Teresa-Anne Martin

The Court of Appeal for Ontario dismissed the appeal from the denial of certification of a class action alleging systemic negligence in the use of seclusion and restraint at a forensic psychiatric hospital.

The court found that the motion judge did not err in concluding that the claims lacked commonality, as the alleged wrongdoing could only be determined on an individual basis.

The court also upheld the dismissal of claims against individual hospital administrators and affirmed the costs award, finding no reversible error in the motion judge’s analysis.

Following the dismissal of the plaintiffs' motion for certification in a systemic negligence class action against a psychiatric hospital and the Province of Ontario, the successful defendants sought costs.

Waypoint claimed approximately $1.3 million and Ontario claimed approximately $815,000.

The court found the claimed amounts to be fair and reasonable given the complexity of the case and the resources expended by the plaintiffs.

Applying section 31 of the Class Proceedings Act, the court applied an approximate 10% discount due to the public interest nature of the litigation, awarding Waypoint $1,170,000 and Ontario $735,000 in partial indemnity costs.

The plaintiff, Marnie Affleck, sued Sunrise Senior Living, Inc., Sunrise of Erin Mills, Jennifer Seehra, and Elisabette Garcia for negligent infliction of nervous shock and defamation, seeking substantial damages.

The claims against her sister and father's estate were dismissed earlier.

The plaintiff, self-represented, alleged that the defendants unreasonably impeded her ability to see her mother, a resident at Sunrise, causing her trauma and injuries.

The court found that the defendants' actions were reasonable and justified, taken to protect the mother from financial and emotional abuse by the plaintiff, and to maintain a safe environment for staff and other residents.

The court also found the plaintiff's evidence lacked credibility and medical support for her alleged injuries.

The claims for negligent infliction of nervous shock and defamation were dismissed.

The court awarded substantial indemnity costs of $330,000 to the defendants due to the plaintiff's unreasonable conduct and lack of preparation.

The defendant moved to dismiss the plaintiff's personal injury action after the plaintiff failed to comply with a court order requiring him to appoint a new lawyer or file a notice of intention to act in person.

The self-represented plaintiff brought a cross-motion to remove the defendant's counsel, arguing a conflict of interest because the counsel was an in-house lawyer for Aviva, the insurer for both parties.

The court dismissed the cross-motion, finding no lawyer-client relationship existed between the plaintiff and Aviva's in-house counsel.

The court adjourned the defendant's motion to dismiss, granting the plaintiff an extension to comply with the order to appoint counsel or act in person.