Can a single common issue justify the authorization of a class action in Québec? Yes, according to CDDM c. Centre hospitalier régional du Suroît du Centre de santé et des services sociaux du Suroît, 2011 QCCA 826 (available in French only), but only if that issue furthers the claims of the class members in a meaningful way.
The Collectif de défense des droits de la Montérégie (Collectif) alleged that the Centre hospitalier du Suroît (Centre), between June 2005 and June 2008, had violated the rights of all mental health patients by encouraging, tolerating or allowing the automatic imposition of isolation and restraint measures on them, without first assessing whether it was necessary to protect either the patients or third parties. This practice was supposedly a violation of section 118.1 of an Act Respecting Health Services and Social Services (Act):
Force, isolation, mechanical means or chemicals may not be used to place a person under control in an installation maintained by an institution except to prevent the person from inflicting harm upon himself or others. The use of such means must be minimal and resorted to only exceptionally, and must be appropriate having regard to the person's physical and mental state. […]
In support of their allegations, the class members referred to reports written by the Québec Ombudsman relating to some complaints about the care given to mental health patients by the Centre. The reports recognized the existence of automatic restraint and isolation measures imposed by the Centre, as well as, an institutional culture that was in violation of the Act.
The Decisions in First Instance and Appeal
The Québec Court of Appeal (Court) overturned the Superior Court decision and authorized a class action against the Centre.
The Motion to Institute a Class Action (Motion) was brought on behalf of all mental health patients of the Centre who were subjected to isolation and restraint measures from June 11, 2005, to June 11, 2008. The Motion alleged that the protocols and practices employed at the time caused damage to the class members in the form of physical and psychological harm. Moreover, these protocols and practices allegedly breached the patients’ fundamental rights.
The Superior Court had previously decided that there were no common issues to bind the class members together. According to the Superior Court, it was impossible to conclude that all mental health patients who were subject to restraint and isolation measures were treated abusively. On the contrary, some of the patients were dangerous to themselves or third parties. The treatment they received was therefore appropriate and justified under the circumstances.
The real question was whether the class action raised identical, similar or related questions of fact since it was acknowledged that it already raised similar questions of law. According to the Superior Court, a hearing would have to be held with respect to each class member to determine whether he or she was subject to unjustified isolation and restraint measures. Practically speaking, such a process was ill-suited to class proceedings since the success or failure of the representative of the class action would not further or hinder the claims of the other persons likely to be affected by the Motion.
In reaching its decision, the Court of Appeal primarily focused on whether the class action raised common issues. The Court reiterated that the three objectives of a class action are judicial economy, access to justice and behaviour modification. Yet it also explained that the objective of judicial economy can only be achieved if the determination of the common issues is likely to significantly further the individual actions of each member.
According to the Court, the presence of only one identical, similar or related question is sufficient to satisfy article 1003 a) of the Code of Civil Procedure if it is not immaterial to the outcome of the action. The question does not have to be decisive to the outcome. It is enough that it furthers the claims without requiring a repetition of the judicial analysis. It is possible that the determination of the common issues will not resolve the litigation completely, but may give rise to smaller cases at the recovery stage of the claims process.
The Court concluded that the questions could be rephrased to satisfy article 1003 a):
- Do the protocols and customs relating to isolation and restraint measures in force at the Centre between June 2005 and June 2008 contravene article 118.1 of An Act Respecting Health Services and Social Services?
- If so, what is the responsibility of the Centre with respect to the class members?
It follows that if the judge who hears the case concludes that the protocols and practices were compliant with the patients’ rights, the proceeding will end there. If, however, the judge reaches the opposite conclusion, he or she will have to specify in which cases and to what extent the Centre and the other respondents can be held liable. Afterwards, the class members will only have to provide evidence as to how many times and under which circumstances they were subjected to unjustified isolation and restraint measures. At this final stage, the class members will benefit from a presumption of fault, stemming from the prejudicial protocols or practices in question, and it will remain the respondent’s burden to make full answer and defence.
For these reasons, the Court reversed the judgment in first instance and authorized the class action against the Centre and the other respondents.
McCarthy Tétrault Notes
Although the Court of Appeal held in Citoyens pour une qualité de vie c. Aéroports de Montréal, 2004 Can LII 48024, that the common issues cannot be drowned in a sea of individual issues, the CDDM case has refined this analysis. Rather than approach common issues quantitatively, the decision suggests a qualitative assessment. According to the decision, a single common issue can suffice in some instances if it is significant enough to move the litigation forward in a meaningful way.