COURT FILE NO.: CV-20-00648579-00CP

DATE: 20240625

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RUBEN STOLOVE by his litigation guardians Micha Stolove and Linda Hindrea, MICHA STOLOVE, LINDA HINDREA, MICHAEL BURTON ALEXANDER, BARRON JENNER, CHRISTOPHER DUCHARME, COLEBY BENJAMIN by his litigation guardian Kelly Draper and KELLY DRAPER

Plaintiffs

• and -

WAYPOINT CENTRE FOR MENTAL HEALTH CARE, CAROL LAMBIE, ROB DESROCHES, LINDA ADAMS and HIS MAJESTY THE KING IN RIGHT OF ONTARIO

Defendants

Proceeding under the Class Proceedings Act, 1992

Joel P. Rochon, Golnaz Nayerahmadi, Matthew W. Taylor, and Pritpal Mann for the Plaintiffs

Ann Christian-Brown, Vanessa Glasser, Teresa Anne Martin, Ram Rammaya, Michael Saad, Daniel Huffaker, and Maia Stevenson for His Majesty the King in Right of Ontario

Elizabeth Bowker, Jacinthe Boudreau, Deborah Berlach, Christian Breukelman, Dakota Forster, Paul Morrison and Kathryn M. Frelick for the Defendants Waypoint Centre for Mental Health Care, Carol Lambie, Rob Desroches, and Linda Adams

HEARD: April 17, 18, and 19, 2024

PERELL, J.

REASONS FOR DECISION

Contents

A. Introduction. 3

B. Overview.. 4

C. Procedural Background. 6

D. The Evidentiary Pox. 10

1. The Governance, Administration, and Psychiatric Programs of The Hospital 14

2. Class Size. 18

3. The Divestment of The Penetanguishene Psychiatric Hospital 18

E. Involuntary Psychiatric Care in Ontario. 19

F. Restraint and Seclusion. 21

G. The Common Law Duty to Restrain. 24

H. Restraint and Seclusion at The Penetanguishene Psychiatric Hospital 26

I. Restraint, Seclusion, Solitary Confinement, and Administrative Segregation. 28

J. Michael Burton Alexander 35

K. Coleby Benjamin and Kelly Draper 36

L. Richard DeJong (Class Member) 37

M. Christopher Ducharme. 37

N. Barron Jenner 39

O. Ruben Stolove, Linda Hindrea, and Micha Stolove. 39

P. Certification General Principles. 40

Q. Cause of Action Criterion. 42

1. General Principles. 42

2. The Causes of Action against Waypoint 43

3. The Causes of Action against Adams, Desroches and Lambie. 44

4. The Causes of Action against Ontario. 46

(a) Ontario’s No Direct Claim Argument 46

(b) Causes of Action against Ontario for the Pre-divestment Period. 47

(c) The Breach of Fiduciary Duty Claim for the Post-divestment Period. 48

(d) The Non-Delegable Claim against Ontario for the Post-divestment Period. 48

(e) The Charter Claims Against Ontario for the Post-divestment Period. 50

(f) Tort Claims and Ontario’s Transfer Payment Recipient Argument 51

R. Identifiable Class Criterion. 52

1. General Principles. 52

2. Discussion and Analysis. 53

S. Common Issues Criterion. 54

1. General Principles. 54

2. Common Issues. 55

3. Discussion and Analysis. 57

(a) Solitary Confinement Common Issue: Q.1. 58

(b) Negligence Common Issues: Q Nos. 2-5. 59

(c) Fiduciary Duty Common Issues: Q Nos. 6-11. 60

(d) Non-delegable Duty Common Issues: Q Nos. 12-15. 60

(e) Vicarious Liability Common Issues: Q Nos. 17-18. 60

(f) Charter Common Issues: Q Nos. 19-24. 60

(g) Causation, Harm, and Damages Common Issues: Q Nos. 25-29. 61

(h) Limitations Common Issues: Q Nos. 30-32. 62

(i) Conclusion. 62

T. Preferable Procedure Criterion. 62

1. General Principles. 62

2. Discussion and Analysis. 64

U. Representative Plaintiff Criterion. 67

1. General Principles. 67

2. Discussion and Analysis. 67

V. Conclusion. 68

A. Introduction

[1] This is a Certification Motion in a proposed class action pursuant to the Class Proceedings Act, 1992.[^1]

[2] The Plaintiffs Michael Burton Alexander, Coleby Benjamin, Christopher Ducharme, Barron Jenner, and Ruben Stolove are or were patients at Waypoint Centre for Mental Health Care (“The Penetanguishene Psychiatric Hospital”), formerly known as Mental Health Centre Penetanguishene.

[3] Messrs. Alexander, Benjamin, Ducharme, Jenner, and Stolove are the proposed Representative Plaintiffs for the patients at The Penetanguishene Psychiatric Hospital.

[4] Kelly Draper, Linda Hindrea, and Micha Stolove are the proposed Representative Plaintiffs for the derivative claimants pursuant to s. 61 of the Family Law Act.[^2]

[5] The proposed Class definition is:

(a) All persons who, starting on January 1, 2000, were inpatients at Waypoint Centre for Mental Health Care (formerly “Mental Health Centre Penetanguishene” or “MHCP”) and who were confined (pursuant to seclusion orders or behaviour management plans, including but not limited to IMPs, TSPs and CPPs) and/or restrained; (“Class” and “Class Members”), and

(b) All persons who, on account of a personal relationship to a Class Member, are entitled to assert a derivative claim for damages pursuant to section 61(1) of the Family Law Act, R.S.O 1990, c. F. 3, as amended (“Family Class” and “Family Class Members”).

[6] The Plaintiffs sue His Majesty the King in Right of Ontario, i.e. the Province of Ontario, (“Ontario”) and Waypoint Centre for Mental Health Care (“Waypoint”) for the alleged systemically negligent way they operated or oversaw the operation of a maximum security psychiatric hospital in Penetanguishene that provided care for involuntary patients (“The Penetanguishene Psychiatric Hospital” or “The Hospital”).

[7] The Plaintiffs also sue Carol Lambie, Rob Desroches, and Linda Adams. Until her retirement in June 2022, Ms. Lambie was the President and CEO of The Penetanguishene Psychiatric Hospital. Mr. Desroches is Chief Operating Officer at The Hospital. Ms. Adams is a Waypoint Vice President and Chief Nursing Executive. Ms. Lambie, Mr. Desroches, and Ms. Adams were members of the Quality Committee at The Hospital.

[8] The class period for the proposed class action is from 2000 to date. Ontario was the operator of The Hospital from 2000 to December 15, 2008, when it divested The Penetanguishene Psychiatric Hospital to the defendant Waypoint.

[9] The Hospital was throughout the class period a public hospital under the Public Hospitals Act.[^3] Ontario’s Ministry of Health supervises public hospitals in Ontario.

[10] The Hospital admitted two types of involuntary patients: (a) involuntary patients admitted pursuant to the Mental Health Act,[^4] as The Hospital is a designated psychiatric facility under that Act; and (b) “forensic” involuntary patients, as The Hospital is also a designated hospital pursuant to Part XX.1 (Mental Disorders) of the Criminal Code.[^5]

[11] The fundamental allegation of the Plaintiffs is that using seclusion orders and behaviour management plans, The Hospital’s patients have routinely been subjected to: (a) solitary confinement (“seclusion”); and (b) the abuse of restraints. The Plaintiffs submit that the seclusion and the restraints violate acceptable professional, medical, and ethical standards, including internationally recognized norms against torture and cruel, inhumane or degrading treatment or punishment.

[12] The Defendants deny that there were any unlawful restraints including seclusion amounting to solitary confinement, which is a type of restraint. Further, the Defendants deny that the Plaintiffs’ action is certifiable. The Defendants dispute all of the certification criteria.

[13] For the reasons that follow, the Plaintiffs’ Certification Motion is dismissed.

B. Overview

[14] For the purposes of the Certification Motion, the Plaintiffs advance the following causes of action: (a) negligence as against all of the Defendants; (b) breach of fiduciary duty and knowing assistance as against all of the Defendants; (c) breach of sections 7 and 12 of the Canadian Charter of Rights and Freedoms[^6] as against all of the Defendants; (d) vicarious liability and breach of non-delegable duty for the acts and omissions of its officers and employees as against Ontario; a€(e) vicarious liability for the acts and omissions of its officers, directors, and employees as against Waypoint.

[15] The Plaintiffs allege that the excessive use of solitary confinement and restraints constitutes systemic negligence and arises from the operational implementation of decisions for which Ontario is liable. In the alternative, the Plaintiffs allege Ontario’s decisions and conduct do not concern matters of “core policy” and were irrational and not done in good faith, such that Ontario cannot rely on Crown immunity for core policy decisions under common law or under s. 11(4), (5) and (7) of the Crown Proceedings and Liability Act, 2019.[^7]

[16] In response to the Certification Motion, it is Ontario’s position that the Plaintiffs do not satisfy the cause of action criterion for any causes of action after Ontario divested itself of the psychiatric facility. For the period between 2000 to 2008, Ontario submits that there are no certifiable causes of action because the Plaintiffs have pleaded claims in direct liability for which there is crown immunity. Then, Ontario submits that that the class definition criterion, the common issues criterion, and the preferable procedure criterion are not satisfied. Ontario did not contest the Representative Plaintiff criterion.

[17] In response to the Certification Motion, it is Waypoint’s position that the Plaintiffs satisfy the cause of action criterion save for: (a) the claims for breach of fiduciary duty; and (b) the claims against the individual Defendants (Ms. Lambie, Mr. Desroches, and Ms. Adams). Waypoint submits that there is no basis in fact for any common issues against the individual defendants. Waypoint submits that the class definition criterion, the common issues criterion, and the preferable procedure criterion are not satisfied. Waypoint accepts that the Representative Plaintiff criterion is satisfied, save for Ms. Hindrea, but Waypoint objects to the adequacy and to certain provisions of the Litigation Plan.

[18] For the reasons that follow:

a. For the class period before December 15, 2008, the Plaintiffs satisfy the cause of action criterion as against Ontario for: (a) negligence; (b) breach of fiduciary duty; (c) breach of sections 7 and 9 of the Charter; and (d) vicarious liability.

b. For the class period after December 15, 2008, the Plaintiffs satisfy the cause of action criterion as against Waypoint for: (a) negligence; (b) breach of fiduciary duty; (c) breach of sections 7 and 9 of the Charter; and (d) vicarious liability.

c. The Plaintiffs do not satisfy the cause of action criterion as against Ms. Lambie, Mr. Desroches, and Ms. Adams, and the proposed class action should be dismissed as against them.

d. The Plaintiffs satisfy the class definition criterion.

e. The Plaintiffs do not satisfy the common issues criterion.

f. The Plaintiffs do not satisfy the preferable procedure criterion.

g. The Plaintiffs could have but do not satisfy the representative plaintiff criterion because of a deficient litigation plan.

[19] In short, some of putative class members have individual causes of action against Ontario or Waypoint; however, there are no meaningful common issues and a class proceeding is not the way, much less the preferable way, for the putative class members to access justice for any misdeeds by Ontario or Waypoint at The Penetanguishene Psychiatric Hospital.

[20] Accordingly, the Certification Motion is dismissed.

C. Procedural Background

[21] On July 17, 2020, this action was commenced by Notice of Action. The lawyer of record and proposed Class Counsel is Rochon Genova LLP.

[22] On September 30, 2020, the Plaintiffs delivered their Statement of Claim.

[23] The Plaintiffs claim: (a) general damages of $125 million; (b) damages under s. 24 (1) of the Charter in an amount to be determined by the court; (c) damages pursuant to s. 61 of the Family Law Act; (d) punitive damages of $75 million; and (e) pre-judgment and post-judgment interest, calculated in accordance with sections 128 and 129 of the Courts of Justice Act.[^8]

[24] On September 12, 2022, the Plaintiffs moved for certification.

[25] On November 29, 2022, the Plaintiffs delivered an Amended Statement of Claim.

[26] On December 7, 2022, Ontario and Waypoint respectively delivered Statements of Defence.

[27] Ontario’s lawyer of record is Crown Law Office – Civil, Ministry of the Attorney General.

[28] Waypoint’s, Ms. Lambie’s, Mr. Desroches’, and Ms. Adams’ lawyer of record are Stieber Berlach LLP and Miller Thomson LLP.

[29] It was at one time intended that the parties would bring summary judgment motions returnable with the Certification Motion, but ultimately only the Certification Motion was pursued and resisted.

[30] The Plaintiffs’ Certification Motion is supported by the following evidence:

a. Affidavit dated August 5, 2022 of Michael Burton Alexander. Mr. Alexander is a proposed Representative Plaintiff.

b. Affidavit dated November 8, 2023 of Dr. John Bradford. Dr. Bradford is a forensic psychiatrist with over forty-five years of experience. He worked at The Penetanguishene Psychiatric Hospital for one year (July 2016 to June 2017), where he was the most responsible physician for twenty patients including Mr. Stolove. Dr. Bradford is a former Professor and Head of the Division of Forensic Psychiatry at the University of Ottawa, Faculty of Medicine (1990-2012). He had various roles as a psychiatrist at the Royal Ottawa Hospital (1978 to 2016). Dr. Bradford obtained a degree in medicine and a diploma in psychological medicine in 1976 and holds specialist degrees in psychiatry from South Africa, the United Kingdom, the United States and Canada. He also holds an additional qualification in Forensic Psychiatry from the American Board of Psychiatry and Neurology.

c. Affidavits dated September 11, 2022 and November 6, 2023 of Dr. Johann Brink. Dr. Brink is a forensic psychiatrist and the former Clinical Director for the Regional Psychiatric Centre in Abbotsford, British Columbia, a maximum security facility. He has over thirty years experience treating patients with serious mental illnesses.

d. Affidavit dated August 24, 2022 of Sarah Butterworth. Ms. Butterworth is a registered psychotherapist and a former Waypoint Behavioural Support Specialist. She worked at The Penetanguishene Psychiatric Hospital from February 17, 2015 to September 24, 2021.

e. Affidavit dated September 8, 2022 of Richard DeJong. Mr. DeJong is a proposed Class Member.

f. Affidavits dated September 9, 2022 and November 6, 2023 of Kelly Draper. Ms. Draper is the litigation guardian of Mr. Benjamin and a proposed Representative Plaintiff for the Family Members Class.

g. Affidavit dated September 8, 2022 of Christopher Paul Ducharme. Mr. Ducharme is a proposed Representative Plaintiff.

h. Affidavits dated September 10, 2022 and November 3, 2023 of Dr. Julian Gojer. Dr. Gojer is a forensic psychiatrist with over thirty years of practice. He is the Acting Clinical Director and Staff Psychiatrist at the Royal Ottawa Hospital. He is an Assistant Professor of Psychiatry at the University of Ottawa.

i. Affidavits dated October 11, 2022 and November 3, 2023 of Dr. Stuart Grassian. Dr. Grassian is a physician. He is board-certified in psychiatry by the American Board of Psychiatry and Neurology. He has had a clinical practice in psychiatry for over forty-five years. He was a faculty member of Harvard Medical School for over twenty-five years. He is a world renowned scholar in the psychiatric effects of solitary confinement.

j. Affidavit dated September 12, 2022 of Linda Hindrea. She is a co-litigation guardian for Ruben Stolove. Ms. Hindrea is a proposed Representative Plaintiff for the family class members.

k. Affidavit dated September 8, 2022 of Barron Jenner. Mr. Jenner is a proposed Representative Plaintiff.

l. Affidavit dated November 6, 2023 of Dr. Janice L. LeBel and Dr. Kevin Ann Huckshorn. Dr. LeBel is a licensed and board-certified psychologist with an Ed.D./Ph.D., and Dr. Huckshorn is a certified mental health nurse and substance abuse clinician with a doctorate in nursing. Dr. LeBel is the Director of System Transformation for the Massachusetts Department of Mental Health. Drs. LeBel and Huckshorn are the Principal Investigator and Co-Principal Investigator respectively and the developers of “Six Core Strategies to Prevent Conflict, Violence and the use of Seclusion and Restraint”. The Six Core Strategies is a clinical practice implemented in many facilities including in Ontario psychiatric hospitals.

m. Affidavits dated September 12, 2022 and November 8, 2023 of Jon Sloan. Mr. Sloan is the Client Services Manager at Rochon Genova LLP. He obtained documents pursuant to freedom of information requests pursuant to the Freedom of Information and Protection of Privacy Act.[^9]

n. Affidavit dated November 3, 2023 of Howard Sapers. Mr. Sapers is a consultant on public policy, correctional operations, compliance, and oversight in the justice sector. He was the Correctional Investigator of Canada (2004-2016) and the Independent Advisor on Corrections Reform for the province of Ontario. He is the Chair of the Structured Intervention Unit Implementation Advisory Panel, tasked with monitoring and evaluating the implementation and operation of the new Structured Intervention Units (SIUs). SIUs are the Correctional Services Canada’s (“CSC”), the federal government’s agency for the operation of penitentiaries, response to class action decisions that found that administrative segregation violated inmates’ Charter rights.

o. Affidavit dated November 5, 2023 of Gregory M. Smith. Mr. Smith is a consultant and former hospital Chief Executive Officer with over forty-five years of experience in the administration of psychiatric hospitals, including those with maximum security forensic units that are tasked with the treatment and care of individuals with mental illnesses. He has published extensively on seclusion and restraint.

p. Affidavit dated September 11, 2022 of Micha Stolove. He is the co-litigation guardian of Ruben Stolove and a proposed representative plaintiff for the Family Class Members.

q. Affidavit dated September 11, 2022 of Dr. Stephen N. Xenakis. Dr. Xenakis is a physician who has been certified by the American Board of Psychiatry and Neurology in general psychiatry and child and adolescent psychiatry. He is a retired Brigadier General of the U.S. Army. He had multiple positions as a clinician for the U.S. Army. He has extensive experience in clinical psychiatry and the assessment of individuals subjected to solitary confinement and other forms of torture. He served as an Assistant Inspector General for The Surgeon General of the Army.

[31] Ontario responded to the Certification Motion with the following evidentiary record:

a. Affidavit dated May 4, 2023 of Dr. Gary Chaimowitz. Dr. Chaimowitz is a physician certified in psychiatry. He is designated as Founder – Forensic Psychiatry by the Royal College of Physicians. Among other things, he is a professor at McMaster University and the Head of Forensic Service at St. Joseph’s Healthcare in Hamilton, Ontario.

b. Affidavit dated May 3, 2023 of Dianna Cochrane. Ms. Cochrane is the Acting Manager of the Forensics and Justice Unit in the Mental Health and Addictions Division at the Ministry of Health since October 2019. She previously was Team Lead of the Ministry’s Forensic Mental Health, Strategic and Planning Division. She worked with the Assistant Deputy Minister and liaised with designated forensic psychiatric hospitals and the Ontario Review Board, which reviews placements in forensic psychiatric hospitals and which reviews restraint and seclusion events.

c. Affidavit dated March 31, 2023 of Dr. George Brian Jones. Dr. Jones was Chief of the Forensics Division from 2001 to 2009 and VP of Forensics from 2009 to 2014 at The Penetanguishene Psychiatric Hospital. He was responsible for the five clinical forensic programs and for the Waypoint Clinical Liaison Office, which managed The Hospital’s appearances before the Ontario Review Board.

[32] The Defendants Waypoint, Ms. Lambie, Mr. Desroches, and Ms. Adams responded to the Certification Motion with the following evidentiary record:

a. Affidavits dated August 17, 2023 and December 20, 2023 of Linda Adams. Ms. Adams is a Defendant.

b. Affidavits dated August 17, 2023 and December 20, 2023 of Robert Desroches and a correcting letter dated February 14, 2024. Mr. Desroches is a Defendant.

c. Affidavit dated August 23, 2023 of Dr. Plabon Ismail. Dr. Ismail is a psychiatrist employed by The Penetanguishene Psychiatric Hospital since 2014. He has been involved in the treatment of Mr. Benjamin.

d. Affidavits dated August 23, 2023 and September 8, 2023 of Dr. Craig Hudson. Dr. Hudson is a staff psychiatrist with privileges at The Penetanguishene Psychiatric Hospital since August 2017. He has been the most responsible physician for Mr. Ducharme since August of 2018 and for Mr. DeJong since November 2022.

e. Affidavits dated August 17, 2023 and December 20, 2023 of Carol Lambie. Ms. Lambie is a Defendant.

f. Affidavit dated August 21, 2023 of Dr. Achal Mishra. Dr. Mishra is a forensic psychiatrist with privileges at The Penetanguishene Psychiatric Hospital. He was employed by Waypoint since July of 2018. He has been the most responsible physician for Mr. Stolove.

g. Affidavit dated August 22, 2023 of Dr. Mara Muraven. Dr. Muraven is a staff psychiatrist with privileges at The Penetanguishene Psychiatric Hospital since March of 2021. She has a medical doctorate from McGill University. Her residency was at the New York University School of Medicine from 1997-2002, which included training in psychiatry and the completion of a forensic psychiatry fellowship. She has been a staff psychiatrist or locum at St. Michael’s Hospital and Sunnybrook Health Sciences in Toronto, Somerset West Community Health Centre in Ottawa, Lake of the Woods Hospital in Kenora, Ontario. Her patients at The Penetanguishene Psychiatric Hospital included Mr. Alexander and Mr. Jenner.

[33] On November 3, 2023, Dr. Gojer and Mr. Sapers were cross-examined. On November 6, 2023, Ms. Draper was cross-examined. On November 7, 2023, Ms. Butterworth was cross-examined. On December 14, 2023, Ms. Hindrea and Micha Stolove were cross-examined. On December 22, 2023, Ms. Cochrane was cross-examined. On January 8, 2024 and January 10, 2024, Dr. Muraven was cross-examined. On January 11, 2024, Dr. Grassian was cross-examined. On February 12, 2024, Mr. Smith was cross-examined. On February 13, 2024, Dr. Chaimowitz was cross-examined. On February 15, 2024, Mr. Desroches was cross-examined. On February 16, 2024, Dr. Huckshorn and Dr. LeBel were cross-examined. On February 21, 2024, Dr. Ismail and Mr. Sloan were cross-examined. On February 22, 2024, Dr. Brink and Dr. Xenakis were cross-examined. On February 23, 2024, Dr. Mishra was cross-examined. On February 28, 2024, Dr. Jones was cross-examined. On February 29, 2024, Ms. Lambie was cross-examined. On March 1, 2024, Ms. Adams was cross-examined. On March 5, 2024, Dr. Bradford was cross-examined. On March 7, 2024, Dr. Hudson was cross-examined.

[34] The motion records for the Certification Motion were voluminous. The Plaintiffs’ Certification Motion Record was 5,004 pages. Their Supplementary Motion Record was 156 pages. The Plaintiffs’ Reply Motion Record was 1,314 pages. Ontario’s Supplementary Motion Record was 951 pages. and its Further Supplementary Motion Record was 23 pages. Waypoint’s Motion Record was 1,189 pages. Its Sur-Reply Motion Record was 174 pages. The joint brief of the Defendants’ Answers to Undertakings was 537 pages. The joint transcript brief was 5,592 pages.

[35] The Certification Motion was argued on April 17, 18, and 19, 2024. Judgment was reserved.

D. The Evidentiary Pox

[36] In support of the Certification Motion, the Plaintiffs proffered evidence from:

a. six patients of The Penetanguishene Psychiatric Hospital or their litigation guardians; namely: Mr. Alexander, Ms. Draper (for Mr. Benjamin), Mr. DeJong, Mr. Ducharme, Ms. Hindrea (for Ruben Stolove), Mr. Jenner, and Micha Stolove (for Ruben Stolove);

b. three witnesses with respect the operation of The Hospital; namely: Dr. Bradford, Ms. Butterworth, and Mr. Sloan; and,

c. eight experts; namely: Dr. Brink, Dr. Gojer, Dr. Grassian, Dr. Huckshorn, Dr. LeBel, Mr. Sapers, Mr. Smith, and Dr. Xenakis.

[37] In opposition to the Certification Motion, the Defendant Ontario proffered evidence from:

a. one expert, Dr. Chaimowitz; and,

b. two witnesses familiar or involved with the role of The Penetanguishene Psychiatric Hospital in its treatment of involuntary forensic patients; namely: Ms. Cochrane and Dr. Jones.

[38] In opposition to the Certification Motion, the Defendant Waypoint relied on the evidence of Dr. Chaimowitz and proffered evidence from:

a. the co-Defendants Ms. Lambie, Mr. Desroches, and Ms. Adams; and

b. four treating physicians; namely: Dr. Ismail (treated Mr. Benjamin); Dr. Hudson (treated Messrs. DeJong and Ducharme); Dr. Mishra (treated Ruben Stolove) and Dr. Muraven (treated Messrs. Alexander and Jenner).

[39] The Plaintiffs and the Defendants respectively made a full throated and aggressive attack on the admissibility, reliability, credibility, relevance, cogency, and weight to be given to the evidence of their opponent’s witnesses and to the bias, reliability, credibility, and morality of the witnesses.

[40] A great deal of the respective attacks on the opponent’s witnesses and the arguments were irrelevant to the Certification Motion. A Certification Motion focuses on the certification criterion and not on the merits of the causes of action. Some of the attacks on an opponent’s witnesses were about collateral issues that would not have been relevant even on a merits hearing.

[41] The Plaintiffs and the Defendants respectively littered their factums with presumptions or conclusory submissions and personal opinions and made full throated rhetorical and polemical arguments on a myriad of merit issues and collateral issues that might possibly have been relevant for the summary judgment motion that was at one time envisioned. These arguments cannot be fairly addressed on a Certification Motion and would not have been appropriate to decide even on a summary judgment motion.

[42] As a preliminary matter, the Plaintiffs requested that: (a) portions of the affidavits of the four treating physicians; and paragraphs 92-106 of the affidavit of Mr. Desroches, which concerned Ms. Butterworth’s employment and personal history, be struck. As I shall explain below, this request was meritless and at the hearing, the Plaintiffs more or less withdrew their motion to strike evidence and proposed that their objections could be dealt with as a matter of weight.

[43] The Defendant Waypoint submitted that if the Plaintiffs’ action was certified, it was reserving the right to object to the admission of the evidence of Dr. Bradford, Dr. Brink, and Mr. Smith at the common issues trial because these witnesses are alleged to have breached confidentiality agreements with Waypoint arising from consulting contracts. As I shall explain below, for the purposes of the Certification Motion, this request was pointless.

[44] As will become apparent from the discussion later in these Reasons for Decision, a critical issue that was relevant to the Certification Motion and an issue that was ferociously debated was whether or not there was some basis in fact for concluding that the Defendants breached s. 7 of the Mental Health Act, which states: “This Act does not affect the common law duty of a caregiver to restrain or confine a person when immediate action is necessary to prevent serious bodily harm to the person or to others”. However, notwithstanding the critical importance of this issue, although the leading case was noted by the parties, neither the Plaintiffs nor the Defendants undertook legal research to elucidate the common law duty to restrain. That legal research ought to have been done and ultimately it was done by the court in order to fairly and justly resolve the debate at least to the extent necessary for the determination of the certification criterion.

[45] There is a great deal to criticize about both sides’ aggressive attacks on the admissibility, reliability, credibility, relevance, cogency, and weight to be given to their opponent’s witnesses. These attacks were far too often just disrespectful ad hominem attacks or disrespectful subjective disagreement with the conclusions of the opponent.

[46] In the immediate case, there was a great deal of subjective evidence of the beliefs of the witnesses about whether the Defendants actually met the standard of care for a high security forensic psychiatric hospital. This subjective evidence and argument was not helpful, and it was particularly unhelpful because a Certification Motion is not a merits motion.

[47] Both parties eschewed objective criterion when it did not suit their purposes. There was a superabundance of subjective is/isn’t opinion evidence and argument about whether seclusion and restraint at a psychiatric hospital was equivalent to solitary confinement. Thus, there was an arid argument about whether the treating physicians could meaningfully opine about whether there was administrative segregation at The Penetanguishene Psychiatric Hospital because working in a hospital they were unfamiliar with what goes on at penitentiaries. And there was an arid argument about whether Mr. Sapers could meaningfully opine about whether there was administrative segregation at The Hospital because he was unfamiliar with psychiatry not being a psychiatrist working in a forensic psychiatric hospital.

[48] The Plaintiffs subjectively believed and damningly and vehemently testified that their plight at The Penetanguishene Psychiatric Hospital was worse than their experiences of administrative segregation in criminal detention centres, and the indignant Defendants defensively and subjectively testified that there was nothing akin to administrative segregation at The Hospital.

[49] Both sides accused the other of misrepresenting the other’s case when responding to it and both sides accused the other of not responding to the other’s case. These meta-arguments about the arguments of the parties passing like ships in the night were true, but that the parties are subjectively self-indulgent and do not actually address the arguments of the opponent is not helpful to the court.

[50] Both sides are entitled to proffer evidence and opinion about what actually goes on at The Penetanguishene Psychiatric Hospital, but objective criterion will be used to decide whether the Plaintiffs’ case satisfies the certification criterion.

[51] Not surprisingly, the Plaintiffs testified that they felt punished by the seclusion and restraint. The Plaintiffs then argued that since they were not cross-examined on this point, it was proven that The Penetanguishene Psychiatric Hospital used seclusion and restraint as punishment. This submission is not how evidence works. Evidence does not become true because it is not subject to cross-examination, and the court, be it judge or jury, must decide whether the evidence is believable, and in the immediate case, in any event, the Plaintiffs’ self-serving evidence was not uncontroverted. It was contradicted by the Defendants’ subjective evidence.

[52] In any event, the subjective beliefs of the Plaintiffs and of the Defendants on the issue of punishment was not helpful. It remains to be proven whether and to what extent if at all The Penetanguishene Psychiatric Hospital used seclusion and restraint as punishment.

[53] For the purposes of the Certification Motion, I shall not be striking any evidence, and I shall give the evidence of all the witnesses the weight that it deserves for the purposes of a Certification Motion.

[54] A Certification Motion is a procedural motion about the five certification criterion and not a merits determination. Not surprisingly, a plaintiff will say, as did the Plaintiffs exuberantly in the immediate case, that the defendant is culpable and in need of behaviour modification. Not surprisingly, a defendant will plead innocence and be indignant at the suggestion of wrongdoing. However, whether the damnation or the denial or exculpation is true is not a matter to be resolved at the Certification Motion.

[55] That all said, it is necessary to say something more about the Plaintiffs’ motion to strike the evidence of the treating doctors because it rests on the Plaintiffs’ submission that Waypoint breached the court’s Order with respect to the evidence of the treating physicians. This was a very ill-advised submission.

[56] It is also necessary to say something about the Defendants’ reservation of rights with respect to the evidence of Dr. Bradford, Dr. Brink, and Mr. Smith, which was ill-advised.

[57] The crucial factual nexus in the Plaintiffs’ proposed class action is the circumstances at The Penetanguishene Psychiatric Hospital in which the involuntary patients in the High Secure Provincial Forensic Program are restrained and placed in seclusion. This crucial factual issue overwhelmingly concerns the mental health and treatment provided to the patients and putative class members. In any type of class action involving medical treatment or damages claims based on injuries to mental or physical health, it is almost mandatory, and it is at least normal and typical that the representative plaintiff, who is championing the case for the class members, will sacrifice his or her privacy by providing those medical records.

[58] Typically, the representative plaintiff may seek a Sealing Order or a Confidentiality Order about the disclosure of these personal medical records. In the immediate case, out of an abundance of caution, it was the Defendants that sought a court Order to govern the use of the Plaintiffs’ medical records and to govern the evidence of the treating physicians about those medical records and the associated health care. The Defendants brought an unopposed motion for a Protective Order with respect to the sealing and non-disclosure of confidential health and other information. I granted the order on August 25, 2023. I granted a Consent Order dated August 18, 2023 about the evidence of the treating doctors of the Plaintiffs. The Consent Order was the product of intense negotiations.

[59] In the immediate case, the four treating physicians delivered affidavits and were cross-examined extensively. Then, the Plaintiffs asked that their testimony, which is obviously highly relevant, be struck on the basis that the Defendants had violated the court’s Consent Order. The Plaintiffs argued that the Defendants blatantly breached the Consent Order authorizing evidence from the treating physicians. The Plaintiffs submitted that portions of the treating physicians’ evidence were beyond the scope of the Consent Order, was procured in breach of the Plaintiffs’ confidentiality, which is a physician’s ethical and professional responsibility to protect. The Plaintiffs submitted that the disclosures were prejudicial and should be struck from the evidentiary record. The Plaintiffs shrilly complained that they had been prejudiced and placed on an unequal footing in the litigation.

[60] The Plaintiffs’ request and their argument for striking the treating doctors’ evidence was very ill-advised.

[61] The mere request by the Plaintiff to strike critical and necessary information, left a strong impression that the Plaintiffs were suppressing relevant evidence. It gave the impression that the Plaintiffs were attempting to hobble and handicap the Defendants’ ability to provide evidence to respond to the Plaintiffs’ evidence about the circumstances of their restraint and seclusion. Moreover, the suppression of the details skewered and distorted the evidence about the seclusion of the Plaintiffs.

[62] For example, the Plaintiffs’ evidence that a patient in seclusion had his water turned off and had to drink out of the toilet has a different persuasive influence when the court learns that the patient had a history of destroying the plumbing and flooding the seclusion room.

[63] The suppression of the evidence from the treating doctors would have resulted in an unbalanced and unreliable evidentiary picture of the operation of the minimal or least restraint principle at The Penetanguishene Psychiatric Hospital.

[64] Moreover, the Plaintiffs’ argument to strike the evidence was fallacious. There was no violation of the court’s Consent Order. If there was a violation, the Plaintiffs waived any objection by cross-examining. If there was a breach of the court Order – which there was not – the Plaintiffs should have immediately brought it to the court’s attention to be dealt with and not after the delivery of 463 pages of factums and an evidentiary record of just short of 15,000 pages.

[65] The Defendants’ reservation of rights about the alleged violation of confidentiality orders was also ill-advised but not very ill-advised because the Defendants ultimately did not attempt to suppress any evidence.

[66] If Dr. Bradford, Dr. Brink, and Mr. Smith had been summoned as witnesses and had Waypoint moved to strike the summons on the grounds that they had a conflict of interest because of confidentiality agreements, I would have dismissed the motion. These witnesses had relevant and important evidence. There is no property in a witness, and a court order would have exculpated the witnesses from a breach of contract allegation. The Defendants ultimately did the right thing and just tested Dr. Bradford’s, Dr. Brink’s, and Mr. Smith’s evidence by cross-examination.

[67] In what follows, I shall not be deciding the merits, and I shall not be deciding the myriad of issues that were outside the boundaries of a Certification Motion, and I shall just describe the evidence and the argument that is relevant to the five certification criterion.

1. The Governance, Administration, and Psychiatric Programs of The Hospital

[68] Waypoint Centre for Mental Health Care, formerly known as the Mental Health Centre Penetanguishene, (“The Penetanguishene Psychiatric Hospital” or “The Hospital”) is a forensic psychiatric hospital in Penetanguishene, Ontario.

[69] The Penetanguishene Psychiatric Hospital formerly included the Oak Ridge Division, which was a physically separate unit. The horror that went on at the Oak Ridge Division between 1968 and 1979 is not the subject of the immediate proposed class action but was the subject of Barker v. Barker of which more will be said below.

[70] The Penetanguishene Psychiatric Hospital operates pursuant to the Public Hospitals Act[^10] and the Not-for-Profit Corporations Act, 2010.[^11] The Hospital is subject to the Health Care Consent Act, 1996[^12] and the Substitute Decisions Act, 1992.[^13] The Hospital is a Schedule 1 designed psychiatric facility and hospital under the Mental Health Act. The Hospital is also a designated hospital pursuant to Part XX.1 (Mental Disorders) of the Criminal Code.[^14]

[71] As a public hospital, The Hospital is regulated by the Ministry of Health and Long-Term Care.

[72] When known as the Mental Health Centre Penetanguishene, The Hospital was operated by Ontario’s Ministry of Health and Long-Term Care. Ontario’s direct administration lasted until December 15, 2008, when The Hospital was divested to Waypoint.

[73] After divestment, the Ministry of Health’s relationship with The Penetanguishene Hospital is pursuant to the Public Hospitals Act[^15] and the Mental Health Act[^16] and is similar to its relationship with other psychiatric hospitals.

[74] Ontario provides strategic leadership, planning, and central oversight as part of the health care and forensic system in Ontario. Since divestment, Ontario has not had any role in establishing or maintaining the policies or procedures related to the use of seclusion and restraint at psychiatric hospitals, including The Penetanguishene Psychiatric Hospital.

[75] The Minister of Health has not issued operational or policy directives to The Penetanguishene Psychiatric Hospital’s Board of Directors regarding the use of seclusion and restraint. The Minister of Health has not designated or appointed an inspector with respect to The Hospital to audit, review or examine the use of seclusion and restraint at The Hospital.

[76] Under the Public Hospitals Act, every hospital shall be governed and managed by a Board of Directors, who shall, among other things, monitor activities in the hospital and take such measures as it considers appropriate to ensure compliance with the Public Hospitals Act and the Act’s regulations. The Board of Directors grants medical staff privileges to treat patients and has power to revoke, suspend or refuse to reappoint a member of the medical staff.

[77] As a public hospital, The Penetanguishene Psychiatric Hospital is subject to the Excellent Care for All Act.[^17] Under that Act, The Hospital is required to establish and maintain a Quality Committee, which is responsible for, among other things, monitoring and reporting to the Board of Directors ensuring that best practices with information supported by available scientific evidence is translated into materials distributed to employees providing services and to subsequently monitor the use of these materials. The Hospital is also required to carry out surveys to solicit views about the quality of care provided, have a patient relations process to receive, review and resolve complaints from patients or their caregivers, and to develop an annual quality improvement plan, which is to be made publicly available.

[78] From 1986 until 2005 (pre-divestment), The Penetanguishene Psychiatric Hospital’s Administrator and Officer in Charge of Waypoint was George J. Kytayko. Before the divestment of The Hospital in 2008, Dr. Jones served as both the Vice President Forensic Division Administration and Chief Psychiatrist and Dr. Russel L. Fleming served as Chief Psychiatrist.

[79] Until her retirement in June 2022, Carol Lambie was the President and CEO of The Penetanguishene Psychiatric Hospital beginning from the date of Ontario’s divestment of The Hospital. She had worked in the healthcare sector for more than 35 years and before joining The Hospital, she was the CEO of the Penetanguishene General Hospital and the interim CEO of Huronia District Hospital in Midland, Ontario. She is a member of the Institute of Corporate Directors and Certified Professional Accountants Canada and Ontario, as well as the Canadian College of Health Leaders. She has a certificate in mental health law from Osgoode Hall Law School at York University. She was the “Officer in Charge” of The Hospital pursuant to the Criminal Code. She is accountable to The Hospital’s Board of Directors for the overall operation and performance of The Hospital. Together with professional staff and managers, Ms. Lambie was responsible for developing policies for The Hospital including policies for the safety and wellbeing of patients and The Hospital’s staff. Ms. Lambie, as President & CEO, had ultimate responsibility with respect to the development, implementation, evaluation and improvement of patient care strategies and for in-patient programs, including policies and practices related to the use of seclusion and restraint.

[80] Robert Desroches is a Registered Nurse with a BSc. (Nursing) from McMaster University (1992) and a Master of Health Science degree in Health Administration from the University of Toronto (2009). He is a Certified Health Executive with the Canadian College of Health Leaders. He commenced employment at The Penetanguishene Psychiatric Hospital in 1992. He is currently a member of the Senior Leadership Team and his positions at The Hospital have included Vice President, Clinical Services. He is now Chief Operating Officer. Clinical managers and program directors report to him. He is a designate of the “Officer in Charge” pursuant to the Criminal Code. Since April of 2015, Mr. Desroches has been the Vice-President, Clinical Services. He is accountable to the President and CEO. As COO, Mr. Desroches also has significant operational responsibilities relating to oversight of seclusion and restraint, including the development and implementation of outcome oriented, patient focused, and patient centered clinical services.

[81] Linda Adams is a registered nurse and Certified Health Executive. She has a MA from the University of Toronto. She has been a vice president at The Penetanguishene Psychiatric Hospital since 2015, when she joined The Hospital as Chief Nursing Executive. In 2021, her title changed to Vice President Patient Experience and Chief Nursing Executive. From time to time, she has also been Vice President of Research and Academics. She has administrative oversight over clinical informatics, professional practice, quality, patient safety, and risk. Ms. Adams is a member of the Senior Leadership Team and of the Quality Committee. Ms. Adams is responsible for holding staff accountable for their practice and the quality of care provided by staff at The Hospital including the use of seclusion and restraints. She is responsible for identifying risks and implementing The Hospital’s principles and including the minimum restraint principle and reducing seclusion and restraint use.

[82] There are approximately 750 staff members in the programs and services included in the Clinical Services Division of The Penetanguishene Psychiatric Hospital. Much of the staff are regulated health professionals. Physicians and psychologists are regulated by the College of Physicians and Surgeons. Nurses are regulated by the College of Nurses.

[83] The Occupational Health and Safety Act[^18] requires Waypoint to take every reasonable precaution to protect its staff and to maintain a safe workplace.

[84] The Penetanguishene Psychiatric Hospital’s patients have access to the Psychiatric Patient Advocate Office (“PPAO”). This office is a program of the Ontario government for patients at psychiatric hospitals in Ontario. The PPAO investigates patient complaints, including the use of seclusion and restraint, and has direct access to the CEO and senior staff at the psychiatric hospital. Under this program there is at least one Patient Advocate or Rights Advisor at The Hospital. Patients may request an appointment with either a Patient Advocate or Rights Advisor.

[85] The Penetanguishene Psychiatric Hospital operates two main programs: (a) the Regional Programs; and (b) the High Secure Provincial Forensic Program.

[86] The High Secure Provincial Forensic Program is the main focus of this proposed class action. It is for male patients.

[87] The Regional Program is for male or female patients. For the Regional Program, Waypoint admits patients pursuant to the Mental Health Act on a voluntary, informal, or involuntary basis.

[88] The number of in-patient beds at The Hospital fluctuates around 315 beds. The number of out-patients fluctuates around approximately 2,100 patients, including 944 outpatients registered as part of a Family, Child and Youth Mental Health Program.

[89] Under the Regional Program, The Penetanguishene Psychiatric Hospital provides a variety of treatment programs:

a. the Acute Assessment Program, which specializes in short-term crisis intervention, risk assessment, rapid stabilization, symptom reduction and active treatment;

b. the Bayview Program for Dual Diagnosis, which provides services to individuals with a developmental disability and mental health needs;

c. the Brebeuf Program, which is a minimum secure forensic program;

d. the Georgianwood Program for Concurrent Disorders, which is a voluntary program for individuals with both a substance use disorder and a mental illness;

e. the Sans Souci Program for Transition and Recovery, which cares for patients with a severe and persistent mental illness, such as schizophrenia or schizoaffective disorders, affective disorders, including bipolar disorder and unipolar depression, and various disorders with an organic origin; and

f. the Horizon Program for Geriatric Psychiatry, which serves patients age 65 or older with signs and symptoms of a psychiatric disorder, and/or persons with dementia.

[90] The Penetanguishene Psychiatric Hospital’s High Secure Provincial Forensic Program receives patients: (a) who have been found unfit to stand trial or found not criminally responsible (“NCR”); (b) who have been court ordered to The Hospital for assessments or treatment order; and (c) patients admitted pursuant to the Mental Health Act.

[91] Typically, about 15% of the patients in the High Secure Provincial Program are involuntary patients under the Mental Health Act with 85% being involuntary forensic patients.

[92] Under the High Secure Provincial Forensic Program, the Penetanguishene Psychiatric Hospital provides a variety of treatment programs:

a. The Forensic Assessment Program (40 beds) has patients admitted from the courts, provincial and federal correctional facilities, forensic psychiatric hospitals, and Schedule 1 psychiatric facilities. This program assesses patients with a serious mental disorder and/or those who pose a significant risk to themselves or others. The interdisciplinary assessments examine issues related to fitness to stand trial, court issued treatment orders to assist a patient in becoming fit to stand trial, criminal responsibility assessments, and assessments of potential for future dangerousness, risk, diagnostic clarification, and future treatment potential.

b. The Awenda Program (40 beds) provides programs for males with a serious mental illness or who may be dually diagnosed. The programs are within a highly structured high-secure environment. The aim of the program is to teach socially acceptable behaviours while working on rehabilitation and treatment to stabilize a serious mental illness.

c. The Beausoleil Program (40 beds) is focused on meeting the long-term care needs of patients with a major mental illness and/or personality disorder diagnosis.

d. The Beckwith Program (40 beds) provides care in a high-secure environment to patients predominantly diagnosed with schizophrenia, bipolar disorder, treatment resistant symptoms, and/or substance abuse challenges. Patients in this program typically require one-on-one treatment. Generally, the Beckwith Program provides care for patients with the most significant challenges and who pose the most significant risk in hospital. The Beckwith Program has patients with issues such as treatment refractory illness (i.e., where the patient does not respond to treatment), where the patient or the patient’s substitute decision maker has refused the treatment, or the treatment is ineffective, and the patient cannot stabilize.

[93] Since 2018, each patient at The Penetanguishene Psychiatric Hospital has an individualized Recovery Plan of Care, developed by the inter-professional care team in collaboration with the patient. The Plan identifies treatment goals.

[94] Some - but not all patients at The Hospital - have a Crisis Prevention Plan (“CPP”) based on the patient’s idiosyncratic behavioural patterns and maladaptive behaviours. The plan includes de-escalation strategies and intervention techniques. The CPP may set out a process for a progressive reduction in restraints toward termination. The CPP may include a progression where, based on the patient’s ongoing behaviour, the application of the restraints is modified.

[95] On the Certification Motion, a controversial and contested matter was whether the CPP governed or prescribed when seclusion would be terminated or diminished by some sort of performance test that the patient must pass to end his seclusion. This was denied by Waypoint whose evidence was that seclusion was discontinued based on clinical observation and judgment and not based on whether there was compliance with the CPP.

2. Class Size

[96] It is estimated that between 2000 and 2022, there were a total of 22,616 patients at The Penetanguishene Psychiatric Hospital. Of these 18,421 were patients in the Regional Program and 3,636 were patients in the High Secure Provincial Forensic Program.

[97] There is no estimate of the number of patients subjected to confinement and restraints during this period.

3. The Divestment of The Penetanguishene Psychiatric Hospital

[98] Pursuant to s. 92 (7) of the Constitution Act, 1867,[^19] Ontario has exclusive power with respect to the establishment, maintenance, and management of hospitals and asylums. Section 92(14) of the Constitution Act, 1867 grants Ontario exclusive power over the administration of justice in Ontario.

[99] From before 2000 until December 15, 2008, Ontario operated The Penetanguishene Psychiatric Hospital as part of Ontario’s public health and hospital system and as part of the administration of justice of the Criminal Code in the courts of Ontario.

[100] On December 15, 2008, a Transfer Agreement between the Ontario Ministry of Health and Long-Term Care and Waypoint came into effect. Under the agreement Waypoint agreed to hold Ontario harmless in respect of any litigation after divestment. The Transfer Agreement stated that that the transfer does not have the effect of creating an employment, partnership or agency relationship between Ontario and Waypoint (including any of its directors, officers, employees, agents, partners, affiliates, volunteers or subcontractors) post divestment.

[101] Under the Transfer Agreement Waypoint is responsible for the operation of The Hospital and for the care of the patients. The Transfer Agreement states:

2.04 Patients

Effective at the Closing Time, the Receiving Hospital shall be responsible for the care of the in- patients and out-patients of the Hospital subject to legal requirements and the Receiving Hospital’s procedures.

[102] There is a Hospital Service Accountability Agreement appended to the Transfer Agreement. Under this agreement, Ontario’s role post-divestment was limited to providing strategic leadership and planning as well as central oversight as the steward of the health system in Ontario.

E. Involuntary Psychiatric Care in Ontario

[103] The Penetanguishene Psychiatric Hospital is a public hospital that is part of Ontario’s health care system. More particularly, it is a psychiatric hospital that provides care for seriously mentally-ill patients who have been involuntarily admitted to a psychiatric facility.

[104] There are two types of involuntary admissions to The Penetanguishene Psychiatric Hospital: (a) involuntary patients that are admitted pursuant to the Mental Health Act; and (b) “involuntary forensic patients” that are admitted pursuant to the administration of the criminal law process. Forensic patients often have had a history of admissions pursuant to the Mental Health Act before, during, and after their admission as involuntary patients pursuant to the criminal law process.

[105] With respect to the involuntary patients admitted to The Hospital pursuant to the Mental Health Act, there is an elaborate and highly regulated scheme for the detainment of mentally-ill patients. The statutory regime includes the Health Care Consent Act, 1996, and Substitute Decisions Act, 1992.

[106] Admissions pursuant to the Mental Health Act and a patient’s capacity to consent to treatment are subject to review by the Consent and Capacity Board, which is constituted pursuant to the Health Care Consent Act, 1996. Involuntary patients detained at a psychiatric facility or their representatives may apply to this administrative law tribunal for a review of the involuntary patient admission to the psychiatric facility and there are also periodic mandatory reviews of the detention.

[107] The Consent and Capacity Board has the authority to direct the officer in charge of a psychiatric facility to provide the involuntary patient with a prescribed security level or different privileges within or outside the psychiatric facility, or to provide the patient with vocational, interpretation, or rehabilitative services.

[108] The Consent and Capacity Board has the jurisdiction to transfer an involuntary patient from one psychiatric facility to another. The Penetanguishene Psychiatric Hospital is a maximum security facility and many of The Hospital’s involuntary patients are transfers from less secure psychiatric facilities.

[109] For the involuntary forensic patients at The Penetanguishene Psychiatric Hospital, there is also an elaborate and highly regulated scheme for the admission of forensic patients pursuant to the Criminal Code. This scheme involves the criminal law courts and the Ontario Review Board (the “ORB”).

[110] Under the criminal law process, an accused person may be involuntarily admitted to a psychiatric facility for an assessment of his or her fitness to stand trial and the accused may be involuntarily admitted to a designated psychiatric facility if he or she is found by a court to be unfit to stand trial or if he or she is found “NCR” (not criminally responsible by virtue of mental disorder).

[111] Once found unfit to stand trial or NCR, a forensic psychiatric patient is placed under the jurisdiction of the ORB. The Board is a tribunal established pursuant to the Criminal Code. The ORB is required by statute to consider the safety of the public, the mental condition of the forensic patient, the reintegration of the forensic patient into society, and any other needs of the forensic patient to make the least onerous and least restrictive disposition for each forensic patient as appropriate in the circumstances.

[112] The ORB reviews the involuntary admission of forensic patients every twelve months, and it can review dispositions at any time on its own motion, at the request of the hospital, or upon request from a patient. When a psychiatric facility makes a restriction on a patient’s liberty interest it is obliged to report to the ORB, and the Board conducts a restriction of liberty hearing (“ROL hearing”), an inquisitorial proceeding to consider the appropriateness of the restriction.

[113] At an ROL hearing, the ORB is empowered to summons records and witnesses, order assessments, and consider a broad range of evidence, including the forensic patient’s: (a) index offence; (b) current mental condition and health; (c) past and expected course of treatment (d) adherence to medication requirements; (e) insight into the relationship between their mental disorder and the index offence; (f) insight into the need for medication; (g) willingness to seek assistance if decompensating; (h) recent incidents of violent or threatening behaviour; and (i) the health care team’s assessment, including the likelihood of violent or otherwise criminal conduct.[^20] ORB decisions may be appealed to the Ontario Court of Appeal.

[114] The Penetanguishene Psychiatric Hospital’s patients are the most ill and difficult to treat mentally-ill patients in Ontario because of their level of violence and aggression and the difficulties controlling their behaviour. The involuntary forensic patients at the Hospital cannot be safely treated at less secure facilities. When other hospitals cannot handle their patients, they send them to The Hospital. For forensic involuntary patients this transfer is under the authority of the Ontario Review Board. For other involuntary patients the transfer is pursuant to the detention powers of the Mental Health Act.

[115] For example, in the immediate case, notwithstanding his negative opinions about The Penetanguishene Psychiatric Hospital, Dr. Gojer referred his hospital’s high-risk and violent patients to The Hospital because: “I have to protect my staff and my patients also.”

[116] The difficulty in managing the involuntary patients at The Penetanguishene Psychiatric Hospital was not disputed. By way of illustration of the magnitude of the security and safety challenges, in one three-month period in 2020, there were 46 assaults perpetrated by involuntary forensic patients. The Staff and patients at The Hospital have been attacked sometimes with weapons. Staff and patients have been stabbed, bitten, punched, kicked, urinated on, spat upon, and smeared with feces. There have been cuts, contusions, concussions, broken bones, and fear, anxiety, and stress. There have been occupational safety and labour relations grievances.

F. Restraint and Seclusion

[117] Section 25 of the Mental Health Act provides that a person detained in a psychiatric facility under Part XX.1 of the Criminal Code may be restrained, observed, and examined under the Mental Health Act and provided with treatment under the Health Care Consent Act, 1996.

[118] With respect to the use of restraint, the Patient Restraints Minimization Act, 2001,[^21] does not apply to psychiatric facilities subject to the Mental Health Act.

[119] The Mental Health Act requires hospitals to follow the minimal restraint principle, which the parties labelled the least restraint principle. The Act authorizes psychiatric facilities to restrain patients when necessary to prevent serious bodily harm to the patient or to another person by the minimal use of such force, mechanical means or chemicals as is reasonable having regard to the physical and mental condition of the patient. For present purposes, the relevant provisions of the Act are sections: 1, 20, 25, and 53, which state:

Definitions

1. (1) In this Act,

“attending physician” means a physician to whom responsibility for the observation, care and treatment of a patient has been assigned;

“Board” means the Consent and Capacity Board continued under the Health Care Consent Act, 1996;

“involuntary patient” means a person who is detained in a psychiatric facility under a certificate of involuntary admission, a certificate of renewal or a certificate of continuation;

“mental disorder” means any disease or disability of the mind; (“trouble mental”)

“officer in charge” means the officer who is responsible for the administration and management of a psychiatric facility;

“patient” means a person who is under observation, care and treatment in a psychiatric facility;

“psychiatric facility” means a facility for the observation, care and treatment of persons suffering from mental disorder, and designated as such by the Minister;

“record of personal health information”, in relation to a person, means a record of personal health information that is compiled in a psychiatric facility in respect of the person;

“restrain” means place under control when necessary to prevent serious bodily harm to the patient or to another person by the minimal use of such force, mechanical means or chemicals as is reasonable having regard to the physical and mental condition of the patient;

“senior physician” means the physician responsible for the clinical services in a psychiatric facility;

“substitute decision-maker”, in relation to a patient, means the person who would be authorized under the Health Care Consent Act, 1996 to give or refuse consent to a treatment on behalf of the patient, if the patient were incapable with respect to the treatment under that Act, unless the context requires otherwise;

“treatment” has the same meaning as in the Health Care Consent Act, 1996.

Duty of attending physician

20 (1) […]

Authority of certificate

(4) An involuntary patient may be detained, restrained, observed and examined in a psychiatric facility, […]

Conditions for involuntary admission

(5) The attending physician shall complete a certificate of involuntary admission, a certificate of renewal or a certificate of continuation if, after examining the patient, he or she is of the opinion both,

(a) that the patient is suffering from mental disorder of a nature or quality that likely will result in,

(i) serious bodily harm to the patient,

(ii) serious bodily harm to another person, or

(iii) serious physical impairment of the patient,

unless the patient remains in the custody of a psychiatric facility; and

(b) that the patient is not suitable for admission or continuation as an informal or voluntary patient.

Detention under the Criminal Code (Canada)

25. Any person who is detained in a psychiatric facility under Part XX.1 of the Criminal Code (Canada) may be restrained, observed and examined under this Act and provided with treatment under the Health Care Consent Act, 1996.

Documentation of use of restraint

53. (1) The use of restraint on a patient shall be clearly documented in the patient’s record of personal health information by the entry of a statement that the patient was restrained, a description of the means of restraint and a description of the behaviour of the patient that required that the patient be restrained or continue to be restrained.

Chemical restraint

(2) Where a chemical restraint is used, the entry shall include a statement of the chemical employed, the method of administration and the dosage

[120] The statutory history of the least restraint principle reveals that the 1970 version of the Mental Health Act,[^22] did not have a definition of “restraint”. The 1970 version of the Act was amended in 1978[^23] to introduce a definition of “restraint.” The 1978 definition of restraint included the minimal use stipulation, but without the words “when necessary to prevent serious bodily harm to the patient or to another person.” Those words were added to the 1980 version of the Mental Health Act,[^24] by An Act to amend certain Ontario Statutes to conform to section 15 of the Canadian Charter of Rights and Freedoms. The amended version of the least restraint provision came into force on December 18th, 1986 and has continued in the current version of the statute.

[121] Sections 7 and 59 of the Health Care Consent Act, 1996 recognizes the common law duty of a caregiver to restrain or confine a person when immediate action is necessary to prevent serious bodily harm to the person or to others. Sections 7 and 59 state:

Restraint, confinement

7. This Act does not affect the common law duty of a caregiver to restrain or confine a person when immediate action is necessary to prevent serious bodily harm to the person or to others.

Principles for making decision

59. (1) A person who makes a decision on an incapable recipient’s behalf concerning a personal assistance service shall do so in accordance with the following principles […]

Confinement, monitoring devices, restraint

(3) Subject to paragraph 1 of subsection (1), the person shall not give consent on the recipient’s behalf to the use of confinement, monitoring devices or means of restraint, unless the practice is essential to prevent serious bodily harm to the recipient or to others, or allows the recipient greater freedom or enjoyment.

[122] Restraint refers to the application of physical or mechanical controls on a patient. Restraint is a way to de-escalate a behavioural control emergency involving a violent or aggressive patient.

[123] Seclusion is a form of restraint. Seclusion involves the placement of a patient in a locked room to prevent or minimize bodily harm. Seclusion and restraint are used to manage behaviours that pose risks to the patient or to others.

[124] When seclusion at The Penetanguishene Psychiatric Hospital amounts to a Charter violation as torturous solitary confinement was an incendiary contentious issue on the Certification Motion.

[125] The minimal restraint principle, which is found in the Health Care Consent Act, 1996,[^25] and which, as noted above, was introduced into the Mental Health Act in 1978 is a standard in psychiatric care that governs the use of seclusion and restraints. Thus, the principle was in place 22 years before the commencement of the class period in 2000.

[126] The evidence was that the minimal restraint principle requires that: (a) seclusion or restraint be used at the psychiatric hospital only when a patient represents an imminent risk of serious bodily harm to themselves or others; (b) alternatives to the use of seclusion or restraint are explored and found to be ineffective to prevent the imminent risk of bodily harm; and (a) seclusion or restraint are used for the shortest possible duration and be discontinued once there is no longer an imminent risk of serious bodily harm.

[127] The decision to place a patient in restraint, including placing a patient in seclusion, is based on a multiplicity of factors including: (a) the patient’s diagnosis; (b) the patient’s treatment program or programs; (c) the patient’s resistance, opposition or consent to restraint or conversely his or her consent, acquiescence, or willingness to be secluded; (d) the clinical records of the patient, including records of previous restraints and seclusion; (e) the patient’s history of violence towards themselves or others before and after admission to the psychiatric facility; (f) the frequency and severity of violent conduct or threatening behaviours; (g) the risk that a patient poses to safety; (h) the potential benefits and detriments to the patient of being restrained; (i) the psychiatric facility’s responsibility to keep the patient safe; and (j) the psychiatric facility’s responsibility to keep its staff and other patients safe from harm.

[128] Seclusion can be psychologically harmful. The extent of harm will depend upon the manner and duration of the seclusion and the character, personality, idiosyncrasies of the patient and the particular nature and symptoms of his mental illness.

G. The Common Law Duty to Restrain

[129] As noted above, s. 7 of the Health Care Consent Act recognizes the common law duty to restrain. There are similar provisions in the Child, Youth and Family Services Act, 2017,[^26] the Fixing Long-Term Care Act, 2021,[^27] the Patient Restraints Minimization Act, 2001,[^28] and the Retirement Homes Act, 2010.[^29]

[130] The leading Ontario case on the common law duty to restrain is Conway v. Fleming.[^30] The parties footnoted the case in their factums, but they did not otherwise refer to it.

[131] Coincidentally, Conway v. Fleming is a case about an involuntary forensic patient at The Penetanguishene Psychiatric Hospital, albeit in the now closed Oak Ridge Division of the hospital.

[132] Conway was admitted to The Penetanguishene Psychiatric Hospital as an involuntary forensic patient pursuant to a Lieutenant Governor's Warrant. On April 14, 1998, he became agitated. He began yelling and became threatening to the staff. He was considered to be at risk of harming himself. He was agitating other patients, and he was considered to be a risk to other patients. He was locked in his room. While in his room, he continued to be in an agitated state, and in accordance with a standing order to medicate, if necessary, the hospital staff administered medication to restrain Conway without his consent.

[133] Mr. Conway sued twelve defendants working at The Hospital and the administrator of The Hospital. He sued for battery and for breach of the Charter with respect to the administration of the chemical restraint. In a judgment affirmed by the Divisional Court, Justice Gibson dismissed Mr. Conway’s action. Justice Gibson concluded that the inoculation of Mr. Conway was a form of restraint authorized by the Governor General’s warrant.

[134] And in the legal finding that is significant to the analysis of the issues in the immediate case, Justice Gibson concluded that the restraint was justified at common law. Justice Gibson stated at paragraphs 275-278, and 286 of his decision:

275. Even if the provisions of the Warrant were to be construed as insufficient to justify the injection, there is the further issue of whether the restraint of the plaintiff by the injection of medication was lawful under the common law.

276. On the basis of the reasoning in the decisions of Stewart v. Extendicare Limited, 1986 CanLII 3567 (SK QB), [1986] 4 W.W.R. 559, and Wellesley Hospital v. Lawson (1977), 1977 CanLII 29 (SCC), 76 D.L.R. (3d) 688 (S.C.C.), and the very useful article by G. Robertson, "Mental Disability and the Law in Canada" (Toronto) Carswell, 1987, I am satisfied that there was authority for the injection at common law.

277. At p. 386, [of G. Robertson article] it was stated: "Psychiatrists and other health care professionals involved in the care and treatment of a patient are under a legal duty to exercise reasonable care to ensure that the patient does not harm himself." Also at p. 389:

A psychiatric patient may pose a danger not only to himself but also to others in the hospital. The hospital must respond to that risk by providing and maintaining a reasonable level of supervision and security. That responsibility is not limited to the protection of patients. As an occupier of premises, a hospital is under a duty to take reasonable care for the safety of all persons who are lawfully on the premises.

278. […] In my view, in the circumstances here, at common law there was a right and a duty to restrain Conway when necessary to protect him, other patients, or others lawfully on the premises (staff or other patients) from harm and to prevent endangerment to the safe environment of the hospital or facility.

279. On the basis of the evidence that I have accepted, at the time Conway received the injection, the plaintiff posed a threat of serious bodily harm to himself, possibly to the staff, and while once he was in his room there was no danger to other patients, his degree of his agitation was such that he was upsetting other patients, and there was a risk of a different type of injury to himself as a result of recriminations by other patients. Considering all of the circumstances, the potentiality of consequences, it was an appropriate decision by the staff to restrain Conway by chemical injection.

[135] In his Conway v. Fleming decision, Justice Gibson referred to the Saskatchewan decision in Stewart v. Extendicare[^31] and to the Supreme Court’s decision in Lawson v. Wellesley Hospital.[^32]

[136] In the Stewart case, Stewart, who was a resident of a nursing home, was assaulted by an Alzheimer’s patient with a propensity for violence. The employees of the nursing home were found liable for failing to take reasonable precautions to prevent the violent patient from coming into contact with Stewart.

[137] In the Lawson case, in a hospital, a mentally-ill patient with known propensities to violence struck a regular hospital patient. The hospital was sued in negligence for permitting a mentally-ill patient, with known propensities to violence, to be at large in the hospital premises without adequate control or supervision of his movements.

[138] In Lawson in its defence, the hospital submitted that it was immunized from liability by s. 59 of the Mental Health Act, which stated that: “no action lies against any psychiatric facility or any officer, employee or servant thereof for a tort of any patient.” The Supreme Court held that the negligence action was not barred, and the Act could not be interpreted to relieve a psychiatric hospital of its liability for breaching its duty to visitors, staff, and patients at the hospital to keep the hospital’s patients under control. Chief Justice Laskin stated:

It was not doubted by counsel for the parties that at common law a hospital, especially one providing treatment for mentally-ill persons, would be under a common law liability if by reason of its failure to provide adequate control and supervision injury occurred to third persons by reason of the conduct or behaviour of a patient.”

H. Restraint and Seclusion at The Penetanguishene Psychiatric Hospital

[139] At The Penetanguishene Psychiatric Hospital, mechanical restraint, chemical restraint, and seclusion must be authorized by a physician by physician’s written order. Mechanical restraints and seclusion may be initiated by a nurse where there is an immediate risk of serious bodily harm to the patient, staff, or others.

[140] At The Penetanguishene Psychiatric Hospital, when a physician orders seclusion or restraint, Waypoint’s policies require documentation; namely: (a) a detailed note indicating all interventions and strategies used to de-escalate and avoid the use of seclusion and restraint; (b) the type of restraint being ordered; (c) a note providing the rationale for the use of seclusion or restraint, including a description of the risk of serious bodily harm requiring the use of restraint and recognition that these interventions are an absolute last resort; (d) a note of the type of seclusion or restraint used along with the date and time of initiation; (e) a note of the duration of the order (up to a maximum of 24 hours); (f) a note of the specific behavioural criteria and goals for discontinuation of the seclusion or restraint and documentation confirming that this was discussed with the patient; (g) a note describing destraining assessments and activities; and (h) a note of the patient’s response to the use of seclusion or restraint.

[141] At The Penetanguishene Psychiatric Hospital, a physician’s order is not required to discontinue restraint or seclusion. Staff can discontinue restraint or seclusion if they determine the patient no longer poses a serious risk of bodily harm to himself or anyone else.

[142] Save in situations of emergency, at The Penetanguishene Psychiatric Hospital, the decision to restrain a patient or to place him or her in seclusion is made by a clinical team and is a clinical decision based on the level of risk a patient poses to themselves or others. The clinical team evaluates the patient’s presenting behaviour, medical history, previous admissions, diagnoses, treatment, and any history of critical incidents such as violence or self-harm, any history of escalation leading to uncontrollable, dysfunctional, assaultive, or destructive behaviour. Presenting behaviour includes: manifestations of paranoia, rage, psychosis, destruction of property, assaults on others, creating weapons, threats of physical harm and death to staff, throwing objects and bodily waste and spitting at co-patients and staff, and attempts to leave the ward or facility without authorization.

[143] During the first hour of a placement in seclusion, there is one-to-one staff therapeutic engagement and assessment. Thereafter, therapeutic engagement occurs with the patient at intervals of at least 15 minutes or at a different frequency as ordered by the physician.

[144] While in seclusion, the patient’s vital signs are taken twice a day when safe to do so, unless ordered more frequently.

[145] Patients who are mechanically restrained have their vital signs taken hourly while awake and every four hours while asleep. There are assessments every thirty minutes to check the patient’s limb circulation and skin integrity. There are also assessments for deep vein thrombosis and the patient can be ambulated every two hours if safe to do so. If not able to ambulate, one limb at a time is released and range of motion exercises are conducted. Patients who have been chemically restrained are monitored on an ongoing basis.

[146] The patient receives his meals (food and hydration) in the seclusion room.

[147] Seclusion orders are in effect for a maximum period of twenty-four hours. Every twenty -four hours, a physician (not necessarily the most responsible or treating physician) evaluates whether the seclusion order should be renewed based on a review of all seclusion/restraint documentation including mental status assessments during the last twenty-four hours.

[148] During a patient’s seclusion, he continues to receive mental health treatment, subject to consent of the individual or their substitute decision maker. Legal counsel may visit patients and patients may receive visits from peer support workers, members of spiritual care team and in person and virtual visits and phone calls from family members.

[149] For the Beckwith units, The Hospital has two teams of four people who provide seclusion relief to patients, from 11:00 a.m. to 7:00 p.m. For the Awenda units, The Hospital has one team of four people who provide seclusion relief from 11:00 a.m. to 7:00 p.m. On other units, seclusion relief is provided by unit-based staff but may be supplemented by the seclusion relief staff from other units when available.

[150] If a patient has been in seclusion for three days, a psychiatrist who is not the patient’s attending psychiatrist will conduct an assessment that day and determine if the order for seclusion should be continued.

[151] If a patient has been in seclusion for seven days, a psychiatrist who is not the patient’s attending psychiatrist will conduct an assessment that day and determine if the order for seclusion should be continued.

[152] If a patient has been in seclusion for twenty-eight days, a psychiatrist who is not the patient’s attending psychiatrist will conduct an assessment and determine if the order for seclusion should be continued. Thereafter, there is a periodic assessment by a psychiatrist who is not the patient’s attending psychiatrist at twenty-eight day-intervals, should the patient remain in seclusion.

[153] Adjusted for the circumstance that The Penetanguishene Psychiatric Hospital is a high security facility, the Hospital’s policies on seclusion are comparable to those of other psychiatric facilities like the Centre for Addiction and Mental Health (“CAMH”) and Ontario Shores Centre for Mental Health Sciences.

[154] During the oral argument of the Certification Motion, the Plaintiffs conceded that The Penetanguishene Psychiatric Hospital’s policies and procedures were excellent on paper.

[155] However, and this is critical to the Plaintiffs’ Certification Motion, the Plaintiffs submitted that the policies ands practices were systemically not followed and there was some basis in fact for common issues and findings of liability and a base line award of aggregate damages.

[156] On this critical issue, the Plaintiffs fail to make their case. Having reviewed the evidence, I find as a fact that there is no basis in fact for the allegation that the restraint and seclusion policies and procedures were systemically not followed at The Penetanguishene Psychiatric Hospital.

[157] The Plaintiffs submitted that the core features of each and every class member’s experience was uniform. The Plaintiffs submitted that at The Penetanguishene Psychiatric Hospital there was a uniform systemic experience of: (a) departure from the least restraint principles; (b) absence of social stimulation; (c) absence of meaningful review by treating physicians; (d) arbitrary, punitive, and prolonged use of prescribed seclusion and restraint; (e) and the reversal of the onus on the patient to justify their release that give rise to a common breach and common base level of harm.

[158] There is no doubt that these core experiences occurred at The Penetanguishene Psychiatric Hospital, but there is no basis in fact for the assertion that the experiences were uniformly experienced, and there is no basis in fact that the experiences were systemic. Visualize, there was no doubt that there were departures from the least restraint principle, but whether there was a departure from the least restraint principle, can only be determined on a patient-by-patient basis.

[159] In the immediate case, what was established was that there is some basis in fact that on an individual, patient-case-by-case basis that the Defendants may have been: (a) negligent; (b) in breach of fiduciary duty; (c) in breach of sections 7 and 9 of the Charter; and (d) vicarious liable for the misconduct of their employees.

[160] I also find that there is no basis in fact that the patients at The Penetanguishene Psychiatric Hospital are systemically subjected to arbitrary, punitive, and prolonged seclusion and restraint in conditions tantamount to solitary confinement.

[161] I shall expand on these conclusions, but I emphasize there is some basis in fact that some perhaps not inconsiderable number of patients at the Penetanguishene Psychiatric Hospital have individual claims against Ontario or Waypoint for negligence – but not systemic negligence.

[162] There is some basis in fact that perhaps some not inconsiderable number of patients at The Hospital have individual claims against Ontario or Waypoint for breach of fiduciary duty – but not a systemic claim.

[163] There is some basis in fact that perhaps some not inconsiderable number of patients at the Hospital have individual claims against Ontario or Waypoint for violations of the Charter – but not systemic claims.

I. Restraint, Seclusion, Solitary Confinement, and Administrative Segregation

[164] In this section of the Reasons for Decision, I shall discuss the relationship amongst, restraint, seclusion, solitary confinement, and administrative segregation, which are focal points for the Plaintiffs’ proposed class action.

[165] Solitary confinement is characterized by three elements: (a) 22 to 24 hours of lock up per day; (b) physical isolation from others; and (c) social isolation from others. The damaging elements of solitary confinement are the deprivation of stimulus (sensory deprivation) and the absence of meaningful human contact.

[166] Much, but not all of the Plaintiffs’ allegations in the immediate case, focus on the Defendants’ use of solitary confinement at The Penetanguishene Psychiatric Hospital. Thus, the Plaintiffs submit that the proposed class action arises from the most egregious violations of human rights in Ontario’s history. The Plaintiffs submit that the conditions of isolation and seclusion, as practiced at The Hospital amount to culpable solitary confinement and are harsher than the conditions of administrative segregation, which was found to be unconstitutional at federal penitentiaries and at provincial jails and prisons.

[167] The Plaintiffs allude to administrative segregation, which was found to be a systemic institutional abuse. The Plaintiffs allude to other class actions against the federal government and provincial governments about their unconstitutional operation of jails, prisons, and penitentiaries including correctional facilities for the detainment of prisoners suffering from serious mental illness.

[168] In the immediate case, however, there is no basis in fact that the Defendants ever systemically used seclusion as equivalent to solitary confinement or administrative segregation. Further, in the immediate case, there is no basis in fact that the Defendants systemically used seclusion to punish patients.

[169] To be clear, in the immediate case, there is some basis in fact that some putative Class Members experienced prolonged seclusion that may have constituted culpable solitary confinement. And on an individual basis, in the immediate case, there may have been negligence, fiduciary breaches, and Charter violations, but the seclusion was not systemic solitary confinement in the sense it was found to exist in the administrative segregation class actions and the seclusion and restrain in the immediate case were not administrative segregation.

[170] For example, it may be the case that Mr. Alexander, whose circumstances are described below, has individual causes of action with respect to his various periods of seclusion. However, it cannot be generalized that his seclusion is some basis in fact for a systemic breach. As noted above, a decision to restrain a patient or to continue seclusion is based on a myriad of idiosyncratic factors and not on some uniform practice.

[171] For the purposes of the Certification Motion, I do not doubt the correctness of Mr. Sapers’ opinion evidence that solitary confinement is a set of conditions that can exist in correctional facilities and at forensic psychiatric hospitals. I do not doubt his opinion evidence that those set of conditions are not exclusive to prisons and penitentiaries and could and may have existed and may continue to exist at The Penetanguishene Psychiatric Hospital.

[172] I agree with Mr. Saper that just denying that there is solitary confinement does not make the denial true. I agree with Mr. Sapers that the real question is whether the programs and practices involve the elements of solitary confinement.

[173] Accepting Mr. Sapers’ and the Plaintiffs’ other experts’ evidence on the possibility of seclusion amounting to solitary confinement, in the immediate case, there is no basis in fact for finding that the programs and practices at The Penetanguishene Psychiatric Hospital systemically amounted to solitary confinement, although there is some basis in fact for concluding that culpable solitary confinement occurred on an individual basis at The Penetanguishene Psychiatric Hospital.

[174] All of the experts agreed that a determination of whether restraint was warranted and whether, if warranted, the restraint exceeded the least restraint principle required a patient-by-patient analysis. The analysis involved the clinical judgment of several staff members considering idiosyncratic and multifaceted factors including the patient’s diagnosis, his mental health history, his response to treatment; his response to restraint, his response to medication, his capacity to consent to treatment; the exercise of his capacity to consent to treatment, and behaviour of the patient and whether it presented a prospect of serious bodily harm to the patient or to another person.

[175] At the Penetanguishene Psychiatric Hospital for long-term seclusions, after the most responsible psychiatrist assessed the need for seclusion, an in-person assessment was carried out after 24 hours of seclusion. A second review is done after 72 hours, a third after seven days, a fourth at 28 days, and subsequent assessments at intervals of 28 days.

[176] At the Penetanguishene Psychiatric Hospital during most of the day, patients in seclusion are checked every 15 minutes by a member of staff. Every 24 hours a psychiatrist evaluates whether the seclusion order should be renewed based on a review of all seclusion documentation, including mental status assessments, and his or her own assessment. The 24-hour assessment to determine if there is need for a continued seclusion order is usually done by a different psychiatrist.

[177] Throughout the seclusion, the involuntary forensic patient continued to interact with his responsible physician, with other physicians reviewing the seclusion, with nurses, with behavioural support workers with staff, and depending on the particulars of the seclusion with other patients. Treatment for mental illness and treatment programs for mental illness continue during seclusion.

[178] There may be failures in adhering to the protocols and all the safeguards designed to minimize the use of seclusion and to foster opportunities for sensory stimulation and human interaction, but the failures would be individual failures not systemic ones.

[179] It may be, as Ruben Stolove’s litigation guardians submitted, that Ruben did not have meaningful human contact, but apart from the subjectivity of that submission and the possibility of it being rebutted by objective evidence, Mr. Stolove’s experience was unique to him, and his experience cannot be extrapolated to the experience of other patients.

[180] During the class period, the various psychiatric treatment programs at The Penetanguishene Psychiatric Hospital do not have an appearance of commonality, unlike for example the situation at the Oak Ridge Division of the Penetanguishene Psychiatric Hospital described in Barker v. Barker.[^33] At the Oak Ridge Division of the Hospital, there were three main programs:

a. DDT (Defence Disruptive Therapy). Under the DDT, a patient was administered combinations of hallucinogenic, delirium producing, psychosis producing, or mind-altering drugs including combinations of: alcohol, dexamyl-tofranil, Dexedrine, dextroamphetamine, imipramine, LSD-25, largactil, methedrine, nozinan, ritalin, scopolamine, and sodium amytal. The idea behind this program was that drugs would disrupt the defence mechanisms of the criminally insane so that they confront their illnesses and the underlying personality disorders. The drugs were used to remove the unconscious psychological processes (defence mechanisms) that interfered with self-discovery.

b. MAPP (Motivation, Attitude, Participation Program). MAPP was a form of re-education that involved regimen, study, discipline, and punishment. 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 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.

c. the Capsule Program (Total Encounter Capsule Program). In the Capsule Program, the patient was placed in a specially constructed, soundproof, windowless, but continuously lighted room, eight feet by ten feet in size, furnished only with a soft rug over a foam floor. There were washing and toilet facilities, which consisted of an open toilet and wash basin, but no towels were provided. Beds were not provided, and the patients slept on the floor. A group of up to seven patients were confined in the room to remain for many days at a time. The patients were totally removed from contact with the outside world. They were stripped nude and often chained to one another. They were fed through liquid food dispensers – four straws through the wall – and received no solid foods. They were drugged with Dexamyl, Tofranil, LSD, and other hallucinogens. They were intentionally deprived of sleep.

[181] There was nothing remotely like the DDT, MAPP, or the Capsule in the immediate case.

[182] From the evidence for the Certification Motion there is some basis in fact for concluding that there is a high usage of restraint and seclusion at The Penetanguishene Psychiatric Hospital but given that The Hospital was the maximum security psychiatric hospital of last resort for very seriously mentally-ill patients some of whom had committed horrible acts of violence and some of whom had threatened horrible acts of violence, the high incidence of restraint and seclusion is not some basis in fact that there was a systemic overuse of restraint and seclusion.

[183] On an individual case-by-case basis, the use of restraint and seclusion may have been culpable, but that culpability would have to be proven on an individual basis. For example, the Plaintiffs allege that there was a systemic failure to adhere to the minimal restraint principle. There is some basis in fact to think that there were idiosyncratic failures of the minimal restraint principle, but there is no basis in fact to establish a systemic failure.

[184] Ms. Butterworth, who was in a position to witness what was happening at The Penetanguishene Psychiatric Hospital, was relied on by the Plaintiffs as establishing that there was a systemic breach and breakdown of the minimal restraint principle at The Hospital. For present purposes, I have ignored those arguments to discredit Ms. Butterworth’s character and her evidence, but she is not qualified to opine about a systemic failure of a psychiatric treatment program, and her objective evidence much like the evidence of the other witnesses for the Plaintiffs demonstrates that on a case-by-case basis there may have been unlawful restraint and seclusion at The Penetanguishene Psychiatric Hospital, but this evidence does not establish a systemic breach.

[185] Dr. Bradford opined that during his tenure at The Penetanguishene Psychiatric Hospital that policies and procedures were routinely violated or used to justify the prolonged confinement of patients in horrific conditions. His opinion evidence was countered and contradicted by other expert and non-expert witnesses, but Dr. Bradford’s evidence and similar evidence is not some basis in fact for a systemic failure. The horrific conditions of which Dr. Bradford speaks were individually horrific conditions.

[186] That the policies and procedures of The Penetanguishene Psychiatric Hospital may have been used in some cases to justify prolonged confinement begs the question of whether the policies and procedures were culpably used, which is a case-by-case question. In the absence of a uniform set of circumstances, there is a high risk in the immediate case of the “fallacy of the hasty generalization.” The fallacy is generalizing from particular instances that are irrelevant, unrepresentative, or insufficient to justify the conclusion. It is jumping to a conclusion from an unrepresentative sample. There may have been more than one rotten apple in the basket of treatments at The Penetanguishene Psychiatric Hospital but not all the apples in the basket were rotten.

[187] Dr. Bradford was successful in reducing the use of seclusion on his ward from 70% to 15%, but that raw statistic, while it is a credit to Dr. Bradford, is not necessarily a discredit to The Penetanguishene Psychiatric Hospital without analyzing each and every of the cases in which seclusion was employed given that psychiatric seclusion as opposed to the type of seclusion akin to administrative segregation is used at psychiatric hospitals and was used by Dr. Bradford at The Penetanguishene Psychiatric Hospital for at least 15% of the cases and it was not used at all for 30% of the cases. In the immediate case, based on Dr. Bradford’s statistics on his ward 45% of the patients would have no cause for complaint and 55% may have been unnecessarily subjected to seclusion in which case The Hospital may have breached the minimal restraint principle. However, these statistics proves nothing about systemic success or systemic failure and just that the use of statistics is notorious for statistical fallacies and hasty generalizations.

[188] All of the patients at The Penetanguishene Psychiatric Hospital apart from those suffering the brutality of the Oak Ridge Division had treatment plans or programs, but not all patients were restrained or secluded and not all patients experienced solitary confinement or culpable seclusion that might have violated the minimal restraint principle.

[189] In the immediate case, during argument, the Plaintiffs acknowledged that the seclusion and restraint policies were excellent on paper. The culpable failures, if any, in those excellent on paper policies are at the individual level of implementation of those policies.

[190] The Plaintiffs submit that the Defendants are attributing what occurred at The Penetanguishene Psychiatric Hospital to isolated incidents when the use of seclusion and restraint at The Hospital actually was systemic and not isolated or random.

[191] However, I do not regard the Defendants’ submission to attribute what occurred at The Hospital to isolated aberrations. The thrust of the Defendants’ submission is that restraint and seclusion will occur at psychiatric hospitals and in the immediate case, be they alleged incidents of culpable seclusion a few isolated events or be they hundreds of events, they were not patterned events of systemic culpability.

[192] Seclusion and the restraint of a patient at a hospital be it a general hospital or a psychiatric hospital is not per se illegal or unconstitutional or contrary to common law or statute. As noted above, the Mental Health Act does not affect the common law duty of a caregiver to restrain or confine a person when immediate action is necessary to prevent serious bodily harm to the person or to others. It is not without significance that the common law and the statute imposes a duty as opposed to a common law right to restrain. Restraining and secluding a patient is lawful and not per se unlawful. There is an associated duty to keep the hospital safe from harm that might be caused by a dangerously out-of-control patient.

[193] In contrast to what may occur at a psychiatric hospital, at a penitentiary there is no common law duty to place prisoners or patients into solitary confinement or into administrative segregation. Unlike the situation in penitentiaries in which a prisoner placed in administrative segregation, is placed colloquially speaking “in the hole” of a small sized cell in a manner that offends the United Nations’ standard for what is a human rights’ violation, the patients at The Penetanguishene Psychiatric Hospital may be secluded in (a) his regular room; (b) a step-down room, or (c) a seclusion room.

[194] Unlike the regime for the manner and conditions of administrative segregation, which is more or less standardized at correctional facilities, the same cannot be said to be true with respect to seclusion at psychiatric hospitals or at hospitals generally when a patient poses a risk of harm to himself or herself or to others.

[195] The renowned scholar on solitary confinement, Dr. Grassian, who was the Plaintiffs’ expert witness, distinguished between medical seclusion, as that term is commonly understood, which he condoned and the experiences at The Penetanguishene Psychiatric Hospital of Messrs. Ducharme and Jenner, whom he interviewed, which experiences he characterized as solitary confinement akin to what takes place in a penitentiary.

[196] Dr. Chaimowitz, the Defendants’ expert, agreed that the use of seclusion in the hospital setting is distinct from the use of solitary confinement in the prison setting. In a hospital situation, seclusion is used for different purposes, occurs under different circumstances and occurs in different situations than solitary confinement in the prison setting. Dr. Chaimowitz testified that seclusion in Ontario psychiatric hospitals is associated with active treatment of the patient.

[197] Dr. Bradford acknowledged that he has advocated for the continued use of seclusion and that he utilized seclusion during his tenure at The Penetanguishene Psychiatric Hospital. Mr. Smith acknowledged that the literature recognizes that there may even be beneficial effects to the use of seclusion and restraint in treating adults with psychiatric conditions. Dr. Grassian acknowledged that a patient having the ability to gain some space in a psychiatric unit is important. Dr. Grassian said that seclusion has some beneficial effects as it provides patients who need space away from social interaction in a psychiatric unit with the ability to get away for some period of time.

[198] Dr. Grassian’s opinion was corroborated by Dr. Brink; however, it remains to be proven beyond some basis in fact that Messrs. Ducharme and Jenner did experience solitary confinement of the type experienced in a penitentiary and whether that solitary confinement was culpable.

[199] The point to emphasize is that there is some basis in fact evidence that other putative Class Members just experienced medical seclusion, which Dr. Grassian or any of the experts called by the opposing litigants did not suggest should be abandoned from the therapeutic medicine bag of a psychiatric hospital.

[200] Seclusion in psychiatric facilities, including Ontario’s psychiatric hospitals, is associated with active treatment of the psychiatric condition of the patient and there is a comprehensive psychiatric team available for the express purpose of providing treatment to the patient. There is no therapeutic purpose in administrative segregation at a correctional facility, and the scientific evidence is that administrative segregation is psychologically harmful and not curing. In seclusion at a psychiatric hospital, there is active treatment, supervision by attending physicians, and independent and external oversight, and the scientific community is divided as to whether there might be some therapeutic value in the minimal resort to restraint to prevent serious bodily harm to the person or to others. Loneliness is undoubtedly a devasting human emotion, but meditation, reflection, voluntariness (which is not possible in a correctional facility) and an absence of stimuli and some time to be alone cannot be ruled out as having therapeutic value.

[201] When the time in seclusion becomes harmful to patients would depend on the patient and the nature of his illness. Dr. Smith, another of the Plaintiffs’ expert witnesses acknowledged that a research study, on which he relied, had found that there were beneficial effects of psychiatric seclusion and restraint to patients.

[202] Dr. Gojer, another of the Plaintiffs’ expert witnesses testified that some patients require seclusion, which is a case-by-case clinical decision. Dr. Gojer acknowledged that his hospital, the Royal Ottawa Hospital, is building seclusion rooms.

[203] Mr. Sapers, who is a Member of the Board of Trustees of CAMH, a leading if not the preeminent Ontario psychiatric hospital, acknowledged that CAMH uses restraint and seclusion for its patients.

[204] The Penetanguishene Psychiatric Hospital’s use of seclusion and restraint is similar to the use made at other Ontario psychiatric hospitals and other psychiatric facilities around the world. Psychiatric hospitals around the world use restraint and seclusion to manage behaviours that pose risks to the patient or to others and as means to de-escalate a behavioural control emergency involving a violent or aggressive patient.

[205] There was nothing experimental in the treatments of the wards of The Penetanguishene Psychiatric Hospital that are the subject of this proposed class action. And there was nothing remotely like the Nazi-like experimentation that went on at the Oak Ridge Division as described in Barker v. Barker.

[206] The immediate case and the class actions about administrative segregation are not about short term placements and it is obvious that the duration of a long-term seclusion or of a long-term placement into administrative segregation is long-term. However, it is the level of human interaction, the deprivation of which is the damaging part of any kind of isolation is very different for long-term seclusion than for administrative segregation. While the human interaction be it for supervision, for monitoring, for evaluation, for treatment, for feeding, or just for communication varies patient by patient, the amount of human contact and the variety of it is much different from solitary confinement and administrative segregation.

[207] The Plaintiffs compare the commonality of the patients’ experiences at The Penetanguishene Psychiatric Hospital at bar to the core experiences of the penitentiary inmates in the administrative segregation cases where the federal government was found liable for systemically breaching the Charter by placing inmates in conditions of solitary confinement for periods of fifteen or more days or of placing inmates with defined serious mental health issues in administrative segregation for any period of time.

[208] The comparison, however, is not apt, as can be demonstrated by completing the comparison. A proper comparison must not only compare the experiences of the patients to the experiences of the prisoners, but it should also compare the institutions, which are a maximum security penitentiary and The Penetanguishene Psychiatric Hospital, a maximum security psychiatric hospital. When the complete comparison is made, what is revealed is that:

a. the administrative segregation in a penitentiary is for security and safety purposes, but is not therapeutic, while the seclusion in a psychiatric hospital is for security and safety purposes but may have some therapeutic benefits;

b. the policies about administrative segregation were bad and uniformly breached in federal penitentiaries while the policies about restraint and seclusion at The Hospital were good, but breached in individual cases;

c. the physical conditions of an administrative segregation cell were uniform in the penitentiary, while the physical conditions of seclusion were not uniform at the Hospital where there were three different types of rooms where a patient would be secluded, including his own normal room; and

d. the sensory deprivation and the absence of meaningful human interaction during a prisoner’s placement in administrative segregation was uniform in the penitentiary, while the sensory deprivation and absence of meaningful human interaction during a patient’s seclusion at The Hospital, if any, were not uniform.

[209] From the evidence for the Certification Motion, particularly the evidence of Dr. Bradford and Ms. Butterworth, Plaintiffs’ witnesses that actually worked at The Hospital, there is more than some basis in fact for many prima facie cases of negligence, breach of fiduciary duty, or breaches of the Charter at the The Penetanguishene Psychiatric Hospital but many prima facie cases do not without more establish a systemic failure. As the evidence of Messrs. Alexander, Benjamin, DeJong, Ducharme, Jenner, and Stolove, to which I next turn, reveals, there is some basis in fact that individual cases of culpable seclusion occurred at The Penetanguishene Psychiatric Hospital but there is no basis in fact for systemic culpability.

J. Michael Burton Alexander

[210] Mr. Alexander (b. 1981) suffers from Schizoaffective Disorder, Antisocial Personality Disorder, and Polysubstance Abuse. His symptoms include exhibiting threatening and aggressive antisocial behaviour.

[211] Since his teenage years, Mr. Alexander has been a patient at various psychiatric facilities for drug and mental health related services.

[212] In 2019, Mr. Alexander entered a bank and threatened to cut off an employee’s head. He was charged with uttering threats to cause death.

[213] In 2019, he was charged with robbery for a purse snatching. He was arrested for these offences and detained at Toronto South Detention Centre. He was found NCR (not criminally responsibility by virtue of mental disorder), and he was admitted to The Penetanguishene Psychiatric Hospital on January 23, 2020. He was treated pursuant to the Forensic Assessment, Beckwith, and Beausoleil programs.

[214] While at The Hospital, Mr. Alexander has self-harmed, damaged property, disturbed other patients, and assaulted staff. He has thrown urine and smeared feces over himself and throughout his room. One example is set out in the following note in his medical records:

While taking Mr. Alexander's co [patient] (neighbour in seclusion suite) out for seclusion relief, Mr. Alexander began calling staff "whores and bitches" and stated he was going to defecate and urinate through the seclusion door. Mr. Alexander continued, following through with this statement. Mr. Alexander put his buttocks up to the crack of the seclusion door and began defecating through the door, whilst stating "There's a bit of Michael Alexander for ya". Staff finished applying restraints for co pt and left the seclusion area at this time. As witnessed by cleaning staff, Mr. Alexander then began "flicking" his feces further out the door […]

[215] At The Hospital, Mr. Alexander has had numerous placements in seclusion, including a period from January 23, 2020 to June 14, 2020, during which his evidence was that he only had six hours of seclusion relief while wearing a four-point restraint. He deposed that seclusion at The Hospital was like the solitary confinement he experienced at Toronto South Detention Centre.

[216] The Plaintiffs submit that Mr. Alexander has been kept in seclusion despite displaying no risk of immediate bodily harm. For instance, during a one-month seclusion in March-April 2019, he was assessed as not having thoughts of hurting others and no suicidal ideation, but nonetheless his seclusion continued.

[217] At an Ontario Review Board (“ORB”) Restriction of Liberty (ROL) hearing, Mr. Alexander acknowledged that there was at least one occasion where he asked to be placed in seclusion. The Board determined that his seclusion was necessary and appropriate.

[218] The ORB has reviewed Mr. Alexander’s seclusion on three occasions, and the Board determined that the decision to seclude him was the least onerous and restrictive decision that could be made for Mr. Alexander.

K. Coleby Benjamin and Kelly Draper

[219] Ms. Draper is an Administrative Assistant with the Ministry of Children, Community and Social Services. She is a proposed Representative Plaintiff for the family members class. She is the mother of Coleby Benjamin (b. 1994).

[220] Mr. Benjamin has a Congenital Neurological Abnormality (Cortical Dysplasia), Epilepsy, and a Developmental Disability. He has been diagnosed with an intellectual disability, mild to moderate range, secondary to congenital neurological abnormality. He has extremely limited intellectual and communicative capacity. He is illiterate. He is unable to care for himself. He does not have the capacity to consent to treatment. Ms. Draper is his substitute decision maker.

[221] In 2014, while a patient at another hospital, Mr. Benjamin spat at, bit, punched, kicked, and uttered threats at hospital staff, he punched his roommate, and he threatened, bit, and assaulted a police officer. He was charged with four counts of assault, one count of uttering threat, one count of assaulting a police officer; and two counts of failure to comply with recognizance.

[222] In 2015, Mr. Benjamin was found unfit to stand trial and remanded to The Penetanguishene Psychiatric Hospital. While at The Hospital, Mr. Benjamin was treated pursuant to the Forensic Assessment Program and then the Awenda Program.

[223] Mr. Benjamin was detained at The Hospital from January 19, 2015 to February 7, 2018. At The Hospital, his behaviour was violent and unpredictable. He damaged property. He bit, spat, kicked, punched, headbutted, and threw liquid and objects at staff and at other patients. He threatened patients and staff with violence and death. He frequently punched walls and windows and tried to destroy other people’s property.

[224] Mr. Benjamin was placed in seclusion for periods of time, some periods exceeding 60 consecutive days, including a period of 150 consecutive days. There were 86 consecutive days in seclusion from August 7, 2017 to November 1, 2017. He was required to wear full (four-point) mechanical restraints when permitted time out from seclusion.

[225] In 2018, Mr. Benjamin was found fit to stand trial and he was discharged from the Penetanguishene Psychiatric Hospital.

L. Richard DeJong (Class Member)

[226] Mr. DeJong (b. 1973) was physically and sexually abused as a child. He was placed in special education courses and did not graduate from high school. He suffers from obsessive compulsive traits, antisocial personality disorder, and moderate alcohol use disorder (in remission in a controlled environment) and treatment refractory schizophrenia. His symptoms include agitation, sexual preoccupation, and aggression. He is paranoid and when delusional he can behave violently.

[227] Beginning in 2002, Mr. DeJong was intermittently detained at several psychiatric facilities. He has been found incapable of consenting to treatment. In 2002, he was charged for stealing a vehicle. In 2002, he was charged with attempted escape from a courthouse. While at the Whitby Jail and Millbrook Correctional Facility, he attacked and injured a guard with a food tray and then punched and kicked the guard. He was placed in administrative segregation.

[228] In 2002, Mr. DeJong was admitted to The Penetanguishene Psychiatric Hospital for an assessment. He was found NCR of his various criminal charges and transferred to a different psychiatric facility, where he eloped (escaped), was returned, and transferred back to The Hospital.

[229] In 2020, he was readmitted to The Hospital, where he has remained a patient being treated in the Forensic Assessment, Beckwith and Beausoleil programs.

[230] While at The Hospital, Mr. DeJong threw hot coffee at a staff member. He engages in maladaptive and sexually inappropriate behaviour, using vulgar and racist language in interactions with staff. He refuses to take his medications, and he has assaulted staff members attempting to administer medications. In one instance, at dinner Mr. DeJong punched a staff member in the face and struck the staff member with a meal tray, which Mr. DeJong said was payback for being called a sexual predator. While in seclusion, Mr. DeJong said: “this isn’t over, when I get out I’m gonna finish this.”

[231] The Ontario Review Board has upheld the decisions placing Mr. DeJong in seclusion. The Board concluded that the seclusion orders were necessary and appropriate to protect the safety of patients and staff at The Hospital.

[232] Mr. DeJong has challenged the finding of incapacity to consent to treatment on numerous occasions, but the incapacity decisions have been upheld by the Capacity and Consent Board.

[233] Mr. DeJong has been placed in seclusion numerous times including a period in excess of 60 days. Mr. DeJong likens his experiences in seclusion at The Hospital to administrative segregation at the Whitby Jail and Millbrook Correctional Facility.

M. Christopher Ducharme

[234] Mr. Ducharme (b. 1992) suffers from Unspecified Schizophrenia Spectrum and Other Psychotic Disorder and Cannabis Use Disorder (in remission). He is extremely intelligent and manipulative. He is extremely dangerous. His psychosis leads him to exhibit extremely paranoid, threatening, and aggressive behaviour.

[235] In 2014, Mr. Ducharme stole a knife from a restaurant and commandeered a taxi holding the knife at the driver’s throat. The car crashed, and Mr. Ducharme was charged for various offences, but was found NCR. He was admitted to various psychiatric facilities in Québec. He “eloped” (escaped) to Ontario. In Ontario, he was admitted to CAMH on five occasions with one elopement.

[236] In 2016, Mr. Ducharme was returned to the Québec institution, where he eloped and then returned. At the Québec facility, he used a shiv to take a staff member hostage. He was arrested, charged, and transferred to a maximum security facility. He was found NCR.

[237] In 2018, he was transferred to Ontario and admitted to Ontario Shores for Mental Health Sciences. He eloped. He was arrested for robbery. While in Old City Hall courthouse he attempted to escape and assaulted two police officers. He was charged. He was re-admitted to Ontario Shores for Mental Health Sciences, where he attempted to elope by taking a recreational therapist hostage with a shiv. He was charged with Possession of Weapon for Dangerous Purpose and Assault with a Weapon and Forcible Confinement. He was found NCR for his charges.

[238] At the request of Ontario Shores Mental Health Sciences, whose doctors concluded that they could not manage the risk of more violence from Mr. Ducharme, he was transferred and admitted to The Penetanguishene Psychiatric Hospital in October 2018 for a psychiatric assessment and then from December 2018 to date, he has been at The Hospital.

[239] At The Penetanguishene Psychiatric Hospital, Mr. Ducharme has made several meticulously planned and successful elopements and several meticulously planned but unsuccessful attempts at escape.

[240] At The Hospital, Mr. Ducharme does not consent to medication. He disagrees with his diagnosis and insists that medication is making him worse and more likely to hurt others. There have been extended periods when he has been unmedicated. While unmedicated, his condition deteriorates, and his paranoia and aggressive ideation increases. Since admission, his capacity to consent to treatment has been contentious, and both he and his substitute decision maker, his mother, have refused medication.

[241] Mr. Ducharme has been found incapable to consent to treatment, a finding that has been upheld by the Capacity and Consent Board, in a decision affirmed by the Superior Court.

[242] Dr. Hudson brought successful proceedings to have Mr. Ducharme’s substitute decision maker consent and when this was refused, she was replaced by the Office of the Public Guardian and Trustee and consent for treatment was provided.

[243] On September 2, 2022, Mr. Ducharme was started on antipsychotic medication. Dr. Hudson made another finding of incapacity, which was appealed by Mr. Ducharme. On October 12, 2022, the CCB upheld Dr. Hudson’s finding. Mr. Ducharme appealed this decision but subsequently abandoned this effort. He is currently receiving treatment with the consent of the Public Guardian and Trustee.

[244] While at The Hospital, Mr. Ducharme has had numerous placements in seclusion, including periods of 65 consecutive days without seclusion relief, 162 consecutive days, and 317 consecutive days. For seclusion relief, he is required to wear full (four-point) mechanical restraints. The Ontario Review Board had held that it is reasonable for the treatment team who believe he will carry out his threats and that it is reasonable to take steps to protect the security of staff and other patients.

[245] Mr. Ducharme believes that seclusion at The Penetanguishene Psychiatric Hospital is worse than the administrative segregation that he experienced at the Toronto South Detention Centre.

N. Barron Jenner

[246] When a teenager, Mr. Jenner (b. 1985) was diagnosed with Obsessive Compulsive Disorder (“OCD”). He was subsequently diagnosed with Schizophrenia and Personality Disorder. When his condition deteriorates, he becomes agitated, threatening, and violent.

[247] In 2004, Mr. Jenner was charged with mischief-related offences after an incident where he interfered with the operations of a restaurant. He was found NCR in 2004. He was admitted and detained at Southwest Centre for Forensic Mental Health Care, where he spent a great deal of time in seclusion because of violence and threats of violence. In 2016, the Ontario Review Board ordered that he be transferred to The Penetanguishene Psychiatric Hospital, where he has remained as an involuntary patient receiving treatment under the Awenda and Beckwith Programs.

[248] When medicated, Mr. Jenner’s behaviour improves markedly, but he prefers to be unmedicated, and he has a long history of declining medication when he is capable of consenting to treatment. When he has been found to be incapable of providing consent, he has filed appeals to the Capacity and Consent Board, being successful on two appeals and unsuccessful on two other appeals.

[249] Recently, in March 2024, on an appeal to the Superior Court, the court upheld a finding of incapacity. When incapable, his mother is his substitute decision maker.

[250] There have been multiple occasions where Mr. Jenner has manifested aggressive and profane conduct to male and female staff members. There have been multiple occasions where he has attempted to strike others and has been physically restrained. In anger at the restraint, he has threated to kill staff. An example incident note is set out below:

[…] Mr. Jenner again turned towards staff and "Fuck off, Haley stupid cunt". For a third time health teaching was stressed to Mr. Jenner that he does not talk to female staff this way. At this time, Mr. Jenner stood up in his chair aggressively and turned towards male staff and attempted to charge at staff at which time staff provided hands on technique. Staff performed a hands on restraint with Mr. Jenner as he attempted to strike out. At this time, code white was called, and Mr. Jenner was restrained safely. CPI technique was performed, and Mr. Jenner was guided to the wall with safe CPI technique. At this time, Mr. Jenner placed a foot against the wall and attempted to kick his body back into staff. While staff were restraining Mr. Jenner he began threatening to kill male staff, by shouting out "I am going to kill you, I am going to cut your fucking head off, your whole family is dead". Forcefully resisting staff restraint at times while trying to kick out his legs while lying on the floor. Verbal de-escalation was provided with no avail.”

[251] Mr. Jenner has been placed in seclusion on multiple occasions some exceeding 100 consecutive days. Currently, he has been in seclusion for 715 consecutive days. Mr. Jenner is often restrained to a wheelchair, in four-point mechanical restraints, and forced to wear a face mask when he exits seclusion.

O. Ruben Stolove, Linda Hindrea, and Micha Stolove

[252] Linda Hindrea is Ruben Stolove’s elderly grandmother. Micha Stolove is his father. They are his co-litigation guardians.

[253] Mr. Stolove (b. 1995) was diagnosed with ADHD as a child. He was subsequently diagnosed with schizophrenia as a teenager and has experienced bouts of paranoia, auditory hallucinations, and other delusions. When untreated, he is dangerous with a high risk of harming others.

[254] In September 2015, during an acute schizophrenic episode, Mr. Stolove randomly assaulted a woman in Toronto. He was arrested for assault and transferred to CAMH for assessment and treatment. At CAMH, he sexually harassed and attacked patients. He was placed in seclusion. In December 2015, he was found NCR and at CAMH’s request he was remanded to The Penetanguishene Psychiatric Hospital.

[255] At The Hospital following incidents of violence or threatened violence, he has been placed in seclusion on numerous occasions for periods up to 40 consecutive days.

[256] Mr. Stolove is currently on the Beausoleil Program and was previously in the Forensic Assessment and Beckwith programs.

[257] Other than a three-month period in 2016, Mr. Stolove has been capable of consenting to treatment and has made his own decisions regarding treatment. Medication ameliorates Mr. Stolove’s symptoms of illness and substantially decreases his violent tendencies.

[258] In November 2020, Mr. Stolove agreed to begin a new treatment regime and subsequently the Ontario Review Board ordered that Mr. Stolove be transferred to CAMH.

P. Certification General Principles

[259] 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.

[260] 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.[^34]

[261] 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.[^35] That said, in Pro-Sys Consultants Ltd v. Microsoft Corp.,[^36] 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”.

[262] 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.[^37] 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.[^38] 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.[^39]

[263] In particular, there must be a basis in the evidence to establish the existence of common issues.[^40] 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.[^41]

[264] 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.[^42]

[265] 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.[^43]

Q. Cause of Action Criterion

1. General Principles

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

[267] The “plain and obvious” test for Hunt v. Carey Canada,[^44] is used to determine whether a proposed class proceeding discloses a cause of action for the purposes of s. 5(1)(a) of the Class Proceedings Act, 1992.[^45] 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.[^46]

[268] In R. v. Imperial Tobacco Canada Ltd.,[^47] 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.

[269] In Atlantic Lottery Corp. Inc. v. Babstock,[^48] 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.[^49]

[270] 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.[^50]

[271] 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.[^51]

[272] 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,[^52] and the court’s power to strike a claim is exercised only in the clearest cases.[^53] The law must be allowed to evolve, and the novelty of a claim will not militate against a plaintiff.[^54] 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.[^55] In the Ontario Court of Appeal’s decision in Darmar Farms Inc. v. Syngenta Canada Inc.,[^56] 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 Causes of Action against Waypoint

[273] On the Certification Motion, Waypoint concedes that the cause of action criterion is satisfied against it for: (a) negligence; and (b) breach of the Charter. And, Waypoint admits that it is vicariously liable for any acts or omissions of Ms. Lambie, Mr. Desroches, and Ms. Adams.

[274] Waypoint, however, disputes that there is a viable cause of action for breach of fiduciary duty. In this regard, Waypoint: (a) relies on the Divisional Court’s and the Court of Appeal’s decision in Ontario v. Phaneuf,[^57] and (b) distinguishes the immediate case from Barker v. Barker,[^58] already mentioned above, where the Court of Appeal upheld Justice Morgan’s decision that Ontario, then the operator of the Oak Ridge Division of The Penetanguishene Psychiatric Hospital had breached its fiduciary duties to its patients.

[275] Waypoint submits that the Barker decision is distinguishable because unlike what occurred in that case in the utilization of experimental psychiatric treatments, in the immediate case there is express legislative authority for the use of seclusion and restraint.

[276] Waypoint may be correct that the immediate case is distinguishable from Barker v. Barker. However, that misses the point that the cause of action criterion is satisfied if it is not plain and obvious that the plaintiffs have not pleaded a viable cause of action. In the immediate case, the Plaintiffs have pleaded a viable claim for breach of fiduciary duty. This breach of fiduciary duty may fail but it is not doomed to fail.

[277] Further, and this is the flip side of the plain and obvious coin of the cause of action criterion, Waypoint may be wrong in their categorical assertion that a public hospital does not have a fiduciary duty to its patients when the public hospital is a designate of a provincial government.

[278] As for Phaneuf v. Ontario, it is not plain and obvious that the case applies to the circumstances of the immediate case. The Phaneuf case concerned an alleged fiduciary duty by the Crown to carrying out court orders pursuant to the Criminal Code, and specifically, orders about the detention and transfer of detained individuals to hospitals. In that case, Ontario had no obligation to provide “observation, care, and treatment” to individuals in its custody awaiting an available bed. In the immediate case, it is not plain and obvious that in circumstances where there would appear to be a fiduciary relationship to the patients of the hospital and a duty to abide by the minimal restraint principle that there is no reasonable cause of action.

[279] Therefore, I am satisfied that the Plaintiffs satisfy the cause of action criterion for a breach of fiduciary duty against Waypoint.

3. The Causes of Action against Adams, Desroches and Lambie

[280] Ms. Lambie, Mr. Desroches, and Ms. Adams submit that there are no viable causes of action against them and that the cause of action criterion is not satisfied. I agree with their argument. This finding does not interfere with Waypoint’s concession that it would be vicariously liable for the misconduct of Ms. Lambie, Mr. Desroches, and Ms. Adams with respect their acts or omissions at The Penetanguishene Psychiatric Hospital.

[281] Ms. Lambie, Mr. Desroches, and Ms. Adams are directly sued for negligence and for breach of fiduciary duty entirely because of their role as members of the Senior Leadership Team at Waypoint. All of the allegations concern the inadvertent or advertent acts or omissions of these human actors with respect to the utilization of restraint and seclusion at The Penetanguishene Psychiatric Hospital.

[282] Waypoint is an incorporated entity, and the law is that absent allegations of fraud, deceit, dishonesty, or want of authority, officers and employees of companies are protected from personal liability, unless it can be shown that their actions are themselves tortious or exhibit a separate identity of interest from that of the corporation so as to make the act or conduct complained of their own.[^59] The actions of Ms. Lambie, Mr. Desroches, and Ms. Adams are not themselves tortious nor do they exhibit a separate identity of interest from that of Waypoint.

[283] The liability of a corporation is established by assessing the conduct of its senior management and/or employees, and if the actions of the corporation are found wanting the corporation will be held accountable, but personal liability will not flow through the corporation to those who caused it to act as it did.[^60] Officers, directors, senior management, and owners of incorporated entities should not be joined for tactical or leverage purposes in the litigation process.[^61]

[284] In the immediate case, a review of the Amended Statement of Claim does not reveal any allegations of material fact of conduct by Ms. Lambie, Mr. Desroches, or Ms. Adams separate from that of Waypoint or separate from the duty of care or fiduciary duties owed by Waypoint to the patients at The Penetanguishene Psychiatric Hospital.

[285] Notwithstanding the Plaintiffs’ submission that their allegations against the individual defendants go beyond actions carried out under a corporate name and concern personal duties and conduct, the duties and conduct of Ms. Lambie, Mr. Desroches, and Ms. Adams are the human agency of Waypoint and not personal conduct. Ms. Lambie, Mr. Desroches, and Ms. Adams have no relationship with the Plaintiffs other than as the human agency of Waypoint. It is plain and obvious that as pleaded or as capable of being pleaded, there is no viable cause of action for negligence against Ms. Lambie, Mr. Desroches, or Ms. Adams.

[286] Peculiarly and backwardly, the Plaintiffs plead that Ms. Lambie, Mr. Desroches, and Ms. Adams are vicariously liable for the conduct of Waypoint. Vicarious liability is a manifestation of a principle that an otherwise innocent entity should be liable in certain circumstances for the activities of its employees and agents. Ms. Lambie, Mr. Desroches, and Ms. Adams were employees not employers and cannot be vicariously liable for the misconduct of their employer.

[287] Ms. Lambie, Mr. Desroches, and Ms. Adams are also sued for breach of fiduciary duty, and for knowing assistance in breach of a fiduciary duty. These claims require intentional conduct on the part of the defendant, and there is nothing that the individual defendants did that is independent of their activities for Waypoint, and the knowing assistance cause of action requires more than a breach of a fiduciary duty, and there are no material facts pled that the individual Defendants were involved in fraudulent or dishonest behaviour, nor that they participated in or knew that Waypoint had breached its duty fraudulently and dishonestly.[^62] Thus, for the same reasons as the direct negligence claim is legally untenable, the breach of fiduciary duty claims are also untenable.

[288] Finally, I note that Ms. Lambie, Mr. Desroches, and Ms. Adams submit that insofar as their roles and activities at the Penetanguishene Psychiatric Hospital have been pleaded, those activities are immunized from suit pursuant to s. 13 of the Public Hospitals Act, which states:

Protection from liability

13. (1) No action or other proceeding for damages or otherwise shall be instituted against any member of a committee of the medical staff of a hospital or of a board or of the staff thereof for any act done in good faith in the execution or intended execution of any duty or authority under this Act or the regulations or for any alleged neglect or default in the execution in good faith of any such duty or authority.

Same

(2) No action or other proceeding for damages or otherwise shall be instituted against any witness in a proceeding or investigation before a committee of the medical staff of a hospital or a board or the Appeal Board for anything done or said in good faith in the course of a meeting, proceeding, investigation or other business of such committee or board.

[289] A s. 13 defence may be available to Ms. Lambie, Mr. Desroches, and Ms. Adams. However, in reaching the above decision that there is no viable action pleaded as against Ms. Lambie, Mr. Desroches, and Ms. Adams, I have not relied on this provision of the Public Hospitals Act because the cause of action criterion is about the adequacy of the plaintiffs’ pleading and the pleaded material facts include allegations of acts not done in good faith, which would negate the s. 13(1) defence.

[290] For present purposes, a s. 13 defence is superfluous, and I conclude that the Plaintiffs have no viable claims against the individual Defendants and the action should be dismissed as against them.

4. The Causes of Action against Ontario

[291] As noted above, beginning before 2000 and continuing until December 15, 2008, Ontario was the operator of The Penetanguishene Psychiatric Hospital. On December 15, 2008, The Hospital was divested to Waypoint. The Plaintiffs’ claims against Ontario, however, encompass the entire class period and do not differentiate between the pre and post-divestment periods.

[292] Ontario argues that there are no legally viable claims against Ontario for the entire class period based on an argument - with which I disagree - that the Plaintiffs are advancing a claim based on direct liability, which is legally impermissible, as opposed to a claim based on vicarious liability, which is a legally viable claim. As I shall explain below, the Plaintiffs’ claims against Ontario are not based on a direct liability for which Ontario has Crown immunity.

[293] The Plaintiffs also assert that Ontario is exposed to liability for the misdeeds at The Penetanguishene Psychiatric Hospital after the December 15, 2008 divestment. As I shall explain below, I agree with Ontario that it is not exposed to liability post the 2008 divestment of The Hospital.

[294] Ontario’s liability, if any, is for the class period between 2000 and December 15, 2008. As I shall explain below, for this period, the Plaintiffs satisfy the cause of action against Ontario for: (a) negligence; (b) breach of fiduciary duty; (c) breach of sections 7 and 9 of the Charter; and (d) vicarious liability.

(a) Ontario’s No Direct Claim Argument

[295] Ontario argues that all the Plaintiffs’ claims against Ontario are claims for Ontario’s direct liability and therefore all the claims should be dismissed. This is a very strained argument, and it is an inconsequential one.

[296] Ontario’s argument is an inconsequential argument because the Plaintiffs’ causes of action against Ontario are properly pleaded claims for government or public authority systemic negligence of which there have been a legion of precedent claims, many of them involving Ontario.[^63] The vociferous arguments on this Certification Motion demonstrate that Ontario understands that it is being sued for the systemic negligence of entities for which it is vicariously liable. Ontario is not unfamiliar with systemic negligence actions against it as a result of its vicarious liability for the actions of its servants and agents at schools, hospitals, long-term care facilities, sanitoriums, government housing, correctional facilities, etc.

[297] At its highest, Ontario’s argument is a submission that the Plaintiffs’ Statement of Claim wants for particulars or material facts to make out the various claims of government liability. However, in my opinion, the claims pleaded against Ontario are viable claims and the causes of action are adequately pleaded.

[298] Ontario is correct that the Crown Liability and Proceedings Act, 2019[^64] authorizes only certain tort claims against the Crown in vicarious liability and that the historic Crown immunity for direct torts remains extant.[^65] However, in the immediate case, Ontario’s tort liability, if any, is vicarious in nature and it is derivative of tortious conduct of an officer, employee or agent of Ontario when Ontario was the operator of The Penetanguishene Psychiatric Hospital.

[299] Ontario is incorrect that the Plaintiffs have only pleaded a claim of direct liability. In the Amended Statement of Claim, for the period before the divestiture of The Penetanguishene Psychiatric Hospital, the Plaintiffs identify individuals for whom Ontario is vicariously liable.

[300] Giving the Plaintiffs’ pleading the generous reading that it is entitled to on a motion to strike, it is clear that the Plaintiffs’ case in negligence is built upon these individuals and numerous others being the human agency manifestation of Ontario having a duty of care and having not met the standard of care with the consequence of causing harm to the patients at The Penetanguishene Psychiatric Hospital. It is not necessary in the Statement of Claim for the Plaintiffs to identify each and every staff member at The Hospital for whose misconduct Ontario would be vicariously liable.[^66]

[301] I conclude that the Plaintiffs satisfy the cause of action criterion for a systemic negligence cause of action against Ontario for the pre-divestment period.

(b) Causes of Action against Ontario for the Pre-divestment Period

[302] Although in its factum Ontario focuses on the post-divestment period, Ontario submits that it plain and obvious that Ontario does not owe a fiduciary duty to the plaintiffs for breach of fiduciary duty. Significantly, Ontario does not submit that the Plaintiffs have failed to properly plead a breach of fiduciary duty claim; rather, its argument is that the pleaded breach of fiduciary duty claim is doomed to fail and cannot be saved by any pleading amendment.

[303] Ontario’s argument is a merits argument outside of the ambit of the cause of action criterion of a Certification Motion. Based on the pleadings, it cannot be said that the Plaintiffs’ claim is doomed to fail. It should immediately be noted that Ontario cannot avoid its vicarious liability for any breaches of fiduciary duty by The Penetanguishene Psychiatric Hospital’s staff during the pre-divestment period.

[304] The Plaintiffs’ causes of action against Ontario are properly pleaded claims for breach of fiduciary duty of which there have been a legion of precedent claims, many of them involving Ontario. Typically, the systemic negligence claims, noted above, are coupled with a breach of fiduciary duty claim.

[305] I therefore conclude that the Plaintiffs satisfy the cause of action criterion for a breach of fiduciary duty as against Ontario for the pre-divestment period.

[306] The same line of argument applies with respect to the Plaintiffs’ claims for violations of the Charter for which once again there have been numerous cases against Ontario and other governments. It is Ontario’s exposure to the wrongdoings of its servants that exposes it to breach of the Charter. Apart from its failed no-direct liability argument, Ontario did not expressly dispute that it could be liable for the Charter breaches during the pre-divestment period when it was the operator of The Penetanguishene Psychiatric Hospital.

[307] I therefore conclude that The Plaintiffs satisfy the cause of action criterion as against Ontario: for the class period between 2000 and December 15, 2008 for: (a) negligence; (b) breach of sections 7 and 9 of the Charter; and (c) vicarious liability.

(c) The Breach of Fiduciary Duty Claim for the Post-divestment Period

[308] As noted above, without challenging the adequacy of the pleading, Ontario submits that it is plain and obvious that a breach of fiduciary duty claim against it is doomed to fail. As noted above, I disagree with this submission insofar as the pre-divestment period is concerned. I, however, agree that there is no breach of fiduciary duty claim for the post-divestment period.

[309] It is plain and obvious that with the intervention of a public hospital (Waypoint) to assume responsibility for the patients at The Hospital that Ontario’s fiduciary obligations, if any, ended. The Plaintiffs conceded this point in their factum.

(d) The Non-Delegable Claim against Ontario for the Post-divestment Period

[310] While the Plaintiffs conceded that there was no breach of fiduciary duty claim as against Ontario post-divestment, they persisted in the claim that Ontario was liable for the wrongdoings at The Penetanguishene Psychiatric Hospital post-divestment because Ontario allegedly had non-delegable responsibilities for what happened at The Hospital post-divestment.

[311] A claim of breach of a non-delegable duty is sometimes auxiliary or supplementary to a vicarious liability claim, but it is a different kind of vicarious liability. The nature of this so-called vicarious liability focuses on the wrong of assigning a responsibility that is non-delegable. The assignor becomes liable for the harm caused by the assignee, and this explains why the non-delegable claim resembles a vicarious liability claim.

[312] In the typical situation of an allegation of vicarious liability, a person can be vicariously liable without himself or herself personally being a tortious wrongdoer.[^67] In contrast, non-delegable duties are duties to ensure that care is taken.[^68] 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.[^69]

[313] In the immediate case, the Plaintiffs submit that for the period post-divestment of The Penetanguishene Psychiatric Hospital, Ontario has a non-delegable duty to the patients at the Penetanguishene Psychiatric Hospital who have been found not criminally responsible by reason of mental illness pursuant the Criminal Code. In other words, the Plaintiffs submit that Ontario’s duty to operate a forensic psychiatric hospital cannot be delegated to Waypoint and Ontario is vicariously liable for the misdeeds of Waypoint after it became the operator of The Hospital.

[314] I, however, agree with Ontario that in the circumstances of the immediate case, there is no non-delegable duty. And I agree that it is not appropriate to hold Ontario liable at common law for Waypoint’s alleged failures to take reasonable care and skill for the safety of the patients at The Penetanguishene Psychiatric Hospital post-divestment.

[315] The role of a province as set out in provisions of the Criminal Code is to designate hospitals as places for the custody, treatment and assessment of patients found not criminally responsible and as places for the observation, care and treatment of persons suffering from mental disorder. If these provisions of the Criminal Code impose any duty on the province, it is a duty to designate hospitals for these purposes. In this regard, in the immediate case, there is no dispute that Ontario has done what it was authorized and obliged to do.

[316] Once the hospital is designated, the provisions in the Criminal Code do not require Ontario to be the mental health care service provider and the provisions of the Criminal Code do not preclude Ontario from assigning the service provider responsibility to a psychiatric hospital operating under the Public Hospitals Act. Rather, the provisions permit Ontario to designate, which is to say to delegate that responsibility. In the immediate case, Ontario appointed itself as the service provider for the pre-divestment period and then designated Waypoint to be the service provider for the post-divestment period. There is nothing here that approaches a situation of non-delegable duties. It is plain and obvious that it is medical professionals employed or contracted with hospitals that provide the health care.

[317] The absence of language imposing a non-delegable duty on the province to provide observation, care and treatment to patients is fatal to the plaintiffs’ non-delegable duty argument.[^70] The Supreme Court of Canada has held that when a non-delegable duty is said to arise from a statute, there must be clear language in the statute imposing such a duty.[^71] In the immediate case, the statutory language authorized a designating power not a non-delegable duty.

[318] In the immediate case, no common law duty arises to ensure that care is taken by the designated hospital, whom, in any event, would have a duty of care imposed on it to lawfully and without negligence care for the patients.

[319] I disagree with the Plaintiffs’ argument that my certification motion decision in Banman v. Ontario[^72] is authority that Ontario owed a common law non-delegable duty to provide observation, care, and treatment to NCR patients at the St. Thomas Psychiatric Hospital. In that case, Ontario remained the operator of the hospital and it purported to assign therapeutic responsibilities to the NCR patients. In other words, the NCR patients were the delegates to provide psychiatric care for themselves. The case at bar is obviously not remotely similar.

[320] It is also plain and obvious that the claim for a breach of a non-delegable duty must fail insofar as it relates to a duty imposed by “the Constitution”. In this regard, the Plaintiffs’ argument based on sections 92(7) and 92(14) of the Constitution Act, 1867, is a non sequitur. These provisions of the Constitution allocate legislative authority between the federal government and the provinces. Sections 92(7) and 92(14) do not impose a duty to legislate. Rather, the Constitution Act empowers Ontario to make laws in relation to the establishment, maintenance, and management of hospitals and asylums and in relation to the administration of justice in Ontario. Ontario has done so and there has been no delegation of its legislative power.

[321] The Supreme Court of Canada rejected an argument similar to the Plaintiffs’ argument in Broome v. Prince Edward Island.[^73] In that case, the plaintiffs argued that Prince Edward Island owed a non-delegable duty of care to residents of a privately operated children’s home based on the province’s authority to legislate with respect to child protection. The Supreme Court stated at paragraph 62 of its judgment:

62 Legislative authority is of course not enough to impose vicarious liability. If it were, a province would be vicariously liable for every act committed in a field within its legislative authority. Such a proposition cannot withstand serious scrutiny.

[322] I therefore conclude that it is plain and obvious that the Plaintiffs do not satisfy the cause of action criterion for a claim of non-delegable duty as against Ontario for the post-divestment period.

(e) The Charter Claims Against Ontario for the Post-divestment Period

[323] Ontario disputes that there are viable Charter claims against it for the post-divestment period. I agree.

[324] I agree with Ontario’s argument that Ontario is not liable for any Charter breaches for the post-divestment period. Those breaches, if any, are Waypoint’s breaches. Claims for damages under s. 24(1) of the Charter are made directly against the government actor responsible for the breach.

[325] In CR v. Ontario,[^74] Ontario successfully moved to strike a claim on the basis that it was not responsible for alleged Charter breaches by Children’s Aid Societies or the Hospital for Sick Children arising from the use of unreliable hair follicle tests in legal proceedings. The Court stated that Children’s Aid Societies and the Hospital for Sick Children have independent legal identities and are responsible for their own Charter breaches. In Zaugg v. Ontario (Attorney General),[^75] the court struck a claim that Ontario was responsible for the actions of psychiatric facilities, physicians, and police officers acting under the Mental Health Act.

[326] It is plain and obvious that the Plaintiffs do not satisfy the cause of action criterion for a claim of Charter breaches against Ontario for the post-divestment period.

[327] It is plain and obvious that with the intervention of a public hospital, Waypoint, to assume responsibility for the patients at The Hospital that Ontario’s tort obligations ended. The Plaintiffs conceded this point with respect to fiduciary duties in their factum; they ought to have made the same concession with respect to tort liability.

[328] The above conclusion is not based upon the provision in the Transfer Agreement, discussed below, that Waypoint agreed to hold Ontario harmless in respect of any litigation after divestment. It is based on the fact that Waypoint became directly responsible for the psychiatric health care at The Penetanguishene Psychiatric Hospital and Waypoint is not a Crown agent, employee, or servant.

(f) Tort Claims and Ontario’s Transfer Payment Recipient Argument

[329] There is another argument that support Ontario’s position that it is not liable post-divestment.

[330] Relying on sections 1 and 9 of the Crown Liability and Proceedings Act, 2019, Ontario submits that there are no viable tort claims against it after the divestment of the psychiatric hospital. Sections 1 and 9 of the Act state:

Interpretation and Application

Definitions

1 (1) In this Act,

“Crown” means the Crown in right of Ontario;

“proceeding” means an action or application for damages and any other civil proceeding in respect of damages to which the rules of court apply;

“transfer payment recipient” means a person or other entity that directly or indirectly receives a grant, transfer payment or other funding or financial assistance from the Crown to support, in whole or in part, the delivery of services to members of the public, including,

(a) […]

(b) a hospital within the meaning of the Public Hospitals Act,

Act or omission

(3) A reference in this Act to an act or omission includes reference to neglect and default.

Limitations on Crown liability

9 (1) The Crown is not liable for torts committed by,

[…] (a) Crown agencies;

(c) transfer payment recipients; or

[331] As set out in the Transfer Agreement and the appended Hospital Service Accountability Agreement, Ontario provides annual funding to Waypoint to operate The Hospital and to provide services to patients. Ontario argues that Waypoint is thus a “transfer payment recipient” as defined by the Crown Liability and Proceedings Act, 2019 and that this means that Ontario is entitled to the protection from crown liability provided by s. 9 of the Act.

[332] I agree with Ontario’s argument. It is plain and obvious that Ontario cannot be liable for any impugned conduct on the part of Waypoint after the divestment. See Foley v. Victoria Hospital London Health Services Centre.[^76]

R. Identifiable Class Criterion

1. General Principles

[333] 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.[^77]

[334] 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.[^78]

[335] 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.[^79] 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.[^80] A proposed class definition, however, is not overbroad because it may include persons who ultimately will not have a successful claim against the defendants.[^81]

[336] 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.[^82]

2. Discussion and Analysis

[337] The Defendants challenge the Plaintiffs’ proposed class definition as overbroad; i.e., as including as putative Class Members patients at The Penetanguishene Psychiatric Hospital whose claims are not rationally connected to the common issues and who should not be bound by the outcome of the common issues trials. In particular, the Defendants submitted that the class definition: (a) ought to exclude the patients of the Regional Program; and (b) ought to exclude those patients who had their seclusion reviewed by the Ontario Review Board.

[338] I agree that the Regional Program patients should be excluded, but I do not agree that the proposed class definition is otherwise unsatisfactory. With a revision to the definition to exclude the patients of the Regional Program, the Plaintiffs satisfy the identifiable class criterion.

[339] The Regional Program patients should be excluded because there is no basis in fact that they should be included and they are not rationally connected to the common issues proposed by the Plaintiffs, which for present purposes, I will assume satisfy the common issues criterion.

[340] The core of the Plaintiffs’ proposed class action is with respect to patients in a maximum security psychiatric setting of which approximately 85% of the putative Class Members are forensic involuntary patients in a high security ward of the Penetanguishene Psychiatric Hospital.

[341] The focus of the Plaintiffs’ action is the High Secure Provincial Forensic Program. While it is conceivable that a patient in the Regional Program could be moved from the Regional Program into the High Secure Provincial Program, then they would be included as Class Members. However, there is no basis in fact for including patients admitted just to the Regional Programs as putative class members.

[342] There is an easy fix to this problem of overbreadth. The class definition should be amended as follows:

(a) All persons who, starting on January 1, 2000, were inpatients of the High Secure Provincial Forensic Program at Waypoint Centre for Mental Health Care (formerly “Mental Health Centre Penetanguishene” or “MHCP”) and who were confined (pursuant to seclusion orders or behaviour management plans, including but not limited to IMPs, TSPs and CPPs) and/or restrained; (“Class” and “Class Members”)

[343] With this revision to the class definition, the Class Members would number approximately 3,700 patients. That only some of these Class Members would have been confined and/or restrained but not necessarily secluded is not a valid objection to the class definition. It may be that some of the 3,700 Class Members do not have claims; however, as noted above, a class definition is not overbroad if it may include persons who ultimately will not have a successful claim against the defendant.

[344] I do not see the need to narrow the class definition to exclude Class Members who have had their seclusion reviewed by the Ontario Review Board or by the court on an appeal of the decision of the Consent and Capacity Board.

[345] The Defendants submit that including patients who have had seclusion and restraint orders reviewed would be to tolerate an impermissible collateral attack on the Boards’ or the courts’ decisions about restraint. The problem with this submission is that the doctrine that precludes collateral attacks on the decisions of courts and tribunals requires a case-by-case analysis and is really a matter of the defence of individual issues trials.

[346] I conclude that insofar as the identifiable class criterion is concerned with the above revised class definition, the Plaintiffs satisfy this criterion.

S. Common Issues Criterion

1. General Principles

[347] 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.[^83]

[348] 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.[^84]

[349] 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.[^85] 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.[^86]

[350] 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.[^87]

[351] The common issue criterion presents a low bar.[^88] 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.[^89] Even a significant level of individuality does not preclude a finding of commonality.[^90]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.[^91]

[352] 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.[^92]

2. Common Issues

[353] The Plaintiffs proposed the following common issues:

Solitary Confinement common issue

1. Do the conditions of confinement at Waypoint (pursuant to seclusion orders and behaviour management plans, including IMPs, TSPs and CPPs) amount to solitary confinement?

Negligence common issues

2. Do some or all of the Defendants owe a duty of care to the Class Members with respect to the conditions, implementation, and oversight of seclusion and restraints at Waypoint?

3. If the answer to (2) is “yes”, what is the standard of care?

4. If the answer to (2) is “yes”, do Waypoint’s policies and practices with respect to the conditions, implementation, and oversight of seclusion and/or restraints breach the duty of care owed to the Class Members by some or all of the Defendants? If “yes”, when and how?

5. If the answer to (1) and (2) are “yes”, did some or all of the Defendants breach the duty of care owed to the Class Members by some or all of the Defendants?

Fiduciary duty common issues

6. Did Ontario and/or Waypoint owe a fiduciary duty to the Class Members with respect to the use, conditions, and oversight of seclusion and restraints at Waypoint?

7. If the answer to (6) is “yes”, what is the content of that fiduciary duty?

8. If the answer to (6) is “yes”, do Waypoint’s policies and practices with respect to the use, conditions, and oversight of seclusion and/or restraints breach the fiduciary duty owed to the Class Members by Ontario and/or Waypoint? If “yes”, when and how?

9. If the answer to (1) and (6) are “yes”, did some or all of the Defendants breach their fiduciary duty?

10. If the answer to (8) and/or (9) is “yes”, are Ontario and/or Waypoint’s breaches equitably fraudulent?

11. If the answer to (10) is “yes”, are Ontario and/or the Individual Defendants liable for knowing assistance of these breaches of fiduciary duty?

Non-delegable duty common issues

12. Does Ontario owe a non-delegable duty to the Class Members with respect the conditions and supervision of their detention and/or “observation, care and treatment” at Waypoint?

13. If the answer to (2), (6), and/or (12) is “yes”, what is the nature of Ontario’s duty or duties before and after December 2008?

14. If the answer to question (10) is “yes”, has Ontario breached its non-delegable duty or duties it owes the Class Members by the use of seclusion and/or restraints at Waypoint?

15. If the answer to questions (1) and (12) are “yes”, has Ontario breached its non-delegable duty or duties it owes to the Class Members?

Vicarious liability common issues

16. [deleted in Plaintiffs’ factum]

17. If the answer to one or more of questions (4), (5), (8), or (9) is “yes”, is Waypoint vicariously liable for the conduct of the Individual Defendants?

18. If the answer to one or more of questions (4), (5), (8), or (9) is “yes”, are some or all of the Defendants vicariously liable for the conduct of Waypoint employees?

Charter common issues

19. Do Waypoint’s and/or Ontario’s policies and practices with respect to the use, conditions, and oversight of seclusion and/or restraints deprive the Class Members of liberty or security of the person under section 7 of the Charter?

20. If the answer to (1) is “yes”, does Waypoint’s and/or Ontario’s use of solitary confinement deprive the Class Members of liberty or security of the person under section 7 of the Charter?

21. If the answer to (19) and/or (20) is “yes”, does the deprivation of the Class Members’ right liberty or security in accordance with the principles of fundamental justice?

22. Do Waypoint’s and/or Ontario’s policies and practices with respect to the use, conditions, and oversight of seclusion and/or restraints constitute cruel and unusual treatment or punishment under s. 12 of the Charter?

23. If (1) is “yes”, does Waypoint’s and/or Ontario’s use of solitary confinement constitute cruel and unusual treatment or punishment under s. 12 of the Charter?

24. If the answer to question (21) is “no” and/or the answer to (22), or (23) is “yes”, were such violation(s) of the Class Members’ Charter rights justified under section 1 of the Charter?

Causation, harm, and damages common issues

25. Does the conduct of all or some of the Defendants cause a base level of harm to the Class Members?

26. If the answer to question (24) is “no”, are damages pursuant to section 24(1) of the Charter an appropriate remedy?

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

28. If the answer to (27) is “yes”, what is the appropriate quantum of such damages?

29. Does the conduct of some or all of the Defendants merit an award of punitive damages?

Limitations common issues

30. Does the Defendants’ conduct amount to fraudulent concealment tolling any limitation periods applicable to the Class Members’ claims?

31. Does the Defendants’ conduct toll the running of the ultimate limitations period pursuant to s. 15(4)(c) of the Limitations Act?

32. Does s. 16(1)(h.2)of the Limitations Act preclude the application of any limitation period to the claims of some or all of the Class Members?

3. Discussion and Analysis

[354] When the provincial governments across Canada and the federal government introduced class action regimes, they did not realize that governments and public authorities, i.e., the public sector would be a major target for class proceedings. From the early days of the introduction of class action regimes, amongst the most significant genres of class actions have been actions against public authorities for institutional abuse. Thus, governments that operate schools, orphanages, hospitals, asylums, jails, prisons, penitentiaries etc. have been sued for systemic institutional abuse and the cases have been certified for common issues trials to be followed, if necessary, by individual issues trials.[^93]

[355] The case at bar is a proposed class action that is within the institutional abuse genre of class actions and is an amalgam of cases where the public or private sector operators of psychiatric hospitals or penal institutions have been sued for systemic institutional abuse and cases where the governments have been sued for institutional abuse in jails, prisons, and penitentiaries have been sued for systemic institutional abuse associated with solitary confinement.

[356] As foreshadowed in the overview at the outset of these Reasons for Decision, the immediate proposed class action fails to satisfy the common issues criterion because there is no basis in fact for a systemic wrongdoing that is the lynchpin of an institutional abuse class action.

[357] In the immediate case, taken individually or taken in the aggregate there are no common issues that would make a common issues trial worthwhile.

[358] On an individual basis, there may be individual cases where a putative Class Member was wronged including a violation of his Charter protections but that individual case would not be assisted by a common issues trial.

[359] In the immediate case, the proposed common issues would not avoid duplication of fact-finding or legal analysis of an issue that is a substantial ingredient of each class member’s claim.

[360] In the immediate case, the resolution of the common issues is dependent upon individual findings of fact that would have to be made for each class member, which is to say that the proposed common issues lack commonality. The answers to the questions raised by the proposed common issue are not capable of extrapolation to put the wind in the sails of an inevitable individual issues trials.

[361] It is obviously not an obstacle to the certification of common issues that they will be followed by individual issues determinations, but in the immediate case the common issues do not take the class members’ cases very far and the common issues do not minimize the workload of the courts at those individual issues trials. In the immediate case, there would be very little judicial economy achieved by a common issues trial.

[362] The case of Conway v. Fleming, mentioned above, is illustrative of the procedural realities of the immediate case and is a real world example of what would need to be resolved for each and every class member and how little would be contributed by a common issues trial about the generalities or commonalities of the routines at The Penetanguishene Psychiatric Hospital.

[363] Conway’s case was about a singular event of the alleged to be unlawful restraint of a forced inoculation of medication to calm him down. At the trial in Conway v. Fleming, Conway called himself and an expert witness and Conway read in portions of the transcripts of the examinations for discovery of six of the defendants. The defendants called seven witnesses, six of whom worked at The Hospital and one expert witness. Justice Gibson wrote a 63-page single-spaced decision. Conway lost and was exposed to costs, if requested.

[364] Conway’s story, involving what happened to him at The Penetanguishene Psychiatric Hospital, as reported in Conway v. Fleming concerned a single incident but he no doubt has a life story as gruesome as the gruesome stories of Messrs. Alexander, Benjamin, DeJong, Ducharme, Jenner, and Stolove and thus Conway v. Fleming likely grossly understates the complexity of an individual issues trials.

[365] Telling any of these sad life stories at a common issues trial, however, would not much assist the other putative class members in proving their own cases.

[366] The case at bar lacks a class-wide predicate wrongdoing that might obviate the need to proceed to individual issues trials apart from determining the quantum of compensation.

[367] The above comments are sufficient to explain why all 32 of the proposed common issues do not satisfy the common issues criterion. That said, I shall discuss seriatim the commonality of the Plaintiffs’ proposed common issues.

(a) Solitary Confinement Common Issue: Q.1

[368] The Plaintiffs submit that there is some basis in fact that seclusion as commonly practised at The Penetanguishene Psychiatric Hospital is a form of solitary confinement and they propose a common issue based on this issue. The Plaintiffs rely on the decisions in courts across the country that have found that placing an inmate with a serious mental health illness in administrative segregation or placing any inmate in administrative segregation for a prolonged period of time (eventually defined to be fifteen or more days in segregation) is negligence, breach of fiduciary duty, and/or a breach of the inmate’s rights under sections 7 and 12 of the Charter.[^94]

[369] In Barker v. Barker,[^95] Ontario was held liable for its treatment of psychiatric patients at the Oak Ridge Division of The Penetanguishene Psychiatric Hospital and in Banman v. Ontario,[^96] an action against Ontario was recently certified where it was alleged that the treatment programs at the St. Thomas Psychiatric Hospital were systemically culpable. The commonality of the treatment programs found to exist in those cases does not exist in the Plaintiffs’ case against Ontario and Waypoint.

[370] In my opinion, Question 1 does not satisfy the criterion for a common issue. There is no basis in fact for the posited equivalence between solitary confinement in a penitentiary and seclusion at The Penetanguishene Psychiatric Hospital for the reasons described earlier in these Reasons for Decision. The imposition of restraint and seclusion at The Penetanguishene Psychiatric Hospital may raise individual issues, but it does not raise systemic issues.

[371] In the immediate case, the Defendants have met the challenge of demonstrating that the conditions of confinement at The Penetanguishene Psychiatric Hospital (pursuant to seclusion orders and behaviour management plans, including IMPs, TSPs and CPPs) do not categorially amount to solitary confinement. In individual cases, there may have been culpable solitary confinement but there is no basis in fact across the class that the restraint and seclusion imposed amounted to culpable solitary confinement.

[372] Question No. 1 does not satisfy the common issues criterion.

(b) Negligence Common Issues: Q Nos. 2-5

[373] Proposed common issues Questions 2 to 5, the negligence common issues, superficially appear to satisfy the common issues criterion. There is a semblance of commonality to general negligence questions in every systemic negligence class action in asking whether the Defendants owe a duty of care and what is that standard of care where there is a similarly situated group like the involuntary forensic patients at The Penetanguishene Psychiatric Hospital. However, for the reasons expressed above, the commonality is illusory and there is no basis in fact for a common issue about negligence. There is no commonality because there is no basis in fact for systemic negligence.

[374] The answers to the questions of whether there is a duty of care owned by a psychiatric hospital and what is the standard of the duty of care are settled questions,[^97] and the answers at a common issues trial while having superficial commonality will not do much to advance the class members’ case. The fundamental issue in each and every case will be not whether there is a duty of care, or whether there is a standard of care, the fundamental issue in each and every case will be whether there has been a breach of the standard of care and, as demonstrated above, whether the breach is an idiosyncratic matter. And it may be added, the various defences to the alleged breaches are also individual issues matters.

[375] Moreover, while undoubtedly there is a common duty of care to the putative class members and while a common standard of care undoubtedly can be articulated, the common issues answers at a common issues trial would be so generalized that they would not avoid duplication of fact-finding or of legal analysis at the inevitable individual issues trials.

[376] Thus, there is no basis in fact for a common issue about systemic negligence and if there were common issues about systemic negligence the answers would depend upon individual findings of fact that would have to be made for each class member. There are no common answers that would benefit other class members.

[377] Questions Nos. 2-5 do not satisfy the common issues criterion.

(c) Fiduciary Duty Common Issues: Q Nos. 6-11

[378] The above analysis applies to the fiduciary duty common issues. Questions 6-11 do not satisfy the common issues criterion.

(d) Non-delegable Duty Common Issues: Q Nos. 12-15

[379] Earlier in these Reasons for Decision, I concluded that it is plain and obvious that the Plaintiffs do not satisfy the cause of action criterion for a claim of non-delegable duty as against Ontario for the post-divestment period. It follows that there are no certifiable common issues on this topic.

[380] I add that in any event, the non-delegable duty common issues (Q Nos. 12-15) do not satisfy the common issues criterion for the same reasons that the negligence and breach of fiduciary duty common issues do not satisfy this criterion.

(e) Vicarious Liability Common Issues: Q Nos. 17-18

[381] The vicarious liability common issues (Q Nos. 17-18) do not satisfy the common issues criterion for the same reasons that the negligence and breach of fiduciary duty common issues do not satisfy this criterion.

(f) Charter Common Issues: Q Nos. 19-24

[382] The Charter Common Issues (Q Nos. 19-24) do not satisfy the common issues criterion for the same reasons that the negligence, breach of fiduciary duty, and vicarious liability common issues do not satisfy this criterion.

[383] To be more precise, the want of commonality arises because while the Charter claims satisfy the cause of action criterion and the identifiable class criterion, and while there may be individual breaches of the Charter, the breaches are not systemic. The Charter claims must be decided on a case-by-case basis.

[384] In Banman v. Ontario,[^98] although I certified the action against the St. Thomas Psychiatric Hospital, I concluded that the proposed Charter common issues did not satisfy the common issues criterion. What I said in Banman applies to the circumstances of the immediate case. I stated at paragraphs 290-291:

290. Whether, for instance, the PST program [or in the immediate case, whether restraint] 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.

[385] In the immediate case, there is some basis in fact that on an individual basis, the treatment of restraint at The Penetanguishene Psychiatric Hospital was cruel and unusual, but there is no basis in fact that every treatment of restraint at The Hospital was a cruel and unusual punishment. The proposed Charter common issues do not satisfy the common issues criterion.

(g) Causation, Harm, and Damages Common Issues: Q Nos. 25-29

[386] The causation, harm, and damages common issues (Q Nos. 25-29) do not satisfy the common issues criterion for the same reasons that the negligence, breach of fiduciary duty, vicarious liability, and Charter breach common issues do not satisfy this criterion.

[387] I add that aggregate damages pursuant to s. 24 of the Class Proceedings Act, 1992 are not available in the circumstances of the immediate case. The prerequisites of s. 24 which entail that a liability finding be made at the common issues trial cannot be satisfied.

[388] Had it been certifiable, the legal architecture of this proposed class action would have required individual issues determinations to perfect the causes of action and for the determination of causation and quantification of damages. The prerequisites for an aggregate damages award are not present in the immediate case. There is no basis for an across the class breach of the Charter or any of the allegedly systemic causes of action.

[389] Further, in the immediate case, had there been a prospect of an across the class breach of the Charter (which there was not), there was no basis in fact for establishing a base level of compensable harm as was established in the administrative segregation cases of Brazeau v. Canada (A.G.) and Reddock (A.G.).

[390] In this regard, it needs to be appreciated that there is a difference between the “harm” of a placement in administrative segregation and “compensable harm” for a placement in administrative segregation. In Brazeau and Reddock, the evidence established that every placement in solitary confinement caused psychiatric distress and harm, but in Brazeau and Reddock, a base level of compensable harm was not for every placement in solitary confinement; rather, the base level of compensable harm was for placements of fifteen or more days. In the immediate case, Dr. Grassian testified that it is difficult to state, in the abstract, what length of time in seclusion would result in harm to a patient in a hospital such as The Penetanguishene Psychiatric Hospital.

[391] In the immediate case, there is no basis in fact for a base level of compensable harm because the experience of psychiatric seclusion is not uniform but rather is idiosyncratic.

(h) Limitations Common Issues: Q Nos. 30-32

[392] The Defendants have pleaded limitation period defences. From the Defendants’ perspective these defences would have to be resolved on an individual issues basis; there is no commonality about limitation period defences. Individual limitations issues, including discoverability, are considered after the resolution of the common issues.[^99]

[393] The purpose of the Plaintiffs’ limitation common issues is to rely on fraudulent concealment or s. 15(4)(c) and s. 16(1)(h.2) of the Limitations Act on a class-wide basis to preclude any limitation period defences.

[394] While there is some basis in fact for a common issue for a class-wide rebuttal to the defences that would be raised at the individual issues trials, since there are no other common issues, standing alone, the Plaintiffs’ limitations common issues are not certifiable as common issues.

(i) Conclusion

[395] For the above reasons, the Common Issues Criterion is not satisfied in the immediate case.

T. Preferable Procedure Criterion

1. General Principles

[396] 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.[^100] The Plaintiffs proposed class action is governed by the criterion before subsection 5 (1.1) was added to the Class Proceedings Act, 1992 in 2020.[^101] The preferable criterion is set out in sections 5(1)(d) of the Act, which states:

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

[397] 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.

[398] In AIC Limited v. Fischer,[^102] 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.[^103]

[399] 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.[^104]

[400] 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.

[401] 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.

[402] 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 certification criteria as a prerequisite to the fourth criterion of preferability.

[403] 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.[^105]

2. Discussion and Analysis

[404] Given that there are no certifiable common issues, it is axiomatic that the Plaintiffs’ proposed class action does not satisfy the preferable procedure criterion which is the situation in the case at bar.[^106]

[405] I shall nevertheless undertake a preferable procedure analysis on the assumption that the first three and the fifth certification criterion are satisfied in the immediate case.

[406] Based on this assumption, I conclude that the preferable procedure criterion is not satisfied. In my opinion, joinder actions of those putative class members who have individual claims against Ontario or against Waypoint is the preferable procedure. A class action is not preferable.

[407] I agree with the Plaintiffs’ arguments that proceedings before the Ontario Review Board, proceedings before the Consent and Capacity Board, seeking the assistance of the Psychiatric Patient Advocate Office, and complaint proceedings to professional regulatory bodies including the College of Nurses of Ontario and the College of Physicians and Surgeons of Ontario are not alternatives as a means to achieve access to justice and behaviour modification. The Plaintiffs and the Class Members’ causes of action and the defences to those causes of action are matters for the courts to decide. Some sort of court proceeding is what is called for in the immediate case.

[408] In the immediate case, on the assumption that the other certification criteria are satisfied, I am satisfied that the proposed class action, which would involve both a common issues trial and individual issues trials would be manageable and, thus, the question becomes whether there are preferable alternatives to a class proceeding that involve a common issues trial followed by individual issues trials.

[409] (I parenthetically observe that had the male and female patients of the Regional Program not been excluded from the class definition, the action would likely not have been manageable.)

[410] In the immediate case, the only alternative to a class proceeding in which there will be a common issues trial followed by individual issues trials is a joinder action of the involuntary forensic patients who have individual claims for negligence, breach of fiduciary duty, or Charter damages claims. A joinder action would involve assembling a group of co-plaintiffs. The group definition is the same as the definition in the proposed class action.

[411] The advantages of a joinder action in the immediate case are that: (a) it immediately provides access to justice without the need to run the gauntlet of a Certification Motion; and (b) it provides access to justice without the drag of a common issues trial that would contribute little to the inevitable individual issues trials to follow.

[412] It would appear that there is already assembled the critical mass of co-plaintiffs that would make the case attractive to an entrepreneurial lawyer. The size of the group of co-plaintiffs will be smaller than the class and in a sense under-inclusive but this diminishment in the size of the group seeking access to justice is illusory because the number of co-plaintiffs who opt in to being plaintiffs approaches the number of class members who must opt-in to the individual issues phase of the class action. In the immediate case, individual issues trials are inevitable and necessary to decide liability and in the immediate case there is no prospect of an aggregate damages award.

[413] That the alternative of a joinder action of co-plaintiffs is possible is demonstrated by the Barker v. Barker case. This case was not certified but it was continued as a joinder action pursuant to s. 7 of the Class Proceedings Act, 1992. As noted above, the Barker action involved a group of patients suffering atrocities at the Oak Ridge Division of The Penetanguishene Psychiatric Hospital being assembled as co-plaintiffs.

[414] In 2000, in what was originally styled as Egglestone v. Barker, Mr. Egglestone later Ms. Taylor commenced a proposed class action. In 2001, Mr. Joanisse was added as a co-plaintiff. [^107] In 2003, the plaintiffs moved for certification of their action as a class action. The certification motion was dismissed.[^108] After unsuccessful appeals, 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 a joinder action of approximately thirty individual co-plaintiffs. The joinder motion was granted.[^109] The name of the lead plaintiff changed and in the joinder action, the co-plaintiffs moved for a summary judgment. A summary judgment was granted in 2017, but the decision was reversed by the Court of Appeal in 2018 on procedural grounds.[^110] The action was tried in 2019. The trial was bifurcated into liability and damages,[^111] and the trial continued into 2020. In June 2020, Justice Morgan released his decision on liability.[^112] In February 2021, Justice Morgan released his decision on damages.[^113] He awarded damages of $9.6 million. The co-plaintiffs were each awarded individual compensation commensurate with their individual damages. The Plaintiffs were awarded the all-inclusive amount of $4.9 million in costs.[^114]

[415] In hindsight, the plaintiffs in Barker v. Barker would have saved themselves two decades of litigation had they from the outset joined together to bring a joinder action. (Approximately six years were preoccupied in the failed attempt at certification and it seems a decade was preoccupied in discoveries and the failed summary judgment motion.)

[416] The Barker v. Barker saga demonstrates that the alternative of a joinder action is feasible. However, Barker v. Barker does not demonstrate that this alternative is necessarily preferable to a class action. Thus, in Banman v. Ontario,[^115] which is a recent institutional abuse case involving the St. Thomas Psychiatric Hospital, which, as noted above resembles, Barker v. Barker, I concluded that a class proceeding was the preferable procedure to a joinder action.

[417] I did so because in that case, there were meaningful common issues and because a disadvantage to a joinder action is that it may leave plaintiffs without access to justice because they have to take steps to be a co-plaintiff. An advantage of a class action is that it automatically assembles a class by an opt-out regime, and a disadvantage of a joinder action is that it is an opt-in regime that may leave worthwhile claimants behind.

[418] One disadvantage of a joinder action where a group has been wronged and seeks access to justice is that it may not be possible for the group to attract a lawyer to take on the group’s case. In the absence of a class action, it may not be possible to assemble a large enough group to make the case attractive to a lawyer to take on the case. While it often goes unappreciated, a very significant advantage of the class action is that it is a client magnet. It is the client magnet feature of a certified class action that attracts Class Counsel to take on the group’s case.

[419] Given the costs and risks of an adverse costs award in litigation between an individual and a formidably resourced and represented defendant, individual litigation of small claims, and even large claims, by an individual or group of individuals is prohibitively expensive. However, if the members of the group can be assembled into a group with a large claim in the aggregate, then an entrepreneurial lawyer, Class Counsel, may be willing to take on the group’s case. It is an integral and ingrained feature of a class action that certification will automatically assemble the totality of the defined group subject to the right of individual class members to opt out. In practice, very few putative class members ever opt out, even if they had individual claims that could support an economically viable individual action.

[420] A class action levels the litigation playing field and allows the members of the group to unite to obtain access to justice. The class action functions because it automatically assembles enough claimants to make it worthwhile for Class Counsel to confront the otherwise prohibitive expense of litigation against a formidable foe and it leaves no potential claimants behind because they are automatically included.

[421] As mentioned above, this advantage of a class action over a joinder action, however, is attenuated to varying degrees in cases in which an individual issues trial is inevitable. It is attenuated because assuming that the common issues trial is successful for the class, the individual class members must opt-in to the individual issues phase of the class action. Once the class action reaches the individual issues phase it is no longer an opt-out regime and each individual class member must decide whether to assume the litigation risk of proceeding. Unlike the common issues phase, the class members are not immunized from an adverse costs award.

[422] In the immediate case, the advantages of a class action are not present because there are no useful common issues and a common issues trial is a drag on access to justice which will occur for those who opt into individual issues trials. In other words, in the immediate case assuming there were some common issues, the resolution of those issues would not appreciably move the class members’ causes of action forward. It is far preferable to move directly to a joinder action.

[423] In this regard, the case at bar resembles R.G. v. The Hospital for Sick Children,[^116] where the class action was not certified but a group, actually several groups of co-plaintiffs, and several individual actions were and continue to be case managed to resolutions.

[424] The disadvantages of a joinder action are not present in the immediate case. It would appear that there are enough co-plaintiffs to create the critical mass to level the litigation playing field and Barker v. Barker demonstrates that the co-plaintiffs can combine to call all the experts and event witnesses they need in one proceeding to avoid a duplication of forensic resources. Just as an expert would be called to establish the duty of care and the standard of care at a common issues trial, an expert could be called at a joinder trial and then the cases of the individual co-plaintiffs would be adjudicated. This is what happened in Barker v. Barker, and, in my opinion, a similar approach is the preferable procedure to a class action in the immediate case.

[425] A joinder action can be facilitated by s. 7 of the Class Proceedings Act, but s. 7 is not needed to constitute a joinder action. The joinder rules of the Rules of Civil Procedure are very liberal and the rules are designed to avoid a multiplicity of actions.

[426] Thus, provided that there are enough co-plaintiffs to attract a lawyer to take on the case, a joinder action provides as much if not more access to justice, behaviour modification, and judicial economy as does a class proceeding that would inevitably end with individual issues trials.

[427] I conclude that a joinder action is the preferable procedure in the immediate case and that the Plaintiffs do not satisfy the preferable procedure even if there were productive common issues, which there is not.

[428] The Plaintiffs do not satisfy the preferable procedure criterion.

U. Representative Plaintiff Criterion

1. General Principles

[429] The fifth and final criterion for certification as a class action is that there is a representative plaintiff who would adequately represent the interests of the class without conflict of interest and who has produced a workable litigation plan. The representative plaintiff must be a member of the class asserting claims against the defendant, which is to say that the representative plaintiff must have a claim that is a genuine representation of the claims of the members of the class to be represented or that the representative plaintiff must be capable of asserting a claim on behalf of all of the class members as against the defendant.[^117]

2. Discussion and Analysis

[430] Given the positions of the parties, the discussion of the representative plaintiff criterion can be brief.

[431] Only Waypoint objects to the appointment of Ms. Hindrea as a proposed Representative Plaintiff for the family class members. She is the co-litigation guardian of Ruben Stolove. I am not persuaded that Ms. Hindrea should be disqualified.

[432] I am persuaded that there are deficiencies to the litigation plan especially having regard to the treatment of what would have been inevitable individual issues trials.

[433] Deficiencies in a litigation plan may corroborate that there are problems in satisfying the other certification criteria, which is the situation in the immediate case, but if the other certification criterion are satisfied, then deficiencies in the litigation plan can typically be resolved.

[434] In the immediate case, had all the other certification criteria been satisfied, I would have ruled that the action be certified subject to fixing the litigation plan. In the immediate case, however, some causes of actions were not certified and the common issues and the preferable procedure criteria were not satisfied. I therefore conclude that the representative plaintiff criterion is not satisfied.

V. Conclusion

[435] For the above reasons, the Certification Motion is dismissed. If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with the submissions of the Waypoint Defendants and Ontario within twenty days of the release of these Reasons for Decision followed by the Plaintiffs’ submissions with a further twenty days.

Perell, J.

Released: June 25, 2024

Stolove v. Waypoint Centre for Mental Health Care, 2024 ONSC 3639

COURT FILE NO.: CV-20-00648579-00CP

DATE: 20240625

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

RUBEN STOLOVE by his litigation guardians Micha Stolove and Linda Hindrea, MICHA STOLOVE, LINDA HINDREA MICHAEL BURTON ALEXANDER, BARRON JENNER, CHRISTOPHER DUCHARME, COLEBY BENJAMIN by his litigation guardian Kelly Draper and KELLY DRAPER

Plaintiffs

-and-

WAYPOINT CENTRE FOR MENTAL HEALTH CARE, CAROL LAMBIE, ROB DESROCHES, LINDA ADAMS and HIS MAJESTY THE KING IN RIGHT OF ONTARIO

Defendants

REASONS FOR DECISION

PERELL J.

Released: June 25, 2024

[^1]: S.O. 1992, c. 6.

[^2]: R.S.O. 1990, c. F.3.

[^3]: R.S.O. 1990, c. P.40.

[^4]: R.S.O. 1990, c. M.7.

[^5]: R.S.C. 1985, c. C-46.

[^6]: Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.

[^7]: S.O. 2019, c. 7, Sched. 17.

[^8]: R.S.O. 1990, c. C.43.

[^9]: R.S.O. 1990, c. F.31.

[^10]: R.S.O. 1990, c. P.40.

[^11]: S.O. 2010, c. 15.

[^12]: S.O. 1996, c.2, Sched. A.

[^13]: S.O. 1992, c. 30.

[^14]: R.S.C. 1985, c. C-46.

[^15]: R.S.O. 1990, c. P.40.

[^16]: R.S.O. 1990, c. M.7.

[^17]: S.O. 2010, c. 14.

[^18]: R.S.O. 1990, c. O. 1 at [s. 25(2)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-o