it hides the want of commonality in the predicate events alleged to cause harm. It assumes general causation when the issues to be determined is the idiosyncratic one of individual harms suffered by individual patients. And the question fails to differentiate causing an increased risk of a bad outcome from actually causing a bad outcome.

[297] As noted above and by various courts, systemic wrongdoing cases inherently present difficulties for a class member in proving that the systemic wrongdoing caused him or her harm. That difficulty of proof associated with causation is present in the immediate case and negates any base level of harm. In the immediate case, a patient could prove that he or she was harmed while they were resident in the PST Unit, but the harm may be: (a) dependent on the Government of Ontario’s alleged malfeasance; (b) independent of the alleged malfeasance; (c) random; or (d) inherent to the unpleasant circumstances of being lawfully detained and remitted to a penal forensic psychiatric facility pursuant to a Lieutenant Governor’s Warrant.

[298] Where questions relating to causation are proposed as common issues, the Plaintiffs bear the onus of demonstrating there is a workable methodology for determining a “common impact”.[^142] The reports of Drs. Bradford and O’Shaughnessy do not provide a methodology. There is no methodology of how a base level of harm could be proved or quantified. There is no basis in fact that exposure to the PST Program from 1984-1992 caused all Class Member a “base level of harm”. The creation of a risk of harm is not wrongful conduct or proof of harm.[^143]

[299] The case at bar is different from the baseline harm cases like Brazeau, supra, Reddock, supra, Francis, supra and Chandra supra, where there was a baseline measure of harm that could be said to have been suffered by any person confined in conditions of torturous solitary confinement for 15 days. In those cases, it was proven that the impugned administrative segregation would cause a base level of harm for detainments of 15 or more days, but it was not proven that any duration of administrative segregation would cause harm save for inmates with certain (not all) pre-existing mental health conditions. In the immediate case, not all the patients were in the MAP Program and while all the patients were in the PST Program, their grievances that caused them harm were not uniform and the specific causation of harm is indeterminate. Once again, there are little economies to be achieved and the evidence and fact-finding at a common issues trial would have to be replicated when the individual issues come to be determined.

[300] I conclude that the causation question does not satisfy the common issues criterion. Causation is an issue to be determined at individual issues trials.

(d) Question No. 23: Charter Damages

[301] Question No. 23 states: If the answer to questions No. 21 and/or No. 22 is “no”, are damages pursuant to section 24(1) of the Charter an appropriate remedy? Since there are no Charter common issues that are being certified, Question No. 23 about the calculation of the Charter damages does not present a common issue.

[302] I conclude that the Charter damages question does not satisfy the common issues criterion.

(e) Question Nos. 24 and 25: Aggregate Damages

[303] Questions Nos. 24 and 25 are the aggregate damages questions. A precondition to an aggregate damages common question being available pursuant to s. 24(1) of the Class Proceedings Act, 1992 is that liability or a minimum level of liability can be established at the common issues trial.[^144]

[304] The prerequisite for aggregate damages is not satisfied in the immediate case. Aggregated damages are not awarded in personal injury cases for the obvious reason that specific causation of harm and the existence of harm (which is distinct from an increased risk of harm) are liability elements. Those liability elements of the cause of action remain are not proven until after the common issues trial. Charter damages cases are an exception, but the case at bar does not have a Charter common issue.

[305] I, therefore, conclude that Questions Nos. 24 and 25 do not satisfy the common issues criterion.

(f) Question 26: Punitive Damages

[306] The punitive damages question is: “Does the conduct of Ontario in implementing and operating the PST Program merit an award of punitive damages to some or all of the Class Members?”

[307] It may be established at the individual issues trials that the conduct of Ontario in implementing and operating the PST Program justifies an award of punitive damages to a particular patient, but it is not a class-wide question.

[308] In other words, the punitive damages question wants for commonality and does not satisfy the common issues question.

(g) Questions Nos. 27 and 28: Limitation Periods

[309] It was not contested and indeed it was suggested by the Government of Ontario that if the class action was certified that there be common questions about the operation of the ultimate limitation period and the exceptions to the ultimate limitation period under the Limitations Act, 2002.

[310] I agree, and I conclude that Questions Nos. 27 and 28 would be productive common issues.

L. Preferable Procedure Criterion

1. General Principles

[311] Preferability captures the ideas of: (a) whether a class proceeding would be an appropriate method of advancing the claims of the class members; and (b) whether a class proceeding would be better than other methods to resolve the dispute.[^145] The preferable procedure criterion is set out in sections 5(1)(d) and 5(1.1) of the Class Proceedings Act, 1992, which state:

Certification

5 (1) The court shall, subject to subsection (6) and to section 5.1, certify a class proceeding on a motion under section 2, 3 or 4 if,

(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and

(1.1) In the case of a motion under section 2, a class proceeding is the preferable procedure for the resolution of common issues under clause (1) (d) only if, at a minimum,

(a) it is superior to all reasonably available means of determining the entitlement of the class members to relief or addressing the impugned conduct of the defendant, including, as applicable, a quasi-judicial or administrative proceeding, the case management of individual claims in a civil proceeding, or any remedial scheme or program outside of a proceeding; and

(b) the questions of fact or law common to the class members predominate over any questions affecting only individual class members.

[312] Relevant to the preferable procedure analysis are the factors listed in s. 6 of the Class Proceedings Act, 1992, which state:

6. The court shall not refuse to certify a proceeding as a class proceeding solely on any of the following grounds:

7. The relief claimed includes a claim for damages that would require individual assessment after determination of the common issues.

8. The relief claimed relates to separate contracts involving different Class Members.

9. Different remedies are sought for different Class Members.

10. The number of Class Members or the identity of each Class Member is not known.

11. The class includes a subclass whose members have claims or defences that raise common issues not shared by all Class Members.

[313] In AIC Limited v. Fischer,[^146] which is the leading case on preferability, the Supreme Court of Canada emphasized that the preferability analysis must be conducted through the lens of judicial economy, behaviour modification, and access to justice. Thus, for a class proceeding to be the preferable procedure for the resolution of the claims of a given class, it must represent a fair, efficient, and manageable procedure that is preferable to any alternative method of resolving the claims.[^147]

[314] To satisfy the preferable procedure criterion, the proposed representative plaintiff must show some basis in fact that the proposed class action would: (a) be a fair, efficient, and manageable method of advancing the claim; (b) be preferable to any other reasonably available means of resolving the class members’ claims; and (c) facilitate the three principal goals of class proceedings; namely: judicial economy, behaviour modification, and access to justice.[^148]

[315] The determination of preferable procedure involves two major tests. The first test is whether a class proceeding would be a fair, efficient, and manageable procedure. The second test is whether a class proceeding is preferable to any alternative method of resolving the class members’ claims. Both tests are measured through the lens of the purposes of the class proceeding legislation; namely: (a) access to justice; (b) behaviour modification; and (c) judicial economy.

[316] Alternatives to a class proceeding include: (a) individual actions; (b) joinder; (c) consolidation, (d) test cases; (e) quasi-judicial or administrative proceedings; and, (f) remedial scheme or program outside of a proceeding.

[317] Subsection 5 (1.1) was added to the Class Proceedings Act, 1992 in 2020.[^149] Although it is arguable that its prerequisites of: (a) predominance of common issues over individual issues, and (b) superiority of all reasonably available alternative resolution procedures were already factors in the preferability analysis that developed in the original statute, the emphasis placed by “the only if, at a minimum language” and the debates in the Legislature reveals that the purpose of the amendment was to raise the threshold, heighten the barrier, or make more rigorous the challenge of satisfying the preferable procedure criterion.[^150] The factors of predominance of common issues over individual issues and superiority over the alternatives are signals that the proposed class action must be superlative to the alternatives in order to satisfy the preferable procedure criterion.

[318] The addition of s. 5(1.1) to the Class Proceedings Act, 1992 imposes a stricter test for preferability than the test that governed since 1994 when the Act came into force. The only ponderable is how much stricter is the new test associated with the preferable procedure criterion.

[319] Under the old or the new formulation of the test for preferability, before a preferability analysis can be undertaken, it is necessary to settle the design, (the procedural architecture, the procedural infrastructure) of the proposed class action in relation to the certifiable causes of action and the associated class definition and common issues. In other words, the proposed class action must have satisfied the first three criteria as a prerequisite to the fourth criterion of preferability.

[320] If the first three criteria are satisfied, then the recent amendments to the Class Procedings Act, 1991 require that the preferable procedure analysis be more rigorous and involve determining: (a) whether the design of the class action is manageable as a class action; (b) whether there are reasonable alternatives; (c) whether the common issues predominate over the individual issues; and (d) whether the proposed class action is superior (better) to the alternatives. This analysis is accomplished by comparing the advantages and disadvantages of the alternatives to the proposed class action through the lens of judicial economy, behaviour management, and access to justice.

[321] The circumstance that some class actions will involve both a common issues phase and an individual issues phase is not an obstacle to certification, but the court must consider the contributions of both the common issues phase and the individual issues phase in the preferable procedure analysis. The purpose of determining whether the common issues predominate over the individual issues is to ensure that the common issues - taken together - advance the objective of judicial economy and sufficiently advance the claims of the class members to achieve access to justice. A class action will not be preferable if, at the end of the day, claimants remain faced with the same economic and practical hurdles that they faced at the outset of the proposed class action.[^151]

[322] There is a subtle but significant element in the emphasis in the new test that the common issues predominate over the individual issues. The subtle point is that it is the common issues - taken together - that must predominate over the individual issues. Each discrete common issue has already satisfied the common issues criterion of advancing the plaintiff’s claim. The football game metaphor used in the case law is that the common issue must just move the yardsticks down the playing field. That metaphor is not apt for the preferable procedure analysis and should not conflate the strict preferable procedure analysis where the common issues taken as a whole must predominate. The factor that the common issues taken as a whole must predominate is a test of anticipated productivity and a type of inferiority test. If the common issues do not predominate then a class action is not productive and is inferior (not superior) to the alternative of proceeding immediately to individual issues trials.[^152]

2. Discussion and Analysis

[323] The first step in the preferability analysis is determining whether the design of the class action is manageable as a class action. In the immediate case, the design that emerges after an analysis of the first three certification criteria is a systemic institutional abuse or malfeasance class action with a common issues trial to be followed by individual issues trials to determine causation and damages.

[324] As emerges from the discussion above of the other certification criteria, the design of the proposed class action is simpler than the design that the Plaintiffs hoped to have certified. The certifiable design is not complicated by [Charter](https://www.canlii.org/en/ca/laws/stat/