Stigma Not The Foundation Of A Class Proceeding

• Published date: 02 May 2022
• Subject Matter: Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Class Actions
• Law Firm: Gowling WLG
• Author: Ricki T. Johnston

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...