Canada: Developmental Services Waitlist Class Action Versus Ontario Government Achieves Certification

Leroux v. Ontario

Belobaba J. recently certified a proposed class action against the Ontario government over the operation and administration of a provincial social assistance program for developmentally disabled persons. The decision is noteworthy in that the Court certified a fairly novel claim against the Ontario government under section 7 of the Canadian Charter of Rights and Freedoms.

The decision demonstrates the benefit, from the plaintiff's point of view, of advancing relatively narrow claims and common issues on a certification motion.

Brief Facts

With the enactment of the Services and Supports to Promote the Inclusion of Persons with Developmental Disabilities Act, 2008 ("the 2008 Disabilities Act"), developmentally disabled persons who turn 18, must apply to the Ministry of Community and Social Services  in order to receive government funded support and services. Once assessed and approved, applicants are placed on a waitlist without an estimate as to how long they must wait for services.

Marc Leroux, litigation guardian for his daughter Briana, brought a proposed class action on behalf of all developmentally disabled persons who had turned 18 and had been governmentally-approved to receive support and services, but remained on a waitlist. The plaintiff advanced three causes of action: negligence, breach of fiduciary duty, and breach of s. 7 of the Charter (primarily the right to "security of the person").

Preliminary Observations

Before turning to the certification analysis, Belobaba J. made two preliminary observations. First, he clarified that the plaintiff's claim was not concerned with inadequate funding or the need for greater allocation of governmental resources. Rather, the claim alleged the negligent utilization and administration of existing resources. Second, Belobaba J. found that there was sufficient evidence of a class-wide commonality based on recent public reports filed by the plaintiff, cataloguing frustrations with the social services system wait-lists.

Reasons for Certification

In considering whether the plaintiffs had satisfied s. 5(1)(a) of the Class Proceedings Act, Belobaba J. concluded that two of the plaintiff's claims satisfied the requirement for a tenable cause of action: the negligence claim and the s. 7 Charter claim. The claim for breach of fiduciary duty, however, was doomed to fail and was struck.

On the negligence claim, Belobaba J. accepted that sufficient proximity could exist between the proposed class members and the defendant, given that every proposed class member directly interacted with the defendant through the receipt of services before turning 18, and had further contact after turning 18 and receiving formal approval for continuing support and services.

On the Charter argument, Belobaba J. was persuaded that there could be some state conduct involved in the matter on the facts as pleaded. He found it conceivable that the conduct of the defendant could deprive the plaintiff of some measure of security of the person. The term "deprivation" as defined in the case law was broad enough to embrace withholding of services that has the effect of erecting barriers, and there was case law standing for the proposition that governmental delay could constitute deprivation for the purposes of s. 7. Finally, given the early stage of the proceeding, it would be inappropriate to find that the plaintiff's allegation of procedural fairness/arbitrariness had no chance of success.

Unlike the claims for negligence and breach of s. 7, the claim for breach of fiduciary duty was "doomed to fail" and was struck. Belobaba J. stated that discretion and vulnerability can exist without triggering a fiduciary standard. Here, there was no claim that the defendant had given an undertaking of responsibility or was legislated to act in the best interest of a beneficiary; the facts as pleaded did not demonstrate a degree of discretionary control over interests; and the plaintiff failed to plead that the defendant had put its own interests ahead of the plaintiff's.

Belobaba J. found that there was a sufficiently identifiable class, and that there were common issues sufficient to meet the s. 5(1)(c) threshold. Specifically, Belobaba J. certified the common issues that asked about a breach of a duty of care, breach of s. 7 of the Charter, and the availability of punitive damages. Belobaba J. rejected the award of aggregate damages and the quantification of punitive damages as common issues, because such amounts could not be determined and quantified based on the current evidence.

Belobaba J. was also satisfied that the resolution of the certified common issues would advance the litigation for all class members sufficiently to meet the s. 5(1)(d) threshold. A challenge to the 2008 Disabilities Act would likely never materialize if the litigation guardian of a developmentally disabled person had to incur the costs of litigation himself or herself.

Finally, the proposed litigation plan was a workable method of advancing the proceeding on behalf of the class, as required by s. 5(1)(e).

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