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Class Action Certified on Behalf of Ontario Psychiatric Patients
Published in the August 2007 issue of Litigation Notes - View Article
The Ontario Superior Court of Justice recently certified a class action brought on behalf of “…all persons in Ontario who are or have been detained in a detention centre and or prison awaiting an assessment of their mental condition pursuant to an order made under s. 672.11 of the Criminal Code from the 10th day of May 2005 to the date of the certification order”.
The representative plaintiff, Sylvie Phaneuf, was arrested on charges of criminal harassment. She appeared in the Ontario Court of Justice on November 2, 2005 and the presiding judge ordered that she be taken to a psychiatric facility for a thirty day psychiatric assessment pursuant to s. 672.11 of the Criminal Code, to determine whether or not she should be held criminally responsible. He also ordered that the assessment should be conducted in French and should take place at the Royal Ottawa Hospital or any other hospital where a French psychiatrist was available. Due to the unavailability of a French-speaking psychiatrist, the accused remained in custody until November 17, 2005, when she was admitted to Brockville Psychiatric Hospital. The intention at that time was that the assessment would be conducted with the aid of an interpreter. In the end, a French- speaking psychiatrist became available, but the accused refused to speak to him in French and the assessment was conducted entirely in English.
Ms. Phaneuf commenced an action on her own behalf and on behalf of the proposed class on January 16, 2006. The Statement of Claim asked for general, special and punitive damages for wrongful detention, breach of fiduciary duty, breach of duty of care, breach of duty of good faith and breach of their rights and freedoms under the Canadian Charter of Rights and Freedoms. The proposed class included all individuals who had been forced to wait for an assessment pursuant to s. 672.11 of the Criminal Code since the 10th day of November 2004. That date was selected because it was the date of the decision of the Ontario Superior Court in R. v. Hussein. In that case two individuals had waited 32 days and 29 days respectively before receiving a court-ordered assessment. The Court in Hussein declared that this was a violation of their rights under sections 7 and 9 of the Charter and expressed its assumption that the government would “move swiftly to correct the unconstitutionality of the present practice and comply with the Court’s directive within the next six (6) months”.
In order to obtain certification of a class action the plaintiff must establish:
“1. That the claim discloses a cause of action.
2. An identifiable class.
3. That the claim raises issues common to all the class members.
4. That the proposed class proceeding is the preferable procedure to resolve the common issues.
5. That a representative plaintiff is available who can fairly and adequately represent the class, has prepared a workable litigation plan and does not have a conflicting interest with the interests of the other class members.”
With respect to whether or not there was a cause of action, the defendant argued that the order for assessment stipulated that the accused should remain in custody, either in hospital or in the detention centre, until the assessment was completed and that the detention was therefore not unlawful. On this point the Court agreed and concluded that the Statement of Claim did not establish a claim for damages for unlawful detention or false imprisonment.
On the subject of fiduciary duty, the Court held that the law in the area is not settled and that it could not conclude on the motion that a fiduciary duty did not exist in the circumstances of this case. The Court said that it is “…arguable that the defendant, having full control of how assessment orders will be implemented, has a fiduciary duty to the vulnerable individuals who appear to a judge to have mental problems requiring assessment. It is arguable that the defendant owes a duty not to expose them to the dangerous environment of jail pending the completion of the assessment”. Although the plaintiff’s claim “…may appear weak at this stage” the Court held that this was a matter best left to the trial judge.
On the subject of duty of care, the Court held that there is at least “…an arguable case that even in the absence of a fiduciary duty, there could exist a general duty of care to take all reasonable steps to ensure that a bed is immediately available to comply with the assessment order so as not to expose the class member to the jail environment”.
On the subject of a breach of a duty of good faith, the Court doubted whether such a duty exists at all, but the matter had not been pressed by plaintiff’s counsel and the Court concluded that the Statement of Claim failed to disclose a cause of action based on a breach of duty of good faith.
On the subject of identifiable class, the defendant argued that the proposed class was overly inclusive because it might include people who may have been otherwise lawfully detained, such as individuals already detained after a bail hearing or serving a sentence for an unrelated matter. On this point the Court ruled that the defendant may well have a partial or total defence to claims by particular class members but that it was not a requirement of an acceptable definition of the class that all members would be successful. The defendant also argued that it would not be possible to identify all of the class members but the Court was satisfied that the Offender Tracking Information System would enable the defendant to identify all persons who were subject to a s. 672.11 order during the relevant time. The defendant also argued that the class was overly inclusive because it chose as its start date the decision in R. v. Hussein, namely November 10, 2004, whereas in that decision the Court had given the government six months to rectify the situation. On this point, the Court responded by fixing the start date at six months after November 10, 2004, to May 10, 2005.
On the subject of common issues, the Court recognized that there may be individual issues to be decided and that there may be facts which would be a complete defence to a particular claim by a class member, but that there were sufficient common issues, such as whether or not the defendant owed a fiduciary duty and/or duty of care to the class members to ensure that a bed be immediately available and whether detaining the class members in jail until the bed became available was breach of their rights under the Charter.
On the subject of whether or not a class action would be the preferable procedure for the resolution of the common issues, the Court reviewed the principles which require that the class action be a fair, efficient and manageable method of advancing the claim and be preferable to other reasonably available means of resolving the claims of the class members. This analysis requires keeping in mind the three principle advantages of class actions, namely, judicial economy, access to justice and behaviour modification. The Court concluded that in this case the resolution of the common issues would significantly advance the litigation, that a single trial on those issues would advance the goal of judicial economy and that access to justice would be enhanced by a single trial.
The class constitutes a vulnerable group and the Court suggested that it would be unlikely that they would seek justice in individual actions.
As to whether or not the plaintiff was an adequate representative, the defendant argued that the plaintiff was not an appropriate representative because of her mental illness, lack of understanding of the litigation process and lack of funding. The Court disagreed, noting that the plaintiff had been receiving treatment and had gained considerable insight in resent months. Furthermore, she is a well educated person and had access to the advice and experience of a well established law firm.
Consequently, the action was certified as a class action.Sylvie Phaneuf v. Her Majesty the Queen in Right of Ontario, File No. 16-CV-33444 (OSCJ)