The limits of class actions: Systemic negligence claim is unmanageable

Promoting access to justice is one of the primary objectives of class actions. However, sometimes a class action sacrifices justice and would deny redress to a group of harmed individuals. Justice Perell of the Ontario Superior Court of Justice found that R.G. v. The Hospital for Sick Children was just such a case. He found that the case hinged on difficult individual issues, and it was beyond the resources of the Class Proceedings Act, 1992 to fairly adjudicate them. Therefore, Justice Perell dismissed the plaintiff’s motion for certification.

Background: Unreliable testing for drug use

The proposed class action related to flawed tests of hair samples at the Motherisk Drug Testing Laboratory. The tests were used to detect drug and alcohol consumption, and were relied upon in family, child protection, and criminal proceedings. The tests were shown to be unreliable in a criminal appeal, and the lab was closed. The plaintiff claimed that the defendants had engaged in “systemic negligence” by releasing the unreliable test results. 

Preferable procedure and access to justice

Justice Perell highlighted what he described as a serious “design flaw” that rippled throughout the criteria for certification: even if the plaintiff was successful in proving systemic negligence at a common issues trial, no individual would be able to prove their damages without difficult individual inquiries. In other words, a common finding that the tests were generally unreliable would not show that the test results were wrong for any given individual, or that the test results influenced the outcome of their court and child access determinations.

Therefore, the proposed class action did not advance either substantive or procedural access to justice, and could not satisfy the preferable procedure requirement. It failed to provide substantive justice because class members would still have to litigate these individual issues to access any remedy or obtain damages. And it failed to advance procedural justice because the individual issues would overwhelm the common issues and make the case unmanageable – causing delay and expense, and potentially exposing the individual class members to adverse costs rulings.

The plaintiff argued that the court could manage the complex individual issues by invoking its powers under sections 12 and 25 of the Class Proceedings Act, 1992. In particular, she proposed an approach where an “Interview Panel” would interview claimants without the defendants having any rights of disclosure or to be heard, and two-hour long damages hearings would be held to determine all of the causation and damages issues based only on the report of the Interview Panel and short statements from one expert on each side. Justice Perell rejected this litigation plan that eliminated “the Defendants’ procedural rights to defend themselves from a $450 million systemic negligence claim” and concluded that it was “beyond the resources of sections 12 and 25 of the Class Proceedings Act, 1992 to tailor and trim the individual issues trials.”


Access to justice and manageability concerns will often pull in opposite directions in most certification motions. Ontario courts have certified class actions with significant individual issues and have pointed to the powers in sections 12 and 25 of the Class Proceedings Act, 1992 as a way of managing the proposed action and advancing access to justice (see, for example Amyotrophic Lateral Sclerosis Society of Essex v. Windsor (City) and Fantl v. Transamerica Life Canada).

The decision in R.G. is a reminder that there are limits on the ability of class actions to promote access to justice where common issues cannot provide any real answers for the class.

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