In K.O. v. British Columbia (Ministry of Health), the British Columbia Supreme Court dismissed an application for certification of a claim under BC's Class Proceedings Act ("CPA") in which the proposed representative plaintiff alleged systemic failures in the healthcare system impacting a proposed class of every BC resident since 1974 suffering from a recognized mental illness. The primary allegation by the plaintiff K.O. was that stigma against mental illness was systemic and structural and that the Defendant, the BC Ministry of Health's failure to tackle that stigma constituted both negligence and a violation of the Canadian Charter of Rights and Freedoms (the "Charter"). The proposed class proceeding included a second related claim brought by the plaintiff J.O. on behalf of a proposed class of family members of the main class who provided household duties to class members who experienced domestic incapacities.
The central allegation in this case was that the persistent stigma toward mental health illness that was systemic within the BC healthcare system resulted in inadequate policy, funding and delivery of treatment for mental health illness resulting in outcomes for sufferers that were disparate from those of BC residents seeking treatment for physical illness (the "Claim"). The Plaintiffs' expert defined this stigmatization as: "intentional or unintentional negative behaviours or attitudes of healthcare providers towards patients with mental illnesses, and in the rules, policies, and practices of the healthcare system generally, that restrict the rights and opportunities of mentally ill patients to receive appropriate care."
The Court outlined the factors to be satisfied at certification pursuant to s. 4(1) of the CPA. The Court found in the first instance that the Claim, as pled, disclosed no cause of action and as a result, did not meet the requirement under s. 4(1)(a). The Court began its s. 4(1)(a) consideration by citing a decision of the BC Court of Appeal on the issue of adequacy of pleadings and noted that pleadings were not an exercise in storytelling but must set out the material facts that form a cause of action. The Court accepted that the test for whether the claim in a proposed class action proceeding discloses a cause of action was simply, assuming the facts pled to be true, does the claim have no reasonable prospect of success. Nonetheless, the Court found that, even on this on this low bar, the test was not met.
Rather than containing the material facts of a claim against the BC government, the claim included only bare allegations and no facts about harm to the Plaintiff or the lack of treatment. The claim also included only bare allegations of a difference between treatment received for physical and mental health illness. While the Claim included statements about the absence of treatment for mental health illness, lack of treatment facilities, lack of training in medical practitioners, lack of adequate funding, and better treatment for K.O.'s sister who suffered from cancer, no facts were alleged to ground these statements. The court's findings about the deficiencies in the pleadings are worth citing at length:
I am aware that I am not supposed to parse or fuss at this early stage, but to wave through any arguable cause of action, however novel or seemingly implausible, and to certify it as a class proceeding as long as the other statutory criteria are satisfied. I remind myself that the line between material facts and bald allegations can be elusive, that I am to assume that any material fact alleged is true, that a broad and generous approach is required, and that my role on this application is only to ensure that the pleadings define the facts and issues in dispute between the parties with enough precision to make the pre-trial and trial proceedings manageable and fair…
On the other hand, if insufficient material facts are pleaded to support every element of a proposed cause of action, then it is bound to fail: Skybridge Investments Ltd. v. Metro Motors Ltd., 2006 BCCA 500 at para. 11. While I recognise that a certification application is not the place for findings of fact or a determination of the case on the merits, it is appropriate and necessary to subject the pleadings to a sceptical analysis to determine their true character: Young v. Borzoni, 2007 BCCA 16 at para. 30. This approach benefits the parties and the justice system by ensuring that only claims with a realistic prospect of success proceed, and assures that scarce judicial resources are not squandered by side-stepping difficult questions of law in the class action context
The Court also accepted that it was necessary and appropriate to subject the pleadings to a 'sceptical analysis' and that this approach benefits the justice system by ensuring that only claims with a reasonable prospect of success proceed, and assures that scarce judicial resources are not squandered by side-stepping difficult questions of law in the class action context.
In addition to noting deficient facts pled to reveal a cause of action, the Court also considered the nature of the claim under s. 4(1)(a). The claim did not involve a demand for policy change or other positive rights from that system but rather alleged that a duty existed to remove stigma within the system creating a standard of care and a breach. The Court rejected this categorization of the duty owed and held that the adequacy of government policy and allocation of resources on important issues, including healthcare, is not properly the subject of a tort claim. In addition to rejecting the alleged policy issue as the basis for a tort claim, the Court held it also could not constitute a Charter breach because Charter rights are confined to government action, not inaction.
The related trust claim brought by J.O. on behalf of the class of domestic caregivers was addressed only briefly and again rejected for certification. As pled, it had no prospect of success and no material facts had been pled in its support.
The Court also considered the requirements at each of:
- s. 4(1)(b) that there be an identifiable class of at least two members;
- s. 4(1)(c) that the claim raise issues common to the class;
- s. 4(1)(d) that a class proceeding is preferable; and
- s. 4(1)(e) that there is an appropriate representative; and
found each to be a bar to certification regardless of the failure to plead a complete cause of action.
In K.O. v. BC (Ministry of Health) the Court's stated understanding that the class proceeding arose from an area of significant public policy significance, did not make the subject matter of the claim suitable for a class proceeding. In this case, access to justice was better served by ensuring judicial resources were not consumed by a class action claim without a chance of succeeding.
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