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Class Action (Ont) - Certification - Common Claims and Defences [CPA 5(1)(c)]. Stolove v. Waypoint Centre for Mental Health Care
In Stolove v. Waypoint Centre for Mental Health Care (Ont CA, 2025) the Ontario Court of Appeal dismissed an appeal, here from "the dismissal of their motion to certify a class proceeding alleging systemic negligence in the operation and oversight of the maximum security forensic psychiatric hospital in Penetanguishene, Ontario that provides care for involuntary patients".
Here the court considers the 'common issues' element of the certification test [CPA s.5(1)(c)]:[22] At the same time, the motion judge observed that there must be a basis in the evidence to establish the existence of common issues. To establish commonality, the proposed issue must be capable of being answered in common across the entire class.
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(3) The common issues criterion
[27] The motion judge explained that a class proceeding can only be certified if it raises common issues. For an issue to be a common issue, it must be a substantial ingredient of each class member’s claim such that its resolution will avoid duplication of fact-finding or legal analysis, thereby facilitating judicial economy and access to justice: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, at para. 18. The answer to a question raised by a common issue must be capable of extrapolation, in the same manner, to each member of the class.
[28] At the same time, the motion judge acknowledged that 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: Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 354, at para. 39. Even a significant level of individuality does not preclude a finding of commonality: Hodge v. Neinstein, 2017 ONCA 494, 136 O.R. (3d) 81, at para. 114. Moreover, a common issue need not dispose of the litigation. All that is required is that it be an issue of fact or law common to all claims such that its resolution will advance the litigation.
[29] Applying this framework, the motion judge found that the proposed class proceeding failed to satisfy the common issues criterion.
[30] The key element of the motion judge’s analysis was that there is no basis in fact for a systemic wrongdoing that is the foundation of an institutional abuse class action. The resolution of the common issues is dependent upon individual findings of fact that would have to be made for each patient because, amongst other reasons, the use of restraint and seclusion is authorized by statute and the common law in accordance with the Least Restraint Principle. In fact, at common law persons involved in the care and treatment of a patient are under a legal duty to exercise reasonable care to ensure the patient does not harm themselves or others, and could be liable for failure to satisfy that duty: citing Conway v. Fleming, [1996] O.J. No. 1242 (Gen. Div.), aff’d (1999) 1999 CanLII 19907 (ON SC), 43 O.R. (3d) 92 (Div. Ct.), leave to appeal refused, [1999] S.C.C.A. No. 473. In other words, restraining and secluding a patient may be culpable in individual instances but is not per se unlawful.
[31] The motion judge noted that psychiatric hospitals around the world use restraint and seclusion to manage behaviours that pose risks to the patient or to others and as a means to de-escalate an emergency situation involving a violent or aggressive patient. Moreover, seclusion in psychiatric facilities is associated with active treatment of the psychiatric conditions of the patient. This fact distinguishes the use of seclusion in a psychiatric hospital from the use of solitary confinement at a penitentiary, as administrative segregation at a correctional facility serves no therapeutic purpose and scientific evidence shows that it is psychologically harmful rather than curing.
[32] The motion judge reviewed the Hospital’s policies and procedures on the use of restraint and seclusion and found that that they expressly incorporate the Least Restraint Principle. The relevant policies require that decisions to restrain or seclude a patient be made by a clinical team, reflecting their clinical assessment of the level of risk a patient poses to themselves or others. In doing so, the clinical team evaluates a variety of factors including the patient’s presenting behaviour, medical history, previous admissions, diagnoses, treatment, and any history of critical incidents such as violence or self-harm or escalation leading to uncontrollable, dysfunctional, assaultive, or destructive behaviour. Moreover, staff can discontinue seclusion at any time if they determine the patient no longer poses a serious risk of bodily harm to himself or anyone else. Seclusion orders are in effect for a maximum of 24 hours and can only be renewed by a psychiatrist exercising clinical judgement. The motion judge noted that, adjusted for the circumstance that the Hospital is a high security facility, its policies on seclusion are comparable to those of other psychiatric facilities in the province.
[33] Even if the Hospital’s policies and procedures might be “excellent on paper”,[1] the appellants argued that these policies and practices had systematically not been followed. The motion judge agreed that the appellants had shown that there were departures from the Least Restraint Principle and that “[t]here is some basis in fact that perhaps some not inconsiderable number of patients at the Hospital have individual claims against Ontario or Waypoint.” But while there was no doubt that there had been departures from the Least Restraint Principle, any such departures could only be identified on a patient-by-patient basis as opposed to through a lens of systemic wrongdoing. In other words, while Hospital staff had undoubtedly failed to properly apply the Least Restraint Principle in individual cases, there was no evidence that this had occurred on the basis of a “class-wide predicate wrongdoing”. This meant that the resolution of the proposed common issues required individual findings of fact that would have to be made for each class member. As the motion judge explained at paras. 174 and 178: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 judgement 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.
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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. [34] Because there was no basis in fact for the existence of a systemic wrongdoing, there were ultimately no common issues that would make a common issues trial worthwhile. The motion judge accordingly found that the proposed class action failed to satisfy the common issues criterion.
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[45] The motion judge did not fail to appreciate and articulate the correct legal test for determining whether a proposed class proceeding satisfies the “common issues” criteria. The motion judge correctly stated that what distinguishes a common issue is that it can be answered in common across the entire class, thereby avoiding duplication of fact-finding or legal analysis and facilitating judicial economy and access to justice.
[46] The refusal of the motion judge to certify this class proceeding was not based on any misunderstanding of the relevant legal principles. Rather, it resulted from his finding that the issues raised by the putative class proceeding could only be resolved through individualized assessments that would have to be made at individual trials. While the appellants dispute this conclusion, their objection is not to the legal test as formulated by the motion judge but to the particular manner in which he applied it. This is a question of mixed fact and law, reviewable on a standard of palpable and overriding error.
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[63] This motion judge’s conclusion on commonality is supported by this court’s decision in Cirillo v. Ontario, 2021 ONCA 353, 486 C.R.R. (2d) 25, leave to appeal refused, [2021] S.C.C.A. No. 296, where representative plaintiffs sought to certify a class action for any person who did not receive a bail hearing within 24 hours. This court upheld an order dismissing certification, partly because determining whether the delay amounted to a Charter violation required a case-by-case analysis and was inappropriate for common determination: see Cirillo, at paras. 57-59, 67.
[64] To the same effect is the decision of the British Columbia Court of Appeal in Thorburn v. British Columbia (Public Safety and Solicitor General), 2013 BCCA 480, 52 B.C.L.R. (5th) 223, where a representative plaintiff had been arrested at a protest and strip-searched pursuant to a particular policy. The plaintiffs sought to certify a class proceeding on behalf of all detained persons who had been subjected to routine strip searches at the Vancouver city jail but were not remanded into pre-trial custody. The court upheld the dismissal of a certification motion on the basis that only an individual assessment of the relevant circumstances unique to each class member would allow a judge to determine if a cause of action been established: see Thorburn, at paras. 41-43. . Lilleyman v. Bumble Bee Foods LLC
In Lilleyman v. Bumble Bee Foods LLC (Ont CA, 2024) the Ontario Court of Appeal dismissed a plaintiff's 'price-fixing conspiracy' class action certification appeal.
Here the appeal court considers the CPA s.5(1)(c) 'common issues' certification element, approving of the trial judge's treatment:[18] The motion judge noted that the test for certification is to be applied in a purposive and generous manner to give effect to the goals of class actions, including to provide access to justice for litigants, to encourage behaviour modification and to promote the efficient use of judicial resources. That said, the certification test is meant to be a meaningful screening device, to ensure that the plaintiff’s claims can appropriately be prosecuted as a class proceeding.
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(3) The some-basis-in-fact criterion for the proposed common issues
[28] The motion judge explained that one of the key requirements on a certification motion is that the claims of the class members raise common issues, as required by s. 5(1)(c) of the CPA. In particular, the plaintiff must show that there is “some basis in fact” that the proposed common issues exist, and that the issues extend across the members of the class.
[29] The motion judge noted that the some-basis-in-fact standard does not require evidence on a balance of probabilities, nor should the court attempt to resolve conflicts in the evidence at the certification stage. The certification analysis 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. Rather, the difficult task on a certification motion is to “walk a tight rope of determining that there is some basis in fact for the certification criteria while not making any determination of the merits of the proposed representative plaintiff’s case.”
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[33] The motion judge also found that the appellant had failed to show that there was a common issue regarding the class members’ damages. In particular, the appellant had failed to provide a methodology that was sufficiently credible or plausible to establish loss on a class-wide basis.
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[71] The motion judge was well aware that requiring some basis in the evidence that the proposed common issues actually exist is quite different from determining the merits of the proposed action. He described this requirement as a “low evidentiary standard” that merely required “some evidentiary foundation to conclude that the alleged conspiracy with attendant harm to the Class Members could or might have occurred in Canada.” But the some-basis-in-fact standard did not require evidence on a balance of probabilities and did not require the court to resolve conflicting facts and evidence at the certification stage. This reflected the fact that at the certification stage, the court is ill-equipped to resolve conflicts in the evidence or to engage in an assessment of the viability or strength of the action.
[72] The fact that a plaintiff on a certification motion must provide some basis in the evidence that an alleged conspiracy could or might have occurred is a minimal but necessary requirement. As a matter of logic and common sense, if there is no basis in fact to suppose that a conspiracy with attendant harm actually occurred, it necessarily follows that there is no basis to suppose that such a nonexistent conspiracy could have caused harm across members of the proposed class. Justice de Montigny made this point in Jensen, at para. 77: “I fail to see how it can seriously be argued that a judge could determine whether the claims of the class members raise common questions of fact or law without first deciding whether there is some basis in fact for the very existence of each common issue.”
[73] Whether the necessary analysis is described as involving one or two steps is beside the point. A key rationale and purpose of the certification process is to root out frivolous and unfounded claims. If a claim of conspiracy with no factual underpinning whatsoever could proceed as a class action merely by alleging that the purported conspiracy caused harm to a group of individuals, virtually any such conspiracy claim would have to be certified.
[74] Requiring a plaintiff to satisfy this minimal evidentiary standard is entirely different from requiring proof of the claim, whether on a balance of probabilities or otherwise. The standard requires some basis in fact, not proof of fact. It does not involve weighing the merits of the claim or the resolution of conflicts in the evidence, but merely asks whether there is some minimal evidence in support of it. Certification of a claim that is unable to satisfy such a minimal evidentiary standard would undermine judicial economy, and in the process indirectly impair access to justice for other arguably meritorious claims.
[75] Contrary to the appellant’s submissions, this is not a novel requirement nor is it a departure from existing jurisprudence of Ontario courts on this issue. As Miller J.A. recently observed in Teva, at para. 104, “[w]hile the ’some basis in fact’ test is a low evidentiary standard, and a court should not resolve conflicting facts and evidence, the court retains a gatekeeping function and certification will be denied if there is an insufficient evidentiary basis for the facts to establish the existence of common issues.” Thus, in Teva this court upheld a dismissal of a certification motion on the grounds, inter alia, that there was no basis in the evidence in support of certain of the claims made by the plaintiffs. A similar approach is routinely applied in the review of certification decisions by the Divisional Court, as demonstrated by recent decisions such as: Simpson v. Facebook, 2022 ONSC 1284, 160 O.R. 3(d) 629 (Div. Ct.), at paras. 25-26; Kuiper v. Cook, 2020 ONSC 128, 149 O.R. (3d) 521 (Div. Ct.), at paras. 27-33; Frayce v. BMO, 2024 ONSC 533 (Div. Ct.), at paras. 12-16 & 21-25.
[76] Nor is this approach inconsistent with the above-noted comments by Rothstein J. in Pro-Sys Consultants to the effect that on a certification motion “evidence that the acts alleged actually occurred is not required.” As de Montigny J.A. pointed out in Jensen, at para. 83, Rothstein J.’s comments were made in response to the argument that the plaintiff was required to prove that it had met the some-basis-in-fact standard on a balance of probabilities. Thus, when read in context, Rothstein J.’s comments merely reaffirmed that the some-basis-in-fact standard does not equate with a balance of probabilities test, as opposed to suggesting that a conspiracy claim lacking any evidentiary foundation should nevertheless be certified as a class proceeding.
[77] I therefore conclude that the motion judge did not err in requiring the appellant to provide some minimal evidence in support of the existence of the alleged conspiracy as part of his consideration of whether the plaintiff had satisfied the some-basis-in-fact criterion.
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[79] The motion judge properly applied the some-basis-in-fact standard in making these findings and they are entitled to deference. The appellant has identified no palpable and overriding error in his findings, but merely asks this court to substitute our own analysis of the evidence for that of the motion judge. I would therefore reject this ground of appeal. . Palmer v. Teva Canada Limited
In Palmer v. Teva Canada Limited (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal against a lower court dismissal of a class action certification motion.
In a class action for contaminated drugs, the court considered the certification issue of 'commonality' [CPA 5(1)(c)]:[103] Substantial deference is owed to the motion judge’s application of the test for certification and his determination of the common issues and preferability. On such questions, appellate court intervention should be restricted to matters of general principle: Fehr v. Sun Life Assurance Company of Canada, 2018 ONCA 718, 84 C.C.L.I. (5th) 124, at para. 39, leave to appeal refused, [2018] S.C.C.A. No. 489.
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2) Common Issues Criterion
[110] An issue will be common “only where its resolution is necessary to the resolution of each class member’s claim.” In other words, it “will not be ‘common’ in the requisite sense unless the issue is a ‘substantial…ingredient’ of each of the class members’ claims”: Hollick, at para. 18.
[111] For a claim to be certified, there must be a “methodology” through which the common issue may plausibly be proven at trial. As Rothstein J. explained in Pro‑Sys Consultants, at para. 118: “This means that the methodology must offer a realistic prospect of establishing loss on a class-wide basis so that, if the [head of damage] is eventually established at the trial of the common issues, there is a means by which to demonstrate that it is common to the class.”
[112] The appellants contend that the motion judge erred by failing to consider whether the immediate psychological distress experienced by some class members upon the revelation of the contamination met the definition of a common issue.
[113] The motion judge committed no such error. Although he dismissed the claim for psychological distress for failing to disclose a viable cause of action, he went on to consider whether the damages for psychological harm would be certifiable as a common issue. He concluded that there was not a common issue because the plaintiffs had failed to show some basis in fact to meet this criterion.
[114] Given the nature of the claims advanced here, it is apparent that the assessment of psychological damages requires proof of the harm suffered by the individual class members because the claims are inherently individual in nature and idiosyncratic: Healey, at para. 71.
[115] Claims for psychological harm are often individual: a claimant must prove mental distress that is serious, prolonged, and rises above the ordinary annoyances, anxieties, and fears of life. At most, the motion judge found that the evidence of the psychological effect of the recall caused a minority of the class to have suffered the upsets and anxieties that would be compensable under tort law. Accordingly, as the motion judge found, “the hard work remains for individual issues trials and the common issues trial is of marginal utility.” I see no error in this conclusion.
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[121] Having reviewed this evidence, I see no error in the motion judge’s conclusion that the plaintiffs failed to meet the “some basis in fact” threshold to show commonality. Even had I not concluded there was no viable cause of action in relation to psychological harm, the plaintiffs’ claim for psychological harm damages is not certifiable because it does not meet the common issue criteria. . David v. Loblaw Companies Limited
In David v. Loblaw Companies Limited (Div Court, 2024) the Divisional Court considered (and dismissed) an appeal of a case conference order that 'settled' terms of a larger class action certification order, here grounded in Competition Act law.
Here, the lower court (upheld on appeal) walks-through the CPA s.5(1)(c) ['claims or defences of the class members raise common issues'] element:[20] The applicable principles for assessing whether the claims of the class members raised common issues as required by s. 5(1)(c) of the CPA, were outlined in Hodge v. Neinstein, 2017 ONCA 494, 136 OR (3d) 81, at paras. 111-112, by Hoy A.C.J.O.:111 The underlying commonality question is whether allowing a proceeding to continue as a class proceeding will avoid duplication of fact-finding or legal analysis: Western Canadian Shopping Centres Inc. v. Dutton, [2001] 2 S.C.R. 534 (S.C.C.), [2000] S.C.J. No. 63, 2001 SCC 46, at para. 39; Pro-Sys, at para. 108.
112 The court went on, at para. 108 of Pro-Sys, to list the balance of the instructions found at paras. 39-40 of Dutton as to how to approach the common issues inquiry:
(1) The commonality question should be approached purposively.
(2) An issue will be “common” only where its resolution is necessary to the resolution of each class member's claim.
(3) It is not essential that the class members be identically situated vis-à-vis the opposing party.
(4) It not necessary that common issues predominate over non-common issues. However, the class members' claims must share a substantial common ingredient to justify a class action. The court will examine the significance of the common issues in relation to individual issues.
(5) Success for one class member must mean success for all. All members of the class must benefit from the successful prosecution of the action, although not necessarily to the same extent.
113 At the certification stage, the factual evidence goes only to establishing whether the questions are common to all the class members: Pro-Sys, at para. 110. While there must be “some basis in fact” that the issues are common, the test “does not require that the court resolve conflicting facts and evidence at the certification stage”, which the court is ill equipped to do at that stage: Pro-Sys, at para. 102.
114 Even a significant level of difference among the class members does not preclude a finding of commonality. If material differences do emerge, the court can deal with them at that time: Pro-Sys, at para. 112; Dutton, at para. 54.
115 An appellate court owes considerable deference to a certification judge’s commonality analysis, and “should restrict its intervention to matters of general principle”: Markson v. MBNA Canada Bank (2007), 85 O.R. (3d) 321 (Ont. C.A.), [2007] O.J. No. 1684, 2007 ONCA 334, at para. 33. [21] In addressing whether the claims of the proposed class of plaintiffs raise common issues under s. 5(1)(c) of the CPA, the motions judge stated, at paras. 69-71:69 In Western Canadian Shopping Centres Inc v Dutton, 2001 SCC 46 (CanLII), [2001] 2 SCR 534, at para 39, the Supreme Court explained that in a certification motion, “[t]he underlying question is whether allowing the suit to proceed as a [class proceeding] will avoid duplication of fact-finding or legal analysis”. From this foundation point, it follows that while class members need not all be situated identically vis-à-vis the Defendants, a “common issue” is one which “is necessary to the resolution of each class member’s claim” Ibid.
70 Further, the Court must be satisfied that the evidence tendered in support of the Plaintiffs' claims demonstrates that there is at least some basis in fact for the proposed common issues: Hollick v. Toronto (City), 2001 SCC 68 (CanLII), [2001] 3 SCR 158, at para 25. This assessment entails something more than "a bare assertion in the pleadings" that the common issues have evidentiary support: Fulawka v. Bank of Nova Scotia, 2012 ONCA 443 at para. 79. As the Divisional Court has explained: "some factual basis - in the form of admissible evidence - to support the allegation[s]", without which, the "gatekeeping function of the court would be effectively neutered": Williams v. Canon Canada Inc., 2012 ONSC 3692, at para 23.
71 Thus, section 5(1)(c) requires a two-step inquiry as to whether proposed common issues actually exist and, if so, can be answered in common across the Class. This is not a particularly high standard, but it is one that nevertheless requires the Court to move beyond mere “symbolic scrutiny”: Lin v. Airbnb, Inc., 2019 FC 1563, at para 33. As my colleague Perell J. stated in Kuiper v. Cook (Canada) Inc., 2018 ONSC 6487, at para 134, rev’d in part on other grounds, 2018 ONSC 6487 (Div Ct), “while the standard is low, it is not subterranean.” It is the Defendants’ primary contention in this certification motion that the evidentiary record does not meet the requisite standard.
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