The May 21 Court of Appeal for Ontario decision in Stolove v. Waypoint Centre for Mental Health Care, 2025 ONCA 376 involved the plaintiffs’ failed attempt to certify a class action in which they allege “systemic negligence” on the part of Waypoint Centre for Mental Health Care — a facility housing mentally ill patients known for their aggression, capacity for violence and lack of self-control.
The proposed class allege that Waypoint has “systematically subjected patients at the [h]ospital to excessive, punitive and arbitrary use of seclusion and restraint, amounting to solitary confinement.”
According to the Appeal Court ruling, they argue this violates patients’ Charter and common-law rights — and runs contrary to “internationally recognized norms against torture and cruel, inhuman or degrading treatment.”
They maintain that patients at Waypoint have “routinely” been subjected to “the prolonged use of seclusion and restraint for arbitrary and punitive reasons” and “are locked up 22 to 24 hours per day without social or physical stimulation and without daily relief from seclusion.”
The lawsuit was filed in the name of Ruben Stolove.
Stolove, his litigation guardians and the other plaintiffs applied to a lower court for class certification, but the motion judge found the group to have failed to satisfy the “common issues” aspect needed, and that “there is no basis in fact for systemic wrongdoing” in this case.
The judge instead decided that “joinder actions” by individuals in the class who have claims against Waypoint would be a “preferable procedure.”
The Appeal Court notes a central reason given by the motion judge: that the decision to restrain or seclude a patient may, in certain circumstances, be “legally appropriate” in order to protect them and others, and that a patient’s individual circumstances must be considered when determining whether such tactics were justified.
The motion judge noted that psychiatric hospitals around the world use restraint and seclusion as ways to manage behaviours that risk the safety of both the subject patient and others. Also, the judge found that the use of seclusion in psychiatric facilities is part of “active treatment” of a patient’s condition — thus setting it apart from its use in, say, a prison setting.
The plaintiffs argued before the Appeal Court that the motions judge misconstrued “the elements of a claim for systemic wrongdoing” by requiring “a uniform set of circumstances or categorical breaches” by Waypoint.
But Appeal Court Justice Patrick Monahan, with Justices Lorne Sossin and Lene Madsen in agreement, found the motion judge to have done nothing wrong in his “commonality” analysis, and that he correctly assessed the “common issues” aspect.
“The refusal of the motion judge to certify this class proceeding was not based on any misunderstanding of the relevant legal principles,” found Justice Monahan. “Rather, it resulted from his finding that the issues raised by the putative class proceeding could only be resolved through individualized assessments that would have to be made at individual trials.”
Justice Monahan noted that the “[h]ospital’s policies ... acknowledge that the use of restraint and seclusion frequently results in adverse physical, emotional and psychological outcomes for all individuals involved, including patients and staff.”
“For this reason, the benefits of using restraints must outweigh the potential risks in each individual case.”
As part of its ruling, the Appeal Court gives an eye-opening description of Waypoint, which provides care for those with “serious mental illnesses who have been involuntarily admitted” to a psychiatric facility.
“The [h]ospital’s patients include some of the most ill and difficult to treat ... because of their level of violence and aggression and the difficulties controlling their behaviour. The involuntary forensic patients at the hospital cannot be safely treated at less secure facilities. When other hospitals cannot handle their patients, they send them to [Waypoint].”
The Appeal Court noted that the “security and safety challenges” at Waypoint “are significant” — it spotlights a three-month period in 2020, when there were 46 assaults committed by “involuntary forensic” patients.
“The staff and patients at the Hospital have been attacked by other patients with weapons, and have been stabbed, bitten, punched, kicked, urinated and spat upon, and smeared with feces.”
The Appeal Court also notes the Mental Health Act dictates that those in psychiatric hospitals use the “least restraint principle,” and that the physical and mental condition of the patient must be considered.
Joel Rochon, Rochon Genova
“The Court of Appeal’s decision ignores the central element of this case, that Waypoint has normalized the use of prolonged seclusion, lasting weeks, months or years, as a means of patient management and as part of a custodial and punitive model of care that is irreconcilable with the psychiatric standard of care,” said Rochon, a principal at Rochon Genova.
He was asked to comment on the legal significance of the Appeal Court’s ruling.
“The ... decision risks immunizing institutions with ‘good’ written policies from legal action by finding that the focus of the analysis should be on individualized circumstances, rather than the institution’s general conduct.”
Rochon said there are around 1,200 class members “subjected to seclusion at Waypoint since the year 2000.”
Elizabeth Bowker, Stieber Berlach
“The Court of Appeal upheld the motion judge on every point, and the key finding is that we have a situation where we know that seclusion and restraint are lawful — there’s the Mental Health Act, and the common law provide that there is a right and duty to restrain patients for as minimal time as necessary in order to protect them, protect other patients, protect the public,” said Bowker, a member of Stieber Berlach.
“What the plaintiffs were saying here is we were secluded for too long. And at a very basic level, then, their class action is, well, how do you figure out if someone is secluded too long? What the motion judge found is to answer that question, you can’t answer it in common across the class, you need to look at the circumstances of individual patients to figure out whether any given patient was secluded for too long on a given day at a given time — for whatever the reasons were.”
Like Rochon, Bowker was asked to comment on the legal significance of the Appeal Court’s ruling.
“The Court of Appeal decision and the motion judge’s decision confirms that on a certification motion, courts will carefully scrutinize the proposed common issues to ensure that they truly can be determined in common, and in a systemic negligence class action, like this was alleged to be, the plaintiffs need to point to a wrongdoing that’s actually systemic in nature in order to ground that systemic negligence class action.”
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