The Ontario Court of Appeal is set to determine the fate of pregnant women affected by contentious birth alerts, which resulted in the separation of newborns from their families, in a potential class-action lawsuit against 49 children’s aid societies in the province. This decision may lead to a revision of a longstanding Ontario common law. If approved, it could establish a significant avenue for marginalized individuals to seek justice in future class-action cases, according to legal experts, although there are concerns it might impact businesses in Ontario.
Tina Yang, a partner at Goldblatt Partners LLP representing the plaintiffs, criticized the existing law as an unnecessary obstacle. Birth alerts involved child welfare agencies notifying hospitals about pregnant individuals deemed “high-risk,” leading to the removal of newborns from their parents, a practice denounced as unconstitutional and illegal.
In 2020, the Ontario government halted the use of birth alerts, citing their disproportionate impact on Indigenous and racialized mothers. Ontario’s class-action lawsuit on birth alerts has progressed further compared to similar cases in other provinces.
During a recent hearing at the Ontario Court of Appeal, Yang’s legal team advocated for reconsidering the inclusion of the 49 societies in the lawsuit, aiming to hold these agencies accountable for their alleged harm to affected families. The court heard arguments on both sides, with Yang emphasizing the need to protect vulnerable class members and highlighting Ontario’s unique stance compared to other provinces in facilitating such legal actions.
The debate revolves around the Ragoonanan principle, which mandates a direct claim against each named defendant in a lawsuit. Yang’s team faces the challenge of finding suitable plaintiffs for each agency, a task complicated by various factors such as power imbalances and the reluctance of affected individuals to come forward due to associated difficulties.
The court also heard from third-party organizations supporting or opposing the potential revision of the Ragoonanan principle. While advocates like the Canadian Civil Liberties Association lauded the role of class actions in promoting accountability and addressing systemic injustices, concerns were raised by groups like the Ontario Chamber of Commerce about the impact on the business community if the rule is overturned.
The Ontario government has appealed against the certification of the lawsuit, arguing that it should not be held liable for the actions of independent children’s aid societies. Chief Justice Michael Tulloch is expected to announce the panel’s decision in the coming months, following a comprehensive review of the case.