2011 QCCA 826, 2011 QCCA 826

Collectif de défense des droits de la Montérégie (CDDM) c. Centre hospitalier régional du Suroît du Centre de santé et de services sociaux du Suroît 2011 QCCA 826 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-020284-105 (760-06-000001-087) Sup. Ct. DATE: May 3, 2011 CORAM: THE HONOURABLE PIERRE J. DALPHOND, J.A. NICOLE DUVAL HESLER, J.A. NICHOLAS KASIRER, J.A. COLLECTIF DE DÉFENSE DES DROITS DE LA MONTÉRÉGIE (C.D.D.M.) APPELLANT – Applicant and class representative and LISE BROUARD and D. L. APPELLANTS – Co-applicants and class representatives v.

CENTRE HOSPITALIER RÉGIONAL DU SUROÎT DU CENTRE DE SANTÉ ET DES SERVICES SOCIAUX DU SUROÎT and ANDRÉ MONETTE, in his capacity as Director of the Service de la psychiatrie of the CSSS du Suroît and NORMAND KINGSLEY, in his capacity as Director of the Services professionnels of the CSSS du Suroît RESPONDENTS – Respondents JUDGMENT [ 1 ] The trial judge refused to authorize the class action proposed by the appellants, being of the opinion that the alleged facts stemmed from the medical procedure and were not capable in law of sustaining the findings sought against a hospital centre.

According to the judge, there was also an absence of common issues among the members of the proposed class. [ 2 ] For the reasons listed below, the Court finds that the proposed class action should be authorized.

BACKGROUND [ 3 ] The class that the appellants wanted to represent, comprised of about 480 people, is defined as follows in the motion presented to the trial judge: [ translation] All the persons suffering from a mental health problem, patients of the Centre hospitalier régional du Suroît in Valleyfield, [hereinafter the Centre], treated or evaluated at the emergency unit and/or psychiatric unit, who… were subjected to hospital practices… the imposition of physical restraints, chemical restraints and/or isolation measures, without presenting a risk of harm to themselves and/or others… from June 11, 2005 to June 11, 2008, as well as the persons who were unable in fact and in law to act prior to June 11, 2005. [ 4 ] In their factum, the appellants do not contest that the trial judge was right in finding that it was not worth authorizing the action for the period before June 11, 2005.

The class would therefore be reduced to about 240 people. During the hearing, the appellants proposed the definition below in order to respond to the arguments of the respondents and the Court’s questions: [ translation]

All mental health users, patients of the Centre hospitalier régional du Suroît in Valleyfield, who were subjected to isolation or restraint measures between June 11, 2005 and June 11, 2008, in violation of

section 118.1 of the Act respecting health services and social services . [ 5 ]

Section 118.1 of the Act respecting health services and social services , RSQ, c S-4.2 (the “Act”) provides as follows: 118.1. La force, l'isolement, tout moyen mécanique ou toute substance chimique ne peuvent être utilisés, comme mesure de contrôle d'une personne dans une installation maintenue par un établissement, que pour l'empêcher de s'infliger ou d'infliger à autrui des lésions. L'utilisation d'une telle mesure doit être minimale et exceptionnelle et doit tenir compte de l'état physique et mental de la personne.

Lorsqu'une mesure visée au premier alinéa est prise à l'égard d'une personne, elle doit faire l'objet d'une mention détaillée dans son dossier. Doivent notamment y être consignées une description des moyens utilisés, la période pendant laquelle ils ont été utilisés et une description du comportement qui a motivé la prise ou le maintien de cette mesure. Tout établissement doit adopter un protocole d'application de ces mesures en tenant compte des orientations ministérielles, le diffuser auprès de ses usagers et procéder à une évaluation annuelle de l'application de ces mesures. 118.1 .

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. Any measure referred to in the first paragraph applied in respect of a person must be noted in detail in the person's record.

In particular, a description of the means used, the time during which they were used and a description of the behaviour which gave rise to the application or continued application of the measure must be recorded.

Every institution must adopt a procedure for the application of such measures that is consistent with ministerial orientations, make the procedure known to the users of the institution and evaluate the application of such measures annually. [ 6 ] The fault essentially alleged by the appellants is that during this period, the Centre and the officers being prosecuted encouraged, tolerated or allowed the systematic imposition of isolation and restraint measures on psychiatric patients, without first ensuring that it was necessary to protect either the patients or third parties.

They maintain that the procedures and practices in force infringed the fundamental rights of the patients. [ 7 ] In support of their claims, the appellants filed four reports of the Quebec Ombudsman. [1] They are in response to the various complaints, including those of the appellant Lise Brouard, concerning the care received at the Centre.

The reports find that during this period, there was a systematic policy of isolation and restraint and an institutional culture not consistent with the Act , despite an initial report denouncing this state of affairs as early as 2002. [ 8 ] The report dated December 6, 2006, analyzes three complaints made by Ms. Brouard against the Centre, of which two are relevant to this dispute. [2] They concern placing Ms. Brouard in isolation and under restraint. For the purposes of this report, the Quebec Ombudsman’s delegate met with about ten stakeholders from the Centre, consulted Ms.

Brouard’s medical record, and analyzed the existing policies. Her analysis led her to make the following finding with regard to Ms. Brouard being put in isolation: [ translation] It seems to me that the facts reported in the observation notes justified the use of the isolation measures and that they were used as a last resort because other measures had been tried and had proved to be ineffective. [3] [ 9 ] The Quebec Ombudsman recalled that the use of isolation measures must be [ translation] “minimal and exceptional”. [4] With regard to the restraint measures, the Quebec Ombudsman referred to Ms.

Brouard by stating: [ translation] I feel that the latter [the nursing staff] did not ensure proper supervision of your physiological needs when you were being controlled with a straitjacket. [5] [ 10 ] In the other reports filed by the appellants, the Quebec Ombudsman analyzed the complaints of several users who had stayed at the Centre. The conclusions reached regarding each investigation are severe.

The Quebec Ombudsman reviewed the treatments administered to various patients, and also remarked, depending on the case: the use of “CODE 2222” rather than Code White, [6] excessively quick use of “CODE 2222”, [7] needless or excessive isolation procedures, [8] a lack of follow-up in cases of physical restraint, [9] the use of restraint beyond the necessary time period, [10] and needless reliance on chemical restraint. [11] [ 11 ] Even though the investigations of the Quebec Ombudsman concerned specific cases, it nevertheless reached several general

conclusions about the organization of the Centre and its culture with regard to restraint and isolation. The Quebec Ombudsman wrote in particular: [ translation] An analysis of the files tends to show that at the emergency unit, isolation and restraint are applied as routine measures instead of exceptional measures as they should be. In addition, none of the records consulted show that the procedures were stopped when the user regained self-control.

It has even been noted, as in the case cited above, that the situation does not necessarily change once the patient has regained self-control. [12] [ 12 ] The Quebec Ombudsman noted major deficiencies in the application of procedures by hospital staff, [13] which would show a lack of understanding on their part of the legal implications of isolation and restraint. [14] The Quebec Ombudsman finished the four reports by reiterating its recommendations to the Centre to correct the situation, pointing out recommendations going back as far as 2002. [ 13 ] During the period described, up to 240 patients were allegedly subjected to isolation and restraint measures, some of them repeatedly.

The following damages are claimed as compensation by each class member, subject to evidence of any greater prejudice: Physical abuse (

i) Stripping / each occurrence $3,000 (ii) Placing of an incontinence brief / each occurrence $2,000 (iii) Excessive and unjustified placing in isolation / by day $3,000 (iv) Strip search / each occurrence $4,500 (

v) Straitjacket / each occurrence $4,000 (vi) Unlawful chemical restraints / each occurrence $4,000 Psychological abuse (vii) Humiliation, intimidation, threats, verbal abuse, $2,000 infantilization / by class member Other damages claimed (viii) Exemplary damages for intentional violations $15,000 of fundamental rights / by class member [ 14 ] The appellants claim other restorative measures, including an order that the respondent set up a $100,000 fund [ translation] “in order to provide human rights information and training for residents… as well as the staff and all stakeholders and in order to assume assistance costs… for and on behalf of users of the Centre…” This fund would be administered by the appellant, Collectif de défense des droits de la Montérégie (C.D.D.M.). [ 15 ] The trial judge carefully analyzed the evidence adduced both in support of the motion as well as against it, including the medical record of the appellant Brouard, a member designated within the meaning of

article 1048 CCP , and the affidavits of physicians declaring the measures to be justified. Following a three-day hearing, he dismissed the motion for authorization, with costs against the appellant, C.D.D.M., including $26,229.17 in expert fees. According to the trial judge, even if the conditions set out in paragraphs (

c) and (

d) of

article 1003 CCP had been met, those in paragraphs (

a) and (

b) of the same

article had not. [ 16 ] The appellants are appealing pleno jure in virtue of

article 1010 CCP ANALYSIS [ 17 ] The objectives of a class action are: judicial economy, access to justice, and behaviour modification. [15] Assuming that the allegations of the motion are true, the last two objectives are obviously met in this case. The first objective will also be met if the determination of the common issues of the class is likely to further the individual recourses of the members in a meaningful way. [ 18 ] These objectives must be kept in mind when interpreting the conditions set out in

article 1003 CCP [ 19 ] The requirement of common issues is stated as follows:

1003. Le tribunal autorise l'exercice du recourscollectif et attribue le statut de représentant aumembre qu'il désigne s'il est d'avis que :

a) les recours des membres soulèvent desquestions de droit ou de fait identiques, similairesou connexes; 1003. The court authorizes the bringing of theclass action and ascribes the status ofrepresentative to the member it designates if ofopinion that: (

a) the recourses of the members raise identical,similar or related questions of law or fact; [20] The trial judge wrote at paragraphs [17], [18], [24] and [36] of his judgment: [translation] [17] That being the case, two difficulties arise. As for the question of whether, as required under

article 1003(a), “the recourses of themembers raise identical, similar or related questions of law or fact,” it is not really disputed that the recourse of the members raisessimilar questions of law. [18] The situation is more complex regarding the questions of fact. In this regard, it must be taken into account that, a priori, it cannot beconcluded that all persons who have a mental health problem and were subjected to isolation and constraint measures at the Centre weretreated improperly.

In fact, it can be normally assumed, as counsel for the applicants agreed during argument, that since some of thempresented a danger to themselves and others, their state required that they receive such treatment. This is therefore not a situation whereall the persons concerned by the motion can be objectively identified. ... [24] In this particular case, the recourse of the members clearly raises similar questions of law. The real issue is whether it raises similar,related or identical questions of fact. … [36] More fundamentally, the possible success of Ms. Brouard and Ms. D.

L., or even their lack of success, would in no way eitherfurther or set back the cause of other people likely to be affected by the motion. A hearing would be required in each case.

It wouldtherefore not be a class action either in principle or from a practical point of view. [21] In the judge’s opinion, common, related or similar questions of law with regard to the proposed class members are insufficientin the present case because they would neither further nor set back the claims of each class member, which would remain fact-based andindividualized. [22] A single common, related or similar issue of law suffices to meet the condition in

article 1003(

a) CCP if it is significant enoughto affect the outcome of the class action; however, it need not be determinative of the final resolution of the case: Comitéd’environnement de la Baie inc. v. Société de l’électrolyse et de chimie de l’Alcan ltée, (QC CA), [1990] RJQ 655(CA) at paragraphs 22 and 23. It is sufficient that it allows the claims to move forward without duplication of the judicial analysis(Pierre-Claude Lafond, Le recours collectif, le rôle du juge et sa conception de la justice (Cowansville, Que: Yvon Blais, 2006) at 92;Western Canadian Shopping Centres Inc. v.

Dutton, 2001 SCC 46 , [2001] 2 SCR 534 at para 39). [23] It is quite possible that the determination of common issues does not lead to the complete resolution of the case, but that itresults instead in small trials at the stage of the individual settlement of the claims. This does not preclude a class action suit. ProfessorLafond, supra, writes at pages 88–89: [translation] Differences in members’ claims and the possible need for each member to prove the personal damages suffered no longer bar a classaction suit.

As pragmatically stated by a court magistrate: [translation] “In the event of a monetary award, some accounting work would be inevitable, at the most.”263 263 Gosselin v. Quebec (Attorney General) (11 December 1986), Montreal. 500-06-000012-860 at 4(Sup.

Ct.) Paul Reeves J. … [24] In this case, the issues common to the members of the proposed class can be reformulated as follows: • Did the isolation and restraint procedures and practices in force at the Centre between June 2005 and June 2008 contravenesection 118.1 of the Act respecting health services and social services? • If so, what is the liability of the respondents toward the class members? [25] In the Court’s opinion, the condition provided in

article 1003(

a) CCP does not require more than this. Common issues, definedin this way, will move legal proceedings forward for each of the class members. Consequently, if the trial judge finds that the proceduresand practices were consistent with patients’ rights, the action will end. If the contrary is found, the judge will need to specify in whichcases, and to what extent, the Centre and the other respondents can be held liable. Then the class members will only need to prove howmany times and in what manner they were subjected to unjustified isolation and restraint measures. At this final stage, the class members

will benefit from a presumption of fault arising from wrongful procedures or practices, and it will be up to the respondents to mount arelevant defence, if applicable. [26] These questions also make it possible to define the parameters of the class. In George v. Quebec, 2006 QCCA 1204, the Court,per Trudel J.A. (ad hoc), summarized the state of the law as follows: [translation] [40] These decisions contain teachings applicable to the definition of a class in a motion for authorization to bring a class action: 1. The definition of the class must be based on objective criteria; 2.

There must be a rational basis for the criteria; 3. The definition of the class must not be circuitous or vague; 4.

The definition of the class must not be based on one or more criteria that depend on the outcome of the class action on the merits. [27] In the present case, the appellants propose: [translation] All the mental health users, patients of the Centre hospitalier régional du Suroît in Valleyfield, who were subjected, according to thepractices and procedures of this Centre, to isolation and restraint measures between June 11, 2005 and June 11, 2008, in violation ofsection 118.1 of the Act respecting health services and social services. [28] The respondents assert that such a definition is circular and not objective.

They are partly right. It is only following the trial onthe merits that we will be able to know who is a member of the proposed class. [29] What must be understood by the requirement that a class be defined according to objective criteria? In answering this question,we must bear in mind the ultimate purpose of the requirement as described by the Supreme Court in Western Canadian Shopping CentresInc. v. Dutton, supra, at paragraph 38: 38 While there are differences between the tests, four conditions emerge as necessary to a class action. First, the class must be capableof clear definition.

Class definition is critical because it identifies the individuals entitled to notice, entitled to relief (if relief is awarded),and bound by the judgment. It is essential, therefore, that the class be defined clearly at the outset of the litigation. The definition shouldstate objective criteria by which members of the class can be identified. While the criteria should bear a rational relationship to thecommon issues asserted by all class members, the criteria should not depend on the outcome of the litigation. It is not necessary thatevery class member be named or known.

It is necessary, however, that any particular person’s claim to membership in the class bedeterminable by stated, objective criteria: see Branch, supra, at paras. 4.190-4.207; Friedenthal, Kane and Miller, Civil Procedure (2nded. 1993), at pp. 726-27; Bywater v. Toronto Transit Commission (1998), 27 C.P.C. (4th) 172 (Ont. Ct. (Gen. Div.)), at paras. 10-11. [30] In

summary, membership in the class cannot be left up to the assessment of the putative member. Moreover, membership in theclass must not depend on the outcome of the litigation, as opposed to the right to an indemnity. [31] In this case, the class contemplated should be defined as [translation] “All mental health users, patients of the Centre hospitalierrégional du Suroît in Valleyfield, who were subjected to isolation or restraint measures between June 11, 2005 and June 11, 2008”. Thisclass includes about 240 patients who can be easily identified and may choose to be excluded if they wish.

Of course, only those personswhose rights have been infringed may be indemnified, which will exclude those for whom the measures were justified, an issue to bedecided, if necessary, at the claim analysis stage. [32] With regard to the second condition in

article 1003 (

b) CCP (“the facts alleged seem to justify the conclusions sought”), thejudge found that it was not met because the action, if it were possible, would need to be brought against the physicians who had orderedthe isolation and restraint measures, and not against the Centre, in accordance with the teachings of our Court in Hôpital de l’Enfant-Jésus v. Camden-Bourgault, (QC CA), [2001] RJQ 832. The trial judge wrote the following on the subject: [translation] [48] The Court of Appeal has recognized that, within the meaning of the civil law, a physician working in a hospital is not an employeeof this institution.

In other words, patients who are victims of malpractice (i.e. a professional fault) must bring an action in civil liabilityagainst the physician and not against the hospital. ... [53] This being the case, the review of the file of Ms. D. L. shows that all the restraint and/or isolation measures applied afterDecember 25, 2004, the date on which the prescription was allegedly suspended, were applied at the order of a physician, even though acertain number were open-ended. According to the principles set out by the Court of Appeal, Ms. D.

L.’s action against the hospital andagainst the two defendants acting in their respective professional capacities is unfounded in law. The Court adds that a consideration ofthe case also reveals that these interventions were justified in light of all the circumstances and bearing in mind that this last case was asevere psychiatric case. ... [55] Where does that leave Ms. Brouard? The record shows that, in most cases, the restraint and/or isolation measures to which Ms.Brouard was subjected were applied on a physician’s orders, and the respondents therefore cannot be faulted for it. Furthermore, a

consideration of of the record shows that, in light of all of the circumstances and bearing in mind that Ms. Brouard was a severepsychiatric case, the majority of these interventions were justified, not to mention the fact that, in some cases, there was no restraint orisolation, contrary to what the applicants alleged. At the very most, a few cases were questionable, although none of them showed aflagrant abuse of power. [Emphasis added.] [33] It is true that the Court found in Camden-Bourgeault that there was no servant-principal relationship between the hospital andthe emergency room physician on duty.

It should be pointed out, however, that the legislative framework relevant to Camden-Bourgaultwas amended in 1991, and that at the time of the proposed action, there were procedures in force at the Centre relating to the impositionof restraint and isolation measures, procedures that were applied not only by the medical staff but also by the Centre’s employees. It isalso worth noting that the appellants’ allegations address in part a faulty organizational culture in which the acts of the physicians areintermixed with those of the nursing staff and the Centre.

This gives greater meaning to the criticism of the arbitrary division among thevarious professional acts. [34] Thus, at first glance, the context of this case seems to differ from Camden-Bourgault and could possibly justify differentfindings. [35] In this case, to meet the condition of

article 1003(

b) CCP, the appellants had only to establish the existence of a legal syllogismexisted providing a prima facie basis for the conclusions sought. Clearly, this burden is met. [36] The Court adds that, at the authorization stage, it does not fall to the judge to decide the case on its merits, as was done in thiscase. Rather, the judge should simply ensure that the legal syllogism proposed is prima facie valid. In this regard, it is worth citing thecomments of Rousseau-Houle J.A. in Nadon v.

Ville d'Anjou, (QC CA), [1994] RJQ 1823 (CA): [translation] With great respect, the Superior Court judge seems to have gone too far in his analysis of the soundness of the findings in view of thealleged facts. According to

article 1003(b), it is sufficient that the facts alleged appear to justify the conclusions sought. The legislatorintends the Court to reject entirely any frivolous or manifestly improper action, and authorize only those in which the facts allegeddisclose a good colour of right. … … the difficulties in determining the fault, in establishing the causal link between the release of pollen and the various allergies fromwhich the appellant and the class members could suffer, and in appraising the damages and their possible prescription in 1991 cannot bevalid reasons in this case for dismissing the motion which also meets the other three conditions of

article 1003 CCP FOR THESE REASONS, THE COURT: [37] ALLOWS the appeal, with costs against the Centre hospitalier régional du Suroît; [38] SETS ASIDE the judgment of the Superior Court; [39] GRANTS the motion to institute proceedings for authorization to bring a class action, as amended during the appeal, asfollows: [40] ASCRIBES to Lise Brouard and to the C.D.D.M. the status of representatives for the purpose of bringing a class action for andon behalf of the following individuals: All mental health users, patients of the Centre hospitalier régional du Suroît in Valleyfield, who were subjected to isolation or restraintmeasures between June 11, 2005 and June 11, 2008. [41] IDENTIFIES as follows the main issues to be dealt with collectively: • Did the isolation and restraint procedures and practices in force at the Centre between June 2005 and June 2008 contravenesection 118.1 of the Act respecting health services and social services? • If so, what is the liability of the respondents toward the class members? [42] IDENTIFIES as follows the conclusions sought relating thereto: ALLOW the class action of the co-applicant and the class members against the respondents; DECLARE the respondents liable for the damages suffered by the co-applicant and the class members; CONDEMN the respondent Centre hospitalier régional du Suroît in Valleyfield to pay to each and every class member all the damagessuffered by them, with the said claims amounting to $22,000 by restraint and/or isolation occurrence as non-pecuniary damages, as wellas to repay in full any past disbursements subject to the right of each class member, and to prove any special greater prejudice on anindividual basis during the evaluation of the quantum; CONDEMN the respondents jointly and severally to pay the sum of $15,000 in exemplary damages to each class member for theviolation of fundamental rights suffered by them; CONDEMN the respondents to pay interest on the said sums, and the additional indemnity as set out in the Civil Code of Québec fromthe date of summons;

THE WHOLE with costs, including all notice and expert fees to be incurred in the present proceedings; [ 43 ] ORDERS that this class action be heard in the district of Beauharnois; [ 44 ] DECLARES that, barring exclusion, the Class members shall be bound by any judgment to be rendered on the class action in the manner set out in the Act ; [ 45 ] SETS the time limit for the exclusion at three months, at the expiry of which the Class members who have not asserted grounds for exclusion shall be bound by any judgment to be rendered; [ 46 ] ORDERS the publication of a notice to the Class members according to the terms of the draft notice to the members, Exhibit R-7 , in the newspaper and on the website below: • Le Soleil de Valleyfield ; • C.D.D.M. website and newsletter; [ 47 ] REFERS the case to the Chief Justice of the Superior Court for the determination of a judge to hear it; [ 48 ] THE WHOLE with costs in the appeal and costs to follow the outcome of the class action with regard to Superior Court costs.

PIERRE J. DALPHOND, J.A. NICOLE DUVAL HESLER, J.A. NICHOLAS KASIRER, J.A. Mtre Jean-Pierre Ménard, Ad. E. Mtre Jean-François Leroux Ms. Anne Raffolt (articling student) Ménard & Martin, Avocats For the appellants Mtre Guy Lemay Mtre Jacques Nols Mtre Anne-Marie Lévesque Mtre Marie-Andrée Gagnon Lavery, De Billy, s.e.n.c.r.l./l.l.p. For the respondents Date of hearing: April 12, 2011