Hospital operated drug testing laboratory between 2005 and 2015 and during that time tested hair of 18,463 individuals to screen for presence of drugs and alcohol. Of 18,463 individuals tested, total of 10,004 were reported as having positive result and 6,958 of reported positives were individuals referred from child protection agencies. Proposed representative plaintiff was one of individuals tested and, following positive test results, her child remained in foster care for approximately two years. Proposed class action was commenced. Proposed representative plaintiff brought motion for certification of proposed class action. Motion dismissed. Major deficiency in proposed class action was its failure to satisfy preferable procedure criterion. Procedural and substantive access to justice would invariably require individual issues trials for class members with significant enough injury to justify expense of complex individual trials about liability. Individual issues trials were not amenable to any summary determination as contemplated by s. 25 of Class Proceedings Act, 1992. Common issues would not sufficiently advance claims of class members and combining common issues trial with individual issues trials made proceedings unmanageable and disadvantageous in comparison to alternative of individual actions. Class action was not preferable procedure for access to procedural justice. Given problems confronting substantive access to justice and problems of efficiency and productivity, and given what little would be accomplished by common issues trial, more efficient and expeditious way to adjudicate claims would be to proceed directly by way of individual actions.
Green v. The Hospital for Sick Children (2017), 2017 CarswellOnt 16865, 2017 ONSC 6545, Perell J. (Ont. S.C.J.).