By: Quintina Northrup

On October 1, Court of Queen’s Bench Justice Tracey DeWare ruled in favour of proceeding with a class-action lawsuit originally brought forward by Koskie Minsky LLP in May 2019. 

The law firm’s website outlines the claims: “The lawsuit alleges that New Brunswick and Vitalité were negligent, violated patients’ rights under the Canadian Charter of Rights and Freedoms, and breached fiduciary duties through their operation, management, administration, supervision, and control of the hospital. These failures resulted in serious and lasting harm to patients.”

The claim alleges mistreatment and negligence by staff operating authorities at the Restigouche Hospital Centre in Campbellton. The lawsuit is filed on behalf of all patients who were either treated or resided at the hospital since 1954, and is seeking a $500 million settlement. 

Darrell Tidd and Reid Smith, fathers of two patients at RHC, are the plaintiffs in this case, acting as litigation guardians for their sons, Devan Tidd and Aaron Smith, who are patients at the hospital in question.

Tidd has said that his son, who is on the autism spectrum, has been assaulted by other residents and was overmedicated.

Smith alleges similar events have transpired with his son, who is also on the autism spectrum, in addition to having obsessive compulsive disorder. He alleges his son was also overmedicated at the facility.

James Sayce, the lawyer who is representing the plaintiffs, alleges a breach of section 15 of the Canadian Charter of Rights and Freedoms which protects those with mental health challenges against discrimination.

The suit is extensive, containing 25,000 to 30,000 pages of documents, where DeWare said she found enough evidence to proceed with certification.

DeWare recognized that the barrier that exists for the plaintiff’s access to justice, in this case, is the stigmatized nature of individuals who have mental health challenges.

“I am satisfied that the resolution of the common issues in this matter will move the matter along significantly and provide access to justice which would otherwise be out of reach for most of the Class members,” she said.

During the certification hearing, Denis Thériault, a lawyer representing the provincial government, argued that a class-action lawsuit was not the proper route, citing that there were not enough common issues in order to support a class-action lawsuit.

DeWare addresses this in her decision, stating, “there will be significant individual issues to be managed and resolved in this matter; that reality is not in dispute. However, a trial of the common issues will significantly advance the adjudication of the liability issue, and I am convinced that in the absence of a Class proceeding, the adjudication of those liability issues would never take place.”

In an interview with CBC, Tidd said, “we’re not doing this for just our two boys […]. We’re doing it for the ones that have no voice out there.”

Neither Koskie Minsky LLP nor Vitalité responded in time for this publication.