Justice Perell recently engaged in the first fulsome analysis of the new preferability criteria under s. 5(1.1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 ("CPA") in Banman v. Ontario, 2023 ONSC 6187. The new subsection adds that a class action will be the preferable procedure for the resolution of common issues only if, at a minimum: (a) it is “superior” to all reasonably available means of determining the entitlement of the class members to relief or addressing the impugned conduct of the defendant, and (b) the common issues “predominate” over individual ones.
Justice Perell confirmed that s. 5(1.1) imposes a stricter test by adding these conditions, but questioned: “how much stricter”? While the reasons do not specifically answer that question, they provide assistance for certification motions in future class actions, on the same established principles that existed before s. 5(1.1) came into force.
The case concerns the Psychosocial Treatment Unit of the St. Thomas Psychiatric Hospital. The plaintiffs allege that patients of the program suffered physical, sexual, and psychiatric abuse, including torturous punishment and illegal seclusion. A group of these patients (118 of the 429) were also part of a smaller program within the unit, which bore the same name and resemblances to one of the programs at issue in Barker v. Barker, 2020 ONSC 3746.
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