COURT OF APPEAL FOR ONTARIO

CITATION: Stolove v. Waypoint Centre for Mental Health Care, 2025 ONCA 376

DATE: 20250521

DOCKET: COA-24-CV-0858

Sossin, Monahan and Madsen JJ.A.

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 (Appellants)

and

Waypoint Centre for Mental Health Care, Carol Lambie, Rob Desroches, Linda Adams and His Majesty the King in Right of Ontario

Defendants (Respondents)

Golnaz Nayerahmadi, Joel P. Rochon and Pritpal Mann, for the appellants

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

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

Heard: April 22, 2025

On appeal from the order of Justice Paul M. Perell of the Superior Court of Justice, dated June 25, 2024, with reasons reported at 2024 ONSC 3639 and reasons for costs reported at 2024 ONSC 4558.

Monahan J.A.:

OVERVIEW

[1]          The appellants appeal 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 (the “Hospital”).

[2]          The appellants allege that the respondents have systematically subjected patients at the Hospital to excessive, punitive, and arbitrary use of seclusion and restraint, amounting to solitary confinement. The appellants claim that not only does this conduct violate their common law, statutory and Charter rights, it is contrary to internationally recognized norms against torture and cruel, inhuman or degrading treatment.

[3]          The motion judge held that some of the putative class members have individual causes of action against the respondents. However, the proposed class action failed to satisfy the “common issues” criterion under s. 5(1)(c) of the Class Proceedings Act, 1992, S.O. 1992, c. 6, since there is no basis in fact for systematic wrongdoing by the respondents, which is the linchpin of an institutional abuse class action. Moreover, given the absence of any common issues, it necessarily followed that a class proceeding was not an appropriate method to resolve the class members’ claims and, in any event, joinder actions by those putative class members who have individual claims against the respondents would be a preferable procedure. The motion judge further found that the proposed class proceeding did not disclose viable causes of action against the respondents Carol Lambie, Rob Desroches and Linda Adams (the “Individual Respondents”) since the claim failed to plead any material facts that could give rise to personal liability on their part.

[4]          The motion judge dismissed the certification motion and awarded partial indemnity costs of $1,170,000 to Waypoint and the Individual Respondents collectively, and partial indemnity costs of $735,000 to Ontario.

[5]          A central part of the motion judge’s reasoning was the fact that the decision to restrain or seclude a patient may in certain circumstances be legally appropriate and even necessary in order to protect the patient or other persons. Thus, a determination of whether the use of seclusion or restraint was justified in a particular instance could only be made on the basis of an assessment of that patient’s individual circumstances at the time, including their mental health, medications, presenting behaviour, and a clinical assessment of risk of harm. The motion judge found that such an assessment is inherently individualistic and there was thus no basis in fact for concluding that there were common issues that would make a common issues trial worthwhile.

[6]          The appellants argue that the motion judge erred in his commonality analysis in the following three respects:

i)             by misconstruing the elements of a claim for systemic wrongdoing as requiring a uniform set of circumstances or categorical breaches by the respondents;

ii)           by erroneously determining that the relevant standard of care is settled; and

iii)          by exceeding his jurisdiction on certification and making merits determinations in the face of conflicting evidence.

[7]          The appellants further argue that the motion judge made two additional errors: first, by finding that a joinder action was preferable to a class proceeding in the absence of any evidence to support this finding; and second, by dismissing the negligence claims against the Individual Respondents by failing to consider that they owed the members of the proposed class a stand-alone duty of care as Hospital administrators.

[8]          The appellants also seek leave to appeal the motion judge’s costs order on the basis that it is an unprecedented and unparalleled departure from costs awards in similar systemic abuse cases and will have a chilling effect on access to justice for marginalized members of society.

[9]          For the reasons that follow, I conclude that the motion judge did not commit a reversible error in his commonality analysis, nor did he err in dismissing the claims brought against the Individual Respondents. These conclusions are sufficient to dispose of the appeal. While I would grant leave to appeal the costs order, I would deny the costs appeal.

BACKGROUND

(1)         The Hospital

[10]       The Hospital is a forensic psychiatric hospital currently operated by the respondent Waypoint Centre for Mental Health Care (“Waypoint”) pursuant to the Public Hospitals Act, R.S.O. 1990, c. P.40 and the Not-for-Profit Corporations Act, 2010, S.O. 2010, c. 15. The Hospital provides care for patients with serious mental illnesses who have been involuntarily admitted to a psychiatric facility. Prior to December 15, 2008, the Hospital was directly operated by the Ministry of Health and Long-Term Care on behalf of the respondent His Majesty the King in Right of Ontario (“Ontario”), at which point it was divested to Waypoint. The Individual Respondents are current or former officers of the Hospital.

[11]       There is an elaborate and highly regulated statutory scheme governing the lawful detainment of involuntary patients with mental illnesses in Ontario, including the Health Care Consent Act, 1996, S.O. 1996, c. 2, Sched. A (the “HCCA”), the Substitute Decisions Act, 1992, S.O. 1992, c. 30, the Mental Health Act, R.S.O 1990, c. M.7, and Part XX.1 (Mental Disorder) of the Criminal Code, R.S.C. 1985, c. C-46. In accordance with this statutory scheme, there are two types of involuntary admissions to the Hospital: (a) patients who are involuntarily admitted pursuant to the Mental Health Act; and (b) involuntary forensic patients admitted pursuant to the administration of the criminal law process, including persons who have been found unfit to stand trial or found not criminally responsible (“NCR”) pursuant to the Criminal Code.

[12]       The Hospital’s patients include some of the most ill and difficult to treat 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, in accordance with procedures and requirements set out in the Mental Health Act or the Criminal Code. There are currently approximately 315 in-patient beds at the Hospital.

[13]       There is no dispute that the magnitude of the security and safety challenges at the Hospital are significant. For example, 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 by other patients with weapons, and have been stabbed, bitten, punched, kicked, urinated and spat upon, and smeared with feces.

(2)         The use of restraint and the “least restraint principle”

[14]       Restraint refers to the application of physical, mechanical, or chemical controls on a patient in order to prevent serious bodily harm to the person or to others. Restraint includes seclusion, namely, the placement of a patient in a locked room to prevent or minimize bodily harm.

[15]       The Mental Health Act provides that psychiatric hospitals may only restrain a patient in accordance with the least restraint principle, defined in s. 1(1) as placing a person 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” (the “Least Restraint Principle”). Similarly, s. 7 of the HCCA recognizes a 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.”

[16]       According to the evidence, the Least Restraint Principle requires that: (a) seclusion or restraint be used 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 (c) seclusion or restraint is used for the shortest possible duration and is discontinued once there is no longer an imminent risk of serious bodily harm.

THE CLAIM

[17]       The appellants seek certification as representative plaintiffs in a class proceeding brought on behalf of: (a) all persons who were confined and/or restrained at Waypoint since January 1, 2000 (the “Class Period”); and (b) all persons who, on account of a personal relationship to a person who was subject to confinement or restraint at Waypoint during the Class Period, are entitled to assert a derivative claim for damages pursuant to s. 61(1) of the Family Law Act, R.S.O. 1990, c. F.3 (the “FLA”). The appellants are or were patients at Waypoint during the Class Period, or are family members with a derivative claim for damages pursuant to the FLA.

[18]       The appellants allege that throughout the Class Period, patients at the Hospital have routinely been subjected to the prolonged use of seclusion and restraint for arbitrary and punitive reasons. They assert that patients are locked up 22 to 24 hours per day without social or physical stimulation and without daily relief from seclusion. The appellants claim that such treatment is virtually identical to the conditions of solitary confinement or administrative segregation practised in correctional facilities. They allege that solitary confinement has been abused at the Hospital as a means of punishment and behaviour management without regard to the serious harm that it causes to patients subjected to such mistreatment. In support of these allegations, the appellants tendered affidavits from the proposed representative plaintiffs as well as from preeminent experts in forensic psychiatry, with the experts opining that confinement as systematically practised at the Hospital did not meet accepted national and international standards of care with respect to the use of medical seclusion.

[19]       The appellants claim that as a result of such abusive and unlawful conduct, the respondents are liable in negligence, breach of fiduciary duty, and breach of ss. 7 and 12 of the Canadian Charter of Rights and Freedoms. They seek general damages of $125 million and punitive damages of $75 million.

THE CERTIFICATION DECISION

(1)         Overview

[20]       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. 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. 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.

[21]       The motion judge stated that 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. The some-basis-in-fact standard sets a low evidentiary bar for plaintiffs, and a court should not resolve conflicting facts and evidence at the certification stage.

[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.

(2)         The cause of action criterion

[23]       The motion judge identified the applicable legal test on this issue as whether, assuming the facts pleaded to be true, there is a reasonable prospect that the claim will succeed. The claim must be read generously, and it will be unsatisfactory only if it is plain and obvious and beyond a reasonable doubt that the plaintiff cannot succeed: Cloud v. Canada (Attorney General) (2004), 73 O.R. (3d) 401 (C.A.), at para. 41, leave to appeal refused, [2005] S.C.C.A. No. 50.

[24]       Based on this legal test, the motion judge found that the appellants’ claims against Waypoint and Ontario for negligence, breach of fiduciary duty and breach of the Charter satisfied the “cause of action” criterion. However, the appellants’ claim failed to plead viable causes of action against the Individual Respondents.

[25]       The motion judge reached this latter conclusion on the basis that officers and employees of companies are generally protected from personal liability unless it can be shown that their actions are themselves tortious or exhibit a separate identity or interest from that of the corporation so as to make the impugned conduct their own: ADGA Systems International Ltd. v. Valcom Ltd. (1999), 43 O.R. (3d) 101 (C.A.), at p. 107, leave to appeal refused, [1999] S.C.C.A. 124; ScotiaMcLeod Inc. v. Peoples Jewellers Ltd. (1995), 26 O.R. (3d) 481 (C.A.), at pp. 490-91, leave to appeal refused, [1996] S.C.C.A. No. 40. Moreover, officers, directors or senior management of a corporation should not be joined for tactical or leverage purposes in the litigation process.

[26]       The motion judge found that there were no allegations of conduct by the Individual Respondents that were themselves tortious or that exhibited a separate identity or interest from that of Waypoint. The Individual Respondents had no relationship with the appellants other than as the human agency of Waypoint. Nor had it been pleaded that the Individual Respondents were involved in fraudulent or dishonest behaviour, or that they participated in or knew that Waypoint had breached its duties to the appellants. Accordingly, it was plain and obvious that there was no viable cause of action against the Individual Respondents.

(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) 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.

…

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.

(4)         Preferable procedure criterion

[35]       The motion judge observed that if the claim did not raise common issues, it was axiomatic that a class proceeding could not be the preferable procedure for resolving the matters raised by the litigation.

[36]       The motion judge nevertheless considered whether, in the event that he had erred in his analysis of commonality, a class proceeding would be an appropriate method of advancing the claims of the class members. He found that even on this hypothesis, a class proceeding would not be the preferable procedure. Rather, a joinder action of the involuntary forensic patients who have individual claims against the respondents would be preferable because such an action would immediately provide access to justice without the need to “run the gauntlet” of a certification motion. He noted that there was an already assembled “critical mass” of co-plaintiffs that would make the case attractive to an entrepreneurial lawyer. On this assumption, the motion judge found that a joinder action would provide as much if not more access to justice, behaviour modification and judicial economy as would a class proceeding that would inevitably require individual issues trials. He therefore concluded that a joinder action would be preferable to a class proceeding and found that the appellants had not satisfied this element of the certification criteria.

(5)         Other certification criteria

[37]       The motion judge found that the proposed class action did or could satisfy both the class definition and representative plaintiff criteria. No appeal is taken with respect to these findings which need not be considered further.

STANDARD OF REVIEW

[38]       Decisions of motion judges on certification motions are generally entitled to substantial deference. The judges hearing these motions have developed a special expertise such that this court’s intervention should be restricted to matters of general principle: Fehr v. 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; Pearson v. Inco. Ltd. (2005), 78 O.R. (3d) 641 (C.A.), at para. 43, leave to appeal refused, [2006] S.C.C.A. No. 1.

[39]       Thus, while the identification of the necessary elements of the pleaded cause of action is a question of law reviewable on a standard of correctness, the assessment of whether the pleaded material facts actually support those causes of action is a question of mixed fact and law reviewable on a standard of palpable and overriding error: Lilleyman v. Bumble Bee Foods LLC, 2024 ONCA 606, 173 O.R. (3d) 682, at para. 36, leave to appeal refused, [2024] S.C.C.A. No. 406; PMC York Properties Inc. v. Siudak, 2022 ONCA 635, 473 D.L.R. (4th) 136, at para. 29, leave to appeal refused, [2022] S.C.C.A. No. 407; and Jensen v. Samsung Electronics Co. Ltd., 2023 FCA 89, 482 D.L.R. (4th) 504, at para. 43, leave to appeal refused, [2023] S.C.C.A. No. 260.

[40]       Similarly, the identification of the correct legal test for determining whether there is “some basis in fact” for the proposed common issues is subject to review on a correctness standard, while the determination of whether the evidence adduced satisfies that test is a question of mixed fact and law that should not be disturbed absent a palpable and overriding error: Lilleyman, at para. 37; Palmer v. Teva, 2024 ONCA 220, 495 D.L.R. (4th) 151, at para. 103; and Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295, at para. 94. Decisions of certification motion judges on preferable procedure are entitled to special deference because they involve weighing and balancing a number of factors, and the exercise of broad discretion: Pearson, at para. 43.

ANALYSIS

(1)         The motion judge properly held that the appellants’ claim did not raise common issues

[41]       The appellants argue that the motion judge made three critical errors in his commonality analysis: first, by misconstruing the elements of a claim in systemic wrongdoing and failing to consider whether the respondents’ policies and practices exposed class members to a common risk of harm; second, by erroneously determining that the relevant standard of care was settled; and third, by making merits determinations in the face of conflicting evidence. I consider each of these alleged errors below.

(a)         The motion judge did not misconstrue the elements of a claim for systemic wrongdoing

(i)           The alleged errors

[42]       The appellants argue that the motion judge misconstrued the elements of a claim in systemic wrongdoing in several respects. They argue that all that is required to satisfy the “common issues” criteria is to show that the respondents established or maintained a system that exposed class members to a common risk of harm or failed to prevent abuses of seclusion. Rather than focus on evidence of the respondents’ general conduct, the motion judge erroneously focused his commonality analysis on the class members’ individual circumstances. He compounded this error by requiring that the experiences of harm amongst individual class members be uniform or identical.

[43]       The appellants point out that class actions involving systemic wrongdoing are routinely certified despite considerable variations in the experiences of class members. This includes systemic claims arising from the operation of residential schools (see Cloud); schools for children with special needs (see Rumley v. British Columbia, 2001 SCC 69, [2001] 3 S.C.R. 184); or psychiatric hospitals (see Banman v. Ontario, 2023 ONSC 6187).

[44]       The appellants further dispute the motion judge’s statement that they conceded that the Hospital’s policies and procedures were “excellent on paper”. They argue that many patients have individual treatment or management plans, including plans for “crisis prevention”, that provide for the use of restraint or seclusion without proper regard to the Least Restraint Principle. The appellants further argue that, even if Hospital policies correctly incorporated the Least Restraint Principle, the policies were systematically breached.

(ii)         The motion judge correctly understood the legal test for determining commonality

[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.

(iii)        The motion judge did not commit a palpable or overriding error in finding that the Hospital’s policies and procedures on the use of restraint are consistent with the Least Restraint Principle

[47]       As described above, the motion judge reviewed the Hospital’s policies and procedures on the use of restraint and seclusion and found that they appropriately incorporated and reflected the Least Restraint Principle. There is ample evidence in the record supporting the motion judge’s analysis and findings in this regard. For example, the Hospital describes its policy on the use of restraint as follows:

Waypoint Centre for Mental Health Care supports a recovery oriented approach to patient care and treatment and a least restraint philosophy. In accordance with the Mental Health Act (MHA) and Waypoint’s common law duty to protect patients, visitors and Staff, the use of restraint or seclusion may be used, without the consent of the patient or patient’s substitute decision-maker (SDM), if immediately necessary to prevent serious bodily harm to the patient or to another person. This may also be referred to as “common law” or “emergency” restraint.

[48]       The Hospital’s policies also acknowledge that the use of restraint and seclusion frequently results in adverse physical, emotional and psychological outcomes for all individuals involved, including patients and staff. For this reason, the benefits of using restraints must outweigh the potential risks in each individual case. The Hospital states that it adopts a “trauma informed care approach” in which alternate plans are identified in advance to minimize the need to use emergency restraints, which must be used “in alignment with evidence-based care.” The commitment to the Least Restraint Principle is reflected in the following mandatory requirements:

When restraint or seclusion are used, they must only be used as a last resort, in situations where a patient presents an immediate risk of serious bodily harm to self or others. Restraint may only be used after all alternatives, less restrictive measures and de-escalation strategies have been considered or implemented and assessed as ineffective.

…

Restraint and seclusion shall be used for the shortest possible duration based on regular clinical assessments as necessary to meet the safely and patient’s needs.

[49]       There are extensive procedures and protocols that must be followed whenever restraint or seclusion is utilized, with a view to ensuring that this commitment to the Least Restraint Principle is implemented in practice. This includes requirements for extensive documentation setting out the basis for the use of restraint; internal and external review of emergency restraint events; and mandatory training and education for staff on the use of restraint and seclusion.

[50]       As noted above, the appellants argue that the motion judge erred in his analysis of the Hospital’s policies by failing to consider that many patients have individual treatment plans, including crisis prevention plans, that fail to properly incorporate the Least Restraint Principle. The appellants are correct to point out that the motion judge made only passing reference to crisis prevention plans, noting that the degree to which such plans govern the use of restraints was a “controversial and contested matter”. The motion judge made no further reference to this issue in his discussion of the “common issues” criteria.

[51]       While it might have been preferable for the motion judge to have expressly discussed these plans in his discussion of commonality, I see no palpable or overriding error in his failure to do so. The Hospital policies governing the development of individual treatment plans, including crisis prevention plans, include collaboration with the patient or substitute decision-maker, and such plans must demonstrate “an approach that is underpinned by the principles of respect and recovery” and be based on “an individualized assessment of the patient’s needs.”[2] Moreover, individual treatment plans must comply with the limitations on the use of restraint as set out in the MHA and the Hospital’s overall policy on the use of restraints, both of which incorporate the Least Restraint Principle.[3] Even assuming there are instances in which individual treatment plans have failed to meet that standard, these would constitute individual rather than systemic wrongdoing which could only be identified through individual issues trials. Thus, such instances would not contradict or undermine the motion judge’s finding that the appellants’ claim lacks commonality.

[52]       I therefore conclude that the motion judge did not make a palpable or overriding error in finding that the Hospital’s policies on the use of restraint are consistent with the Least Restraint Principle.[4]

(iv)        The motion judge did not erroneously require that the experiences of harm by class members be identical

[53]       At certain points in his commonality analysis, the motion judge observed that a decision to restrain a patient was not based on a “uniform practice”, or, alternatively, that the experiences of class members were not “uniformly experienced”. The appellants argue that these statements reflect an erroneous assumption that a class proceeding can only be certified if the experiences of class members are identical. They point out that there are numerous class proceedings alleging systemic wrongdoing that have been successfully certified despite differences in the circumstances and experiences of class members.

[54]       The motion judge’s reasons must be read in context and as a whole. When that is done, it is evident that the motion judge did not mistakenly require that experiences of harm among class members be uniform or identical before the proceeding could be certified as a class action. In fact, he expressly acknowledges that the common issues criterion “presents a low bar”, and notes that a proceeding may disclose common issues even where the experiences of class members differ significantly:

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. Even a significant level of individuality does not preclude a finding of commonality. 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.

[55]       When read in context and with deference, the motion judge’s references to the lack of a “uniform practice” or “uniform experience of harm” is merely a restatement of his overall conclusion that there is no class-wide, predicate instance of wrongdoing that would make a common issues trial worthwhile. Instead, any wrongful use of restraint or seclusion can only be identified through individualized assessments conducted at individual issues trials. I am fortified in this understanding of the motion judge’s reasons by the fact that he has himself in the recent past certified class proceedings in cases relied upon by the appellants in which there were significant differences in the experiences of class members.[5]

(v)         The motion judge did not focus only on the experiences of class members while ignoring the conduct of the respondents

[56]       The appellants argue that in a claim for systemic wrongdoing, the focus of the commonality analysis must be on the conduct of the respondents and, in particular, on whether the respondents’ systems, policies or practices exposed class members to a common risk of harm or failed to prevent abuse. They argue that the motion judge failed to consider the conduct of the respondent and focused, instead, on the experiences of class members. The appellants rely on cases such as Rumley, Cloud, and Banman, as supporting their position.

[57]       I would not accede to this objection, for two reasons.

[58]       First, it is evident that the motion judge did not focus only on the experiences of putative class members while ignoring the conduct of the respondents. As described earlier, he undertook a detailed review and analysis of the Hospital’s policies and procedures, finding them to be consistent with the Least Restraint Principle. He also agreed that the appellants had provided prima facie evidence that the respondents had inappropriately used restraint and seclusion in a “not inconsiderable number of cases”. But, at the risk of undue repetition, the motion judge found that this was insufficient to satisfy the common issues criterion simply because there was no evidence that these instances of culpable seclusion had resulted from a generalized policy or systemic breach.

[59]       Second, the cases relied upon by the appellants reinforce rather than contradict the motion judge’s common issues analysis. For example, in Rumley, the plaintiffs sought to certify a class action for students with disabilities who had been sexually and physically abused at a residential school operated by the province of British Columbia. The Supreme Court of Canada found that the claim satisfied the common issues criteria because the respondents alleged that the school did not have policies in place to deal with abuse and had negligently placed all residential students in one dormitory. The court in Rumley pointed out that “[t]hese are actions (or omissions) whose reasonability can be determined without reference to the circumstances of any individual class member”: at para. 30. As reflected in the analysis of the motion judge, the contrary is true here.

[60]       Cloud involved a claim brought on behalf of former students at a residential school for Indigenous children. This court found that the claim met the commonality requirement because a significant part of the claim of every class member focused on the allegation that the school created “an atmosphere of fear, intimidation and brutality that all students suffered and hardship that harmed all students”: at para. 66. Moreover, the claim alleged that the school’s very purpose was to eradicate the Indigenous culture of the students and that this purpose breached legal duties owed to all class members. These allegations focused on the management and operation of the school in general and could be determined on a class-wide basis.

[61]       In Banman, an action brought against Ontario on behalf of former patients in the forensic psychiatric unit at St. Thomas Psychiatric Hospital was certified on the basis of alleged system-wide wrongdoing on the part of the hospital by, for example, inappropriately delegating treatment decisions to “patient-teachers”. At the same time, the proposed Charter issues were not certified since they could only be determined on an individual basis and thus lacked commonality: see Banman, at paras. 289-93.[6]

[62]       In short, the cases relied upon by the appellants all involved allegations of class-wide or systemic wrongdoing, matters which could be resolved without reference to the circumstances of individual class members and yet whose resolution would advance the litigation in common across the entire class. As the motion judge correctly pointed out, there are no such common issues present in the current proceeding.

[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.

[65]       I therefore conclude that the motion judge did not misconstrue or misapply the elements of a claim for systemic wrongdoing.

(b)         The motion judge did not commit a palpable and overriding error by stating that the duty of care owed by a psychiatric hospital is a “settled question”

[66]       The appellants take issue with the motion judge’s statement at paragraph 374 of his reasons that the standard of the duty of care owed by a psychiatric hospital is a “settled question”. They argue that the motion judge erred in this regard since the standards applicable to the use of restraint and seclusion at the Hospital are highly contentious and disputed.

[67]       Once again, the reasons of the motion judge must be read in context and as a whole. The impugned statement is found in a passage that reads as follows:

The answers to the questions of whether there is a duty of care owed by a psychiatric hospital and what is the standard of the duty of care are settled questions, 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 not be 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.

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 legal analysis at the inevitable individual issues trials. [Footnotes omitted].

[68]       When read in context, it is evident that in referring to the standard of the duty of care as being a “settled question”, the motion judge did not intend to suggest that there was no dispute over the use of seclusion and restraint at the Hospital. He was simply pointing out that the dispute was not over whether there was an applicable standard – namely, the Least Restraint Principle – but whether that standard had been appropriately followed in individual cases. This was little more than a restatement of his overall conclusion on commonality, and was not in error.

(c)         The motion judge did not overstep his jurisdiction by making factual and legal merits determinations in the face of conflicting evidence

[69]       The appellants argue that they tendered extensive evidence establishing that the respondents had abused the use seclusion and restraint as a behavioural management tool, contrary to the Least Restraint Principle. The appellants contend that the motion judge made legal and factual findings that were inconsistent with this evidence, which is an improper merits determination.

[70]       This objection is in substance a restatement of the appellants’ earlier arguments on commonality and thus can be dealt with briefly. The motion judge did not reject or ignore the appellants’ evidence. In fact, he agreed that the appellants established a prima facie case that there had been a significant number of instances in which the respondents failed to adhere to the Least Restraint Principle. But the motion judge concluded that all of the experts, including those retained by the appellants, agreed that such instances of wrongdoing could only be identified through a patient-by-patient analysis at individual issues trials. This included the expert evidence of Dr. John Bradford, who had worked at the Hospital and identified patients who had been inappropriately secluded or restrained. Yet even taken at its highest, his evidence did not allege or identify system-wide policies or procedures that had led to these instances in which restraint might have been wrongfully applied.

[71]       This is a finding of mixed fact and law that is entitled to deference, reflecting the motion judge’s analysis of a voluminous application record that ran to nearly 15,000 pages. For the reasons already explained, I see no palpable or overriding error in the motion judge’s findings in this regard and thus would not accede to this ground of appeal.

(2)         Since the motion judge correctly dismissed the application on grounds of commonality, it necessarily follows that a class proceeding does not satisfy the preferable procedure criterion

[72]       As the motion judge pointed out, on the assumption that there are no certifiable common issues disclosed by the proposed class action, it is axiomatic that it does not satisfy the preferable procedure criterion. While the motion judge proceeded, in obiter, to also find that a joinder action was preferable to a class proceeding, this discussion was superfluous and unnecessary in the circumstances of the case. Moreover, the extent to which the motion judge had the benefit of submissions from the parties on the option of joinder is unclear. I therefore would express no view on the motion judge’s alternative analysis of joinder as a preferable procedure.

(3)         The motion judge did not err in dismissing the negligence claims against the Individual Respondents

[73]       The appellants claim that the motion judge erred in dismissing the negligence claims against the Individual Respondents because they had a “stand-alone duty of care” to the putative class members, separate and apart from the Hospital’s duty of care.

[74]       I see no merit to this ground of appeal. It is settled law that allegations against officers and employees of the corporation must include material facts of their tortious conduct separate from that of the corporation. Absent allegations which warrant piercing the corporate veil, officers and employees of a corporation are protected from personal liability unless it can be shown that their actions are themselves tortious or exhibit a separate identity or interest from that of the corporation: see ADGA Systems, at p. 107; ScotiaMcLeod, at pp. 490-91.

[75]       The motion judge correctly identified the relevant principles applicable to liability of corporate representatives. He proceeded to find that the Amended Statement of Claim did not reveal any allegations of material facts of conduct by the Individual Respondents separate from that of Waypoint or separate from the duty of care or fiduciary duties owed by Waypoint to the patients at the Hospital.

[76]       The appellants have failed to identify any error in the motion judge’s findings. The Amended Statement of Claim contains generalized allegations to the effect that the Individual Respondents had knowledge of the manner in which restraints were used at the Hospital, or approved various policies or documents. There are no allegations of any specific conduct or involvement of the Respondents in the application of restraints to members of the class sufficient to give rise to personal liability.

[77]       Accordingly, the motion judge did not err in finding that it was plain and obvious that the claims against the Individual Respondents were bound to fail.

(4)         The motion judge did not err in the exercise of discretion in awarding costs

[78]       Costs awards are discretionary and owed considerable deference on appeal. A cost award should only be set aside where it reflects an error in principle or if it is plainly wrong: Hamilton v. Open Window Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 3, at para. 27. The overarching principles are fairness, proportionality and reasonableness: Boucher v. Public Accountants Counsel for the Province of Ontario (2004), 71 O.R. (3d) 291 (C.A.), at paras. 37-38; Barbour v. Bailey, 2016 ONCA 334, at para. 9. An important factor in awarding costs in class actions is the principle that the court should have regard to the underlying goals of the Class Proceedings Act, 1992, namely: (1) access to justice; (2) behaviour modification; and (3) judicial economy.

[79]       The appellants seek leave to appeal the costs award on the basis that it is grossly disproportionate to awards made in comparable cases, encourages over lawyering, and will have a chilling effect on class actions. They point out that the total costs of approximately $1.9 million in this case far exceeds costs awards in comparable certification motions such as Banman v. Ontario, 2023 ONSC 7187 ($675,000) and Cavanaugh v. Grenville Christian College, 2012 ONSC 4786 (approximately $300,000). They further argue that the respondents’ counsel spent exponentially more time and resources for each step leading up to certification and that senior lawyers spent time on tasks typically handled by junior counsel. They argue that this unprecedented costs award will have a chilling effect on access to justice and disincentivize class actions brought on behalf of marginalized groups, for whom a class action is the only feasible mechanism for pursuing access to justice.

[80]       While I would grant leave to appeal the costs award, I would dismiss the costs appeal.

[81]       As the motion judge pointed out, while costs awards should, if possible, reflect costs awards made in closely comparable cases, such comparisons will rarely provide firm guidance: Pearson v. Inco Ltd. (2006), 79 O.R. (3d) 427 (C.A.), at para. 13. The motion judge concluded that the comparators of Banman and Cavanaugh, costs awards that he himself made, were not helpful when other factors were properly taken into account. These factors included the legal and factual complexity of the case based on the claims made, rather than an artificial comparison of the number of affiants, the subject matter of the claim, or days spent arguing the motion.

[82]       The motion judge pointed out that the proposed class action was “factually and legally extraordinarily complex and correspondingly expensive to prosecute and defend.” The action involved civil law, criminal law, constitutional law, class action law, and various statutes governing psychiatric hospitals and the use of restraints. The appellants advanced at least ten causes of action that had difficult permutations depending upon whether the defendant was Waypoint or Ontario. The systemic negligence claim was not only very ambitious and challenging, it was complicated by the transfer of the ownership and operation of the Hospital midway through the Class Period.

[83]       The motion judge was well placed and equipped to assess the degree to which the costs awards in cases such as Banman and Cavanaugh were useful comparators. I see no basis to interfere with his exercise of discretion in this regard.

[84]       The motion judge also carefully considered the appellants’ claim that the respondents had over lawyered the certification motion. He found that the respondents did not commit more resources than necessary to fairly test and challenge the propriety of certifying the class proceeding. Nor did he agree that the respondents had allocated more work to senior lawyers than was necessary, pointing out that the hourly rates for appellants’ senior lawyers notably exceeded those of the respondents. In fact, had the appellants been the successful party at the certification motion, they could have submitted a partial indemnity claim for approximately $1.6 million, suggesting that they ought not to have been surprised by the magnitude of the costs incurred by the respondents.

[85]       Finally, the motion judge found that there was no merit to the appellants’ submission that such sizable costs awards would have a chilling effect on access to justice. He pointed out that counsel for Waypoint had already made over $600,000 in discounts and exclusions from its costs claim. The motion judge applied a further 10% reduction given the public interest in the prosecution and defence of the proposed class action, in accordance with s. 31 of the Class Proceedings Act, 1992, but found that no further discount was warranted.

[86]       In short, the motion judge considered the relevant principles in making his costs award. He held that proposed comparator cases were unhelpful and distinguishable. The costs he awarded reflected the overarching principles of reasonableness, fairness, and proportionality while also taking into account the public interest nature of litigation. His award of costs is presumptively entitled to deference and should only be overturned where he erred in principle or was clearly wrong. I see no such reversible error on his part and would dismiss the costs appeal.

[87]       For the reasons set out above, I would dismiss the appeal. In accordance with the agreement of the parties, the appellants shall pay costs to the respondents collectively in the amount of $90,000, on an all-inclusive basis.

Released: May 21, 2025 “L.S.”

“P.J. Monahan J.A.”

“I agree. Sossin J.A.”

“I agree. L. Madsen J.A.”