COURT OF APPEAL FOR ONTARIO
DATE: 20210722 DOCKET: C68305
Fairburn A.C.J.O., MacPherson and Gillese JJ.A.
BETWEEN
Jared Florence, Dana Florence, Brody Florence, Cole Florence and Taylor Florence, by their Litigation Guardian, Dana Florence
Plaintiffs (Appellants)
and
Dr. Susan Benzaquen and Dr. Jon Fenton Roy Barrett
Defendants (Respondent)
Counsel: Duncan Embury and Daniela M. Pacheco, for the appellants J. Thomas Curry, Brendan F. Morrison and Sean M. Blakeley, for the respondent
Heard by video conference: February 23, 2021
On appeal from the order of Justice Darla A. Wilson of the Superior Court of Justice, dated April 14, 2020, with reasons reported at 2020 ONSC 1534.
Gillese J.A.:
[1] Is it settled law, in Ontario, that a physician does not owe a duty of care to a future child for alleged negligence that occurred pre-conception? The answer to that question is determinative of this appeal.
I. Overview
[2] Dana Florence began taking Serophene, a fertility drug, in early July 2007. She was 25 years old and had been attempting to conceive for only a few weeks. By the end of July, Ms. Florence was pregnant. On January 1, 2008, at 26 weeks’ gestation, she gave birth to triplets: Brody, Cole, and Taylor (the “Appellants”). As a result of having been born prematurely, the Appellants have serious disabilities.
[3] In 2011, Ms. Florence and her husband, Jared Florence, together with the Appellants [^1] (collectively, the “Plaintiffs”) commenced this action in which they claim against Dr. Benzaquen (the “Respondent”) in negligence (the “Action”). [^2] The Respondent was Ms. Florence’s gynecologist from 2004-7 and had prescribed the Serophene.
[4] In the Action, the Plaintiffs claim that Ms. Florence was not given all the information necessary to make an informed decision about the use of Serophene. Specifically, they allege that she was not advised of the significant risk of conceiving multiple fetuses, the associated risks which include premature birth of the babies, and the resulting potential for significant neurological and developmental injuries to them. They further allege that the Respondent’s prescription of Serophene was contraindicated and failed to take into account Ms. Florence’s age, the very short time that she and her husband had been trying to conceive, and other clinical indicators which suggested that the use of Serophene was unreasonable in the circumstances. They plead that if Ms. Florence had been aware of the significant risks associated with multiple births, she would not have taken Serophene.
[5] In the Action, the Appellants assert that they brought it in “their own right”. Below and on appeal, the Appellants argue that their case is not predicated on the issue of their mother’s informed consent. Rather, they assert that the Respondent owed a concurrent duty of care to their mother and to them to not prescribe to their mother a contraindicated and potentially dangerous medication (Serophene) that the Respondent knew, or ought to have known, could cause harm not only to Ms. Florence but also to them.
[6] In her statement of defence, the Respondent denies the allegations, maintaining that a proper history was obtained, informed consent was given, and prescribing Serophene was appropriate.
[7] The Respondent brought a motion pursuant to r. 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to strike the Appellants’ claims before trial (the “Motion”).
[8] In her reasons (the “Reasons”), the motion judge concluded that the Appellants’ claims are not recognized at law and, thus, they have no viable cause of action. Accordingly, by order dated April 14, 2020, she granted the Motion and struck the Appellants’ claims.
[9] The Appellants’ overarching position on appeal is that their case is factually different from those decided to date in Ontario and the novel duty of care they assert has wide implications of public importance. They argue that they should be afforded the opportunity to present a full factual and evidentiary record at trial before the court decides whether their claims should be recognized at law. They say only a trial will enable the court to conduct a comprehensive Anns analysis to determine whether a duty of care was owed in the specific circumstances of this case, and that a full record is necessary for the court to consider the “prolific prescription of fertility drugs”, and the “serious consequences borne by the public healthcare system and taxpayers as a result”. They contend that, in any event, the motion judge erred in her “limited-form” Anns analysis and that had she performed it correctly, she would have determined that their claims should be decided at trial. The Appellants refer to the motion judge’s analysis as a “limited-form” Anns analysis to distinguish it from the full analysis that would be possible if the issue were decided at trial. [^3]
[10] The Respondent’s overarching position on appeal is that it is settled law, in Ontario, that a physician does not owe a duty of care to a future child for alleged negligence that occurred pre-conception. In any event, however, the Respondent submits that the motion judge correctly applied binding precedent in striking the Appellants’ claims.
[11] In my view, the motion judge correctly decided the Motion. For the reasons that follow, I would dismiss the appeal.
II. The Motion Judge’s Reasons
A. Rule 21 and timing of the Motion
[12] The motion judge began by stating the relevant parts of r. 21 and the principles that apply on such motions. Rule 21 enables a party to move for the determination of a question of law raised by a pleading, where that determination may dispose of all or part of the action or substantially shorten the trial, or to strike out a pleading on the ground that it discloses no reasonable cause of action. On r. 21 motions:
a) the judge must take as true the facts as pleaded;
b) the moving party must prove – assuming the facts pleaded are true and proven – that it is “plain and obvious” there is no reasonable cause of action; and
c) the threshold for success is high: the claim as pleaded must have “no possibility of success”.
[13] Quoting from R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 19, the motion judge observed that striking claims with no reasonable prospect of success is a “valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial.” She added that having a r. 21 motion heard before trial enables the defendant to know the case it must meet and the plaintiff to know what evidence it must marshal, at trial.
[14] The motion judge expressed her view that r. 21 motions should be heard at the earliest date. Such motions are intended to dispose of claims that have no chance of success because they have no basis in law. It is preferable that they be decided well in advance of trial so that the issues for adjudication are clarified at an early stage, and time and expense is not wasted on developing and defending such claims. There is no advantage to delaying this Motion until trial – an evidentiary record is not necessary since the Motion is determined on the pleadings.
B. The law on wrongful life cases
[15] The motion judge described a claim for wrongful life as one asserted by the child for a pregnancy that results in birth defects and where the child argues that, but for the negligence of the doctor, the child would not have been born.
[16] The motion judge then discussed the relevant caselaw, beginning with Dobson (Litigation Guardian of) v. Dobson, [1999] 2 S.C.R. 753, in which the Supreme Court held no duty of care could or should be imposed on a pregnant woman to her fetus or subsequently born child.
[17] Next, the motion judge discussed Lacroix (Litigation Guardian of) v. Dominique, 2001 MBCA 122, 202 D.L.R. (4th) 121, leave to appeal refused, [2001] S.C.C.A. No. 477. In Lacroix, a claim was brought because of abnormalities to a child caused by epilepsy medication the mother had taken while pregnant. The Manitoba Court of Appeal described the case as one of wrongful life because, had the mother known the effect of the medication, she either would not have taken it while pregnant or she would not have become pregnant; thus, the child would not have been born. The court did not recognize an action for wrongful life. It followed the reasoning in McKay v. Essex Area Health Authority, [1982] Q.B. 1166 (Eng. C.A.), and held that a doctor did not owe a future child a duty of care to not prescribe a medication to the mother because the imposition of such a duty “would immediately create an irreconcilable conflict between the duty owed by the doctor to the child and that owed to the mother”: at para. 39. In Lacroix, the court also said that claims based on the imposition of a duty on doctors to a future child are contrary to public policy because it would be impossible to assess damages.
[18] The motion judge then summarized three Ontario appellate decisions discussed later in these reasons: Bovingdon (Litigation Guardian of) v. Hergott, 2008 ONCA 2, 88 O.R. (3d) 641, leave to appeal refused, [2008] S.C.C.A. No. 92; Paxton v. Ramji, 2008 ONCA 697, 92 O.R. (3d) 401, leave to appeal refused, [2008] S.C.C.A. No. 508; and, Liebig v. Guelph General Hospital, 2010 ONCA 450, 321 D.L.R. (4th) 378.
C. Application of the law to the facts of this case
[19] To decide the Motion, the motion judge began by examining the nature of the claims advanced in the pleadings. She observed that the Appellants brought the Action in their own right “pursuant to the provisions of the Family Law Act, R.S.O. 1990, c. F.3”. She said it was “unclear” how their claims could be so asserted.
[20] The motion judge accepted the pleadings as true for the purposes of the Motion: the Respondent was negligent in prescribing Serophene to Ms. Florence because it was unreasonable and unnecessary; Ms. Florence was not provided with information concerning the risks of multiple and premature births, and the resultant injuries to the babies associated with taking the medication; and, Ms. Florence took the prescribed fertility drug which resulted in her becoming pregnant with triplets who were born with very serious disabilities because of the prematurity of their birth.
[21] The motion judge observed that the allegations of negligence against the Respondent all relate to her care and treatment of Ms. Florence – there was “no pleading of a duty owed to the triplets by the [Respondent] in any capacity”.
[22] She noted that Ms. Florence can maintain a claim in negligence against the Respondent and that it is settled law that a child, once born alive, can sue for injuries as a result of negligence committed while in the womb. [^4]
[23] However, the motion judge stated, in this case there was no injury to the fetus arising from a negligent act because conception had yet to take place. Accepting that the medication ought not to have been prescribed to Ms. Florence and it was an act of negligence to do so, the medication itself did not cause the birth defects or neurological injuries to the Appellants. According to the pleadings, Serophene increased the likelihood of multiple births and premature delivery, which resulted in the Appellants’ impairments.
[24] The motion judge concluded that the Appellants’ claims are that they would not have been born had the negligence not occurred, making them a case which the courts have described as “wrongful life claims”.
[25] The motion judge accepted the Appellants’ assertion that this court has not said that a wrongful life claim could never be successful. She pointed to para. 73 of Bovingdon, where Feldman J.A., writing for this court, said it was unclear whether the courts would necessarily dismiss every claim for wrongful life and to determine whether the claims of unborn children can be maintained, it is necessary to decide in each case whether the doctor owed a duty of care to the future child. If such a duty has been previously found to exist, the court is to apply standard negligence law. If not, the court must undertake an Anns analysis.
[26] Because the relationship in the pleadings in this case has not been recognized as giving rise to a duty of care, the motion judge undertook the two-part Anns test which she described as follows. First, is there a relationship of proximity between the two parties in which a failure to take reasonable care might foreseeably cause loss or harm to a party? If so, then a prima facie duty of care arises. Second, are there policy reasons why the prima facie duty of care should not be recognized?
[27] Relying on para. 75 of Paxton, the motion judge said that for legal proximity to exist, the relationship between the doctor and unborn child must be both “close and direct”. In Paxton, the court found that the relationship was indirect: the doctor could not provide recommendations to, nor take instructions from, a future child. The motion judge found, for the reasons given in Paxton, that the relationship in this case lacks the necessary proximity to establish a prima facie duty of care.
[28] Relying on the reasoning in Bovingdon and Paxton, the motion judge said that to impose a duty of care on the doctor to the unborn children, in addition to the doctor’s duty of care to the mother, could create a conflict of interest in terms of the treatment offered to the woman and place the doctor in an impossible position because of competing duties owed.
[29] The motion judge rejected the Appellants’ argument that their case is distinguishable from Bovingdon, which was solely an informed consent case. She said that the additional claim of negligence asserted against the Respondent did not change the analysis to be undertaken in determining whether a duty of care was owed to the unconceived children. She found the Appellants’ case to have very similar facts to those in Bovingdon, in which this court concluded that the doctor owed no duty of care to future children to not cause them harm in prescribing fertility drugs to the mother.
[30] The motion judge said the policy considerations set out in Paxton on the second branch of the Anns test concerning women’s autonomy and the potential for conflicting duties on the doctor were present in this case.
[31] The motion judge concluded that no duty of care to the Appellants, as unconceived babies, should be recognized. She stated that this court has rejected wrongful life claims and the lower courts are bound by that jurisprudence. In her view, this court has “closed” the door on cases arising from the prescription of fertility drugs that result in premature births.
[32] Because the motion judge viewed the law to be clear that the Appellants’ claims could not succeed, there was no need to wait until trial to determine whether the claims were viable. Accordingly, she granted the Motion and dismissed the Appellants’ claims without leave to amend.
III. The Issues
[33] The Appellants submit that the motion judge erred in:
- failing to apply the “limited-form” Anns test [^5] to the facts of this case;
- her application of Bovingdon and Paxton; and
- characterizing their claims as ones for wrongful life and categorically denying them.
IV. The Standard of Review
[34] The parties are agreed that this court is to review the motion judge’s decision on a standard of correctness.
V. This Court’s Caselaw
[35] The primary task on this appeal is to determine whether the motion judge properly adhered to this court’s jurisprudence. Consequently, before addressing the issues, it is necessary to carefully examine the decisions of this court in Bovingdon, Paxton, and Liebig.
Bovingdon
[36] A doctor prescribed a fertility drug to Ms. Bovingdon. She became pregnant with twins and gave birth to them prematurely. The twins were profoundly disabled as a result of their premature birth. Ms. Bovingdon, her husband, the twins, and other family members sued the doctor claiming that he failed to provide Ms. Bovingdon with all the information necessary to make an informed decision whether to take the fertility drug. The jury found the doctor negligent for failing to provide Ms. Bovingdon with the necessary information. The jury further found that had she been given that information, Ms. Bovingdon would not have taken the fertility drug.
[37] The trial judge ruled that the twins’ claims were not wrongful life claims and the doctor owed them a duty of care. Because he breached that duty by failing to give their mother the necessary information, the trial judge held that the twins were entitled to recover damages in their own right.
[38] On appeal to this court, the trial judge was found to have erred: the doctor did not owe a duty of care to the twins and they had no claims to advance.
[39] In reaching this conclusion, Feldman J.A., writing for the court, rejected the two-category approach used by other courts in deciding whether claims of future children should be recognized. Under the two-category approach, claims by children born with disabilities are divided into two categories: those in which the abnormalities were caused by the wrongful act or omission of another and those in which, but for the wrongful act or omission, the child would not have been born. The latter category has been termed “wrongful life” claims. While Feldman J.A. viewed the twins’ claims as falling into the category of wrongful life claims, she said that the two-category approach was not a helpful analytical basis for assessing such claims because the facts can lead to a child being placed in either or both categories. For example, in Lacroix, because it was the epilepsy drug that caused the injury to the fetus, the cause of action could be viewed (as it was) as one for wrongful life but it could also be viewed as one where the act of the doctor in prescribing the drug caused the damage. Instead of placing a claim in one of the two categories, Feldman J.A. directed the courts to use the normal analysis of tort liability because the real question is whether the doctor owed a duty of care to the future child in the circumstances of the case.
[40] In Bovingdon, Feldman J.A. concluded that the doctor did not owe a duty of care to future children not to cause them harm by prescribing the fertility drug to the mother. The doctor owed a duty of care only to the mother to provide her with sufficient information to make an informed decision whether to take the fertility drug; so long as that was done, the decision whether to take the drug was entirely that of the mother.
[41] Justice Feldman viewed policy analysis as supporting her conclusion: a co-extensive duty of care to a future child would create a potential conflict of interest for the doctor, given the doctor’s duty to the mother. The policy of ensuring that women’s choice of treatment be preserved further supported her conclusion that the doctor owed no legal duty to the future children.
[42] Justice Feldman stated, at para. 73 of Bovingdon, that it is “undecided” whether the Ontario courts would necessarily dismiss every claim for wrongful life. She added that a proper consideration of that question would require the court to address the policy issue of whether such claims should exist in our law.
Paxton
[43] In Paxton, a doctor prescribed Accutane, an acne medication, to the mother of the appellant child on the understanding that she could not get pregnant while taking the medication. The doctor’s understanding – shared by the mother – was based on the appellant’s father having had a vasectomy four and a half years earlier, which had been successful up to the time the mother became pregnant with the appellant. The appellant, her parents, and her siblings sued the doctor.
[44] The trial judge found that the doctor owed a duty of care to the appellant pre-conception to not prescribe Accutane to her mother without taking all reasonable steps to ensure the mother would not become pregnant while taking the medication. However, the trial judge found that the doctor met the standard of care by relying on the father’s vasectomy as an effective form of birth control. Accordingly, the trial judge dismissed the appellant’s action against the doctor.
[45] The appellant appealed to this court. Justice Feldman, writing for the court, agreed that the appellant’s action against the doctor should be dismissed but did so because she concluded that the doctor did not owe a duty of care to the future child. She stated that, rather than deciding whether the appellant’s claim was for wrongful life, the court should determine whether the doctor owed the future child a duty of care in accordance with the Anns test.
[46] In Paxton, Feldman J.A. concluded that the potential for harm to a fetus while in utero from exposure to Accutane is reasonably foreseeable. However, the doctor and future child were not in a sufficiently “close and direct” relationship to make it fair and just that the doctor should owe a duty of care to the future child. The relationship was “necessarily indirect”: the doctor could not advise or take instructions from a future child.
[47] Justice Feldman also viewed policy considerations as militating against a finding of proximity. She pointed to the prospect of conflicting duties if the doctor were found to owe a duty of care to the future child as well as the mother, noting that these conflicting duties could well have an undesirable chilling effect on doctors.
[48] Justice Feldman further found that residual policy considerations at the second stage of the Anns analysis make it unwise to impose such a duty of care. In addition to the policy issues she identified in the first stage of the analysis, Feldman J.A. said that recognizing such a duty would interfere with the doctor’s existing legal obligation to the patient, which includes the women’s right to abort a fetus. Imposing a duty of care on a doctor to a future child would interfere with the exercise of that right.
Liebig
[49] Kevin Liebig suffered injuries during childbirth resulting in cerebral palsy. He, his parents, and other family members brought an action claiming against the hospital where he was born and the physicians and nurses who provided care up to and including his delivery. The plaintiffs claimed that Kevin’s injuries were caused by negligence (or breach of contract) immediately before and during the delivery process. The defendants refused to admit they owed a duty of care to Kevin in relation to his delivery. As a result, the plaintiffs brought a r. 21 motion for a declaration, before trial, that the defendants owed Kevin such a duty. The motion was granted, and the defendants appealed to this court.
[50] A five-person panel dismissed the appeal based on well-established law: an infant, once born alive, can sue for damages sustained as a result of the negligence of healthcare providers during labour and delivery. While this was sufficient to resolve the appeal, because the central point of contention between the parties related to Bovingdon and Paxton, the court went on to discuss those decisions.
[51] The court noted that both Bovingdon and Paxton dealt with the situation in which a doctor prescribed drugs to a woman who was not pregnant at the time. In Bovingdon, the drug was a fertility drug that increased the likelihood of bearing twins and, by extension, the risk of complications associated with the birth of twins. In Paxton, the drug was intended to treat the woman’s acne but could harm a fetus if conception were to occur while it was being taken.
[52] At para. 11 of Liebig, this court said that cases such as Bovingdon and Paxton involve claims which have been characterized as claims for wrongful life. It affirmed the direction in Bovingdon and Paxton that a court should proceed not by deciding whether to recognize a claim for wrongful life but, instead, by conducting an analysis of whether a doctor owed a separate duty of care to a future child. The concluding sentence in para. 11 of Liebig is particularly significant to this appeal so I set it out in full:
Both Bovingdon and Paxton hold that there is no duty of care to a future child if the alleged negligence by a healthcare provider took place prior to conception.
Issue #1: Did the motion judge err in failing to apply the “limited-form” Anns test to the facts of this case?
[53] The Appellants’ arguments relating to the motion judge’s Anns analysis are commingled in Issues #1 and #2. I will address their primary submission on Issue #1 and deal with the others in my analysis of Issue #2.
[54] The Appellants’ primary submission on Issue #1 is that the Anns analysis must begin with an accurate characterization of the proposed duty of care and the motion judge failed in that regard. They argue that the correct characterization of the proposed duty of care is as follows: the Respondent owed the Appellants a duty of care to not prescribe a clinically contraindicated fertility drug to their mother. Instead of examining the specific proposed duty of care that they asserted, the Appellants say the motion judge mischaracterized their claims as predicated on informed consent.
[55] I do not accept this submission.
[56] At para. 55 of the Reasons, the motion judge dealt with the Appellants’ assertion that their claim could be distinguished from Bovingdon – which was solely an informed consent case – because of their “additional allegation of negligence”. She correctly identified the Appellants’ additional allegation as “the prescription of the fertility drug to Dana Florence was contraindicated given her particular situation” (the “additional allegation”).
[57] The motion judge said that the difference between the Appellants’ claims and those of the twins in Bovingdon was a “distinction without a difference” because the additional allegation did not change the analysis necessary to determine if a duty of care was owed to the unconceived children. I agree.
[58] The Appellants’ argument on this issue conflates three related, but distinct, legal concepts: negligence, duty of care, and the obligations that arise from owing a person a duty of care.
[59] It is trite law that for a claim in negligence against a doctor to succeed, the plaintiff must establish that: the doctor owed the plaintiff a duty of care; the doctor breached the standard of care; and, the plaintiff suffered damages as a consequence of the breach.
[60] In this case, there is no question that the doctor-patient relationship between the Respondent and Ms. Florence gave rise to a duty of care. In fulfilling that duty of care, among other things, the Respondent was obliged to give Ms. Florence the information necessary for her to make an informed decision whether to take medications that the Respondent prescribed to her. On the pleadings, the Respondent allegedly breached the standard of care by failing to give Ms. Florence the information necessary to make an informed decision whether to take Serophene and by prescribing Serophene to Ms. Florence when it was contraindicated.
[61] The duty of care the Respondent owed to her patient, Ms. Florence, cannot be conflated with the Respondent’s obligation to meet the standard of care that she owed Ms. Florence. The additional allegation is relevant to whether the Respondent breached the standard of care; it is not relevant to whether she owed Ms. Florence a duty of care.
[62] For the same reason, the additional allegation is not relevant to whether the Respondent owed the Appellants, as unconceived babies, a duty of care. A consideration of the Anns analysis demonstrates this.
[63] To decide whether to recognize a novel duty of care, the court must conduct the two-stage Anns analysis. In the first stage, the court determines whether a prima facie duty of care should be recognized based on the reasonable foreseeability of harm and whether the proposed relationship is sufficiently close and direct. Policy considerations that affect the relationship are also considered in the stage one analysis. If the stage one analysis leads to the prima facie conclusion that a duty of care should be recognized, the court moves to the second stage. In the second stage, the court determines whether, despite having found a prima facie duty of care, there are residual policy reasons to reject such a duty. [^6]
[64] The focus of the Anns analysis is on the relationship between the parties at the relevant time. In this case, as the motion judge correctly recognized, the Appellants’ claims rest on the purported relationship between the Respondent and them, as unconceived babies, when the Respondent prescribed Serophene to their mother. That was the relationship which had to be examined, using the Anns analysis, to determine whether the Respondent owed the Appellants a duty of care.
[65] The additional allegation is not part of the proposed relationship. It is an alleged breach of the standard of care. That is, it is an allegation that the Respondent fell below the standard of care either by prescribing Serophene to Ms. Florence or by failing to give Ms. Florence the necessary information so she could make an informed decision whether to take the Serophene. As I have explained, a consideration of the additional allegation would be undertaken only if the court had found that the Respondent owed the Appellants, as unconceived babies, a duty of care.
Issue #2: Did the motion judge err in her application of Bovington and Paxton?
[66] The Appellants’ primary submission on Issue #2 is that the motion judge erred in concluding their claims were not viable in law based on Bovingdon and Paxton. They argue that the motion judge over-relied on the “superficial similarities” between this case and Bovingdon and, as a result, failed to conduct a meaningful Anns analysis. They point to the factual distinction between their claims – that prescribing Serophene to Ms. Florence was contraindicated – and those in Bovingdon and Paxton where the prescribed medication was appropriate (the “factual distinction”). According to the Appellants, there is no prospect of the doctor owing conflicting duties so the concerns identified in Bovingdon and Paxton are inapplicable.
[67] I do not accept this submission.
[68] As I explain in Issue #1, the factual distinction is a distinction without a difference for the purpose of determining whether the Respondent owed the Appellants, as unconceived children, a duty of care. Further, the similarities between this case and Bovingdon are far from superficial. I agree with the motion judge that the claims made in Bovingdon are very similar to those in this case for the purposes of the Anns analysis. In both, the doctor prescribed a fertility drug to the mother, allegedly having failed to provide her with sufficient information to make an informed decision whether to take the drug. While there is the additional allegation in this case, as I have explained, it is not relevant to whether the Respondent owed the Appellants, as unconceived babies, a duty of care – its relevance is to whether by prescribing Serophene, the Respondent breached the standard of care she owed to Ms. Florence.
[69] Nor are the similarities between this case and Bovingdon and Paxton superficial. In all three, the proposed duty of care was precisely the same: at the time that the doctor prescribed the medication to the mother, did the doctor owe the unconceived baby or babies a duty of care?
[70] Furthermore, having correctly viewed the Appellants’ claims as raising similar considerations in the duty of care analysis to those in Bovingdon and Paxton, the motion judge made no error in heavily relying on the reasoning in those cases. That reliance does not mean the motion judge’s analysis was superficial or lacking. Once she correctly concluded there was no meaningful difference between this case and Bovingdon and Paxton in terms of the duty of care analysis, the principle of stare decisis required the motion judge to adhere to those cases and apply the legal principles they established.
[71] Further and in any event, the motion judge conducted a meaningful Anns analysis. She accepted the Appellants’ contention that their claims met the reasonable foreseeability requirement in stage one: doctors who are considering prescribing a fertility medication should reasonably have the mother’s unconceived children in their contemplation. To raise a prima facie duty of care, however, the relationship between the Respondent and the Appellants, as unconceived babies, must also be sufficiently proximate – that is, the relationship must be sufficiently “close and direct”. Following the reasoning at para. 75 of Paxton, the motion judge found that it was not: the doctor cannot take instructions from nor advise an unconceived child. The motion judge also pointed to the policy considerations identified at para. 76 of Paxton, which inform the stage one analysis and militate against finding a duty of care: such a duty could create a conflict of interest in terms of the treatment offered to the woman and could place the doctor in an impossible position because of the competing duties owed.
[72] The Appellants contend that there would be no conflicting duties owed by the doctor in this case because the duty owed to Ms. Florence and the Appellants was one and the same: to not prescribe contraindicated and potentially dangerous medications. This argument arises from the same misunderstanding I identified in Issue #1. There is no “duty of care” to not prescribe contraindicated medication. Whether the medication is contra-indicated is not relevant when the court is determining whether the doctor owes a duty of care to unconceived babies as well as to the mother when the doctor is prescribing fertility medication.
[73] In any event, the Appellants’ contention is misguided. The conflict of interest consideration is part of the policy analysis in the stage one Anns analysis. Policy considerations are necessarily general in nature. In general, doctors would be placed in a conflict of interest position if they owed a duty of care to their patient and to that patient’s future, unconceived children. While there might be situations in which no such conflict arises in respect of a particular medication or treatment, that does not derogate from the validity of the general policy concern that doctors would be placed in an unworkable position due to the inherent conflict of interest that would arise if they were found to owe a duty of care both to their patient and that patient’s future children. The motion judge made no error in concluding that such a concurrent duty of care would place the doctor in an impossible position.
Issue #3: Did the motion judge err in characterizing the Appellants’ claims as ones for wrongful life and categorically denying them?
[74] The Appellants submit that, instead of applying the Anns analysis to determine if it was plain and obvious their claims were not actionable, the motion judge struck them simply because they are wrongful life claims. In making this submission, the Appellants rely on the following statement at para. 60 of the Reasons: “The appellate court in Ontario has rejected wrongful life claims, and the lower courts are bound by this jurisprudence” (the “Impugned Statement”).
[75] I do not accept this submission.
[76] The motion judge expressly acknowledged that this court has not said that a wrongful life claim could never be successful (para. 47 of the Reasons). She also referred to Feldman J.A.’s comment, at para. 73 of Bovingdon, that it is “undecided” whether the courts of this province would necessarily dismiss every claim for wrongful life.
[77] Further, as I explain above on Issue #2, the motion judge followed the dictates of this court and determined whether the Appellants’ claims are viable by conducting the Anns analysis. In conducting that analysis, she carefully and thoughtfully examined this court’s relevant jurisprudence.
[78] Accordingly, when the Impugned Statement is read in context, it is clear that it was simply the motion judge’s view of Ontario’s appellate jurisprudence coupled with her recognition that, as a lower court, she was obliged to follow that jurisprudence. She struck the Appellants’ claims not because she labelled them wrongful life claims but because, after conducting the Anns analysis, she found it was plain and obvious those claims are not viable in law.
VI. The Broader Issues
[79] The above analysis addresses the specific issues identified by the Appellants and explains why, in my view, the motion judge correctly applied the Anns analysis and determined that it is plain and obvious the Appellants’ claims cannot succeed. However, I have yet to address the parties’ overarching positions on appeal. I now deal with each in turn.
[80] The Appellants’ overarching position is that they should be afforded the opportunity to present a full factual and evidentiary record at trial before the court decides whether their claims should be recognized at law. They point to the factual difference between their case and the decided cases: Bovingdon and Paxton were solely informed consent cases whereas their claim is also based on the allegation that the prescribed medication was contraindicated. Further, the Appellants contend, the duty of care they assert has wide implications of public importance relating to the “prolific prescription of fertility drugs”, and the serious consequences borne by the public healthcare system and taxpayers as a result. In their submission, only a trial will enable the court to conduct a comprehensive Anns analysis, including due consideration of those policy concerns, to determine whether the Respondent owed them a duty of care in the specific circumstances of this case.
[81] I do not agree that a trial is necessary for the court to decide whether the Appellants’ claims should be recognized at law. The motion judge made no error in striking the Appellants’ claims before trial, without an evidentiary record.
[82] Rule 21 motions are intended to dispose of claims that have no chance of success because they have no basis in law. They are argued and decided strictly on the pleadings. In this case, there can be no further material facts that might emerge at trial which could alter the legal reality of the Appellants’ claims. The motion judge took the Appellants’ claims as pleaded, at their highest, and determined that it was plain and obvious that their claims are not viable in law because the Respondent could not owe them a duty of care, as unconceived babies, when prescribing fertility medication to their mother. I agree. That determination flows from this court’s jurisprudence; a full evidentiary record is not needed to determine the question of law raised on this pleadings motion.
[83] I conclude on the Appellants’ overarching submission by recalling the point that the Supreme Court made at para. 19 of Imperial Tobacco: striking claims with no reasonable prospect of success is essential to effective and fair litigation. It unclutters the proceedings, weeds out hopeless claims, and ensures that claims with some chance of success go to trial. Both plaintiffs and defendants benefit because they understand the parameters of the case and they can focus their efforts on viable claims. Rule 21 also serves an access to justice purpose: keeping litigants focussed on viable claims in civil litigation leads to reduced trial time, and a lessening of the associated costs, both human and financial.
[84] The Respondent’s overarching position on appeal is that, in Ontario, it is settled law that a physician does not owe a duty of care to a future child for alleged negligence that occurred pre-conception.
[85] I begin by observing that, based on Bovingdon, it is settled law in Ontario that a physician owes no duty of care to future children when prescribing fertility drugs to the mother. That, however, does not address the broader proposition of law which the Respondent asks this court to affirm.
[86] Against that broad proposition, the Appellants point to para. 73 of Bovingdon, where Feldman J.A. said that it “is undecided whether the courts of this province would necessarily dismiss every claim for ‘wrongful life’” and that a proper consideration would require the courts to “address the policy issue of whether such claims should exist in our law”. And, at para. 32 of Paxton, Feldman J.A. reiterated that where the proposed duty of care is novel, the court must conduct the Anns analysis to determine whether such a duty of care should be recognized.
[87] However, at para. 11 of Liebig, a five-person panel of this court stated that both Bovingdon and Paxton hold that “there is no duty of care to a future child if the alleged negligence by a healthcare provider took place prior to conception” (the “Statement”). As a member of the panel that decided Liebig, I agreed with the Statement then and I agree with it now.
[88] I recognize that the Statement in Liebig is obiter. Liebig was decided on the settled law principle that an infant born alive may sue for damages sustained as a result of the negligence of healthcare providers during labour and delivery. Nonetheless, the Statement reflects the considered opinion of a five-person panel of this court.
[89] Further and importantly, the Anns analysis conducted by the motion judge in this case shows that, based on this court’s jurisprudence, the claims by unconceived babies against physicians for alleged negligence that occurred pre-conception will necessarily result in a determination that the claims are not viable in law. While the reasonable foreseeability requirement will normally be met, the policy considerations at both the first and second stages of the Anns analysis militate against finding such a duty of care. Those same proximity and policy considerations exist whenever the proposed duty of care by a future child is based on a physician’s alleged negligence that occurred pre-conception.
[90] Stare decisis is the policy of the courts to stand by precedent and not disturb settled points of law. Once a principle of law has been held to be applicable to a certain state of facts, the courts are to adhere to that principle, provided the facts of the case before them are substantially the same. Accordingly, in my view, in Ontario, it is settled law that a physician does not owe a duty of care to a future child for alleged negligence that occurred pre-conception.
VII. Disposition
[91] For these reasons, I would dismiss the appeal with costs to the respondents fixed at the agreed-on sum of $15,000, all inclusive.
“E.E. Gillese J.A.”
“I agree. J.C. MacPherson J.A.”
Fairburn A.C.J.O. (dissenting):
A. Overview
[92] My colleague’s reasons, at para. 1, commence with the following helpful question:
Is it settled law, in Ontario, that a physician does not owe a duty of care to a future [^7] child for alleged negligence that occurred pre-conception?
[93] In my view, the determinative question on this appeal is slightly different. This difference, however, is important because it leads to a different conclusion about the correct disposition of this appeal. I would pose the question as follows:
Is it settled law, in Ontario, that there are no circumstances in which a physician could owe a duty of care to a future child for alleged negligence that occurred pre-conception?
[94] As I will explain, on my reading of the relevant caselaw, the existing jurisprudence leaves open the possibility that there could be circumstances in which a physician would owe a duty of care to a future child for alleged negligence that occurred pre-conception: see Bovingdon v. Hergott, 2008 ONCA 2, 88 O.R. (3d) 641, leave to appeal refused, [2008] S.C.C.A. No. 92; Paxton v. Ramji, 2008 ONCA 697, 92 O.R. (3d) 401, leave to appeal refused, [2008] S.C.C.A. No. 508; and Liebig v. Guelph General Hospital, 2010 ONCA 450, 321 D.L.R. (4th) 378.
[95] As I will also explain, I respectfully disagree that this case is necessarily on all fours with Bovingdon. Remaining focused on the fact that this is an appeal from the dismissal of a claim under r. 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, in my view, it is arguable that this case is distinguishable from Bovingdon because, unlike in Bovingdon, the fertility drug in this case is said to have been “contraindicated”. While I agree with my colleague that whether a drug is “contraindicated” or not is relevant to the issue of standard of care, as I will explain, it may also be relevant to whether there exists a duty of care and, more specifically, to the question of proximity.
[96] Given that it is not plain and obvious that the claim of Brody, Cole, and Taylor Florence, the appellants, will fail, their claim should not have been struck under r. 21 of the Rules of Civil Procedure. Therefore, I would allow the appeal and order that the matter proceed to trial.
B. The Pleadings and the Word “Contraindication”
[97] My colleague sets out a helpful review of the legal underpinnings and policy rationale for the operation of r. 21 of the Rules of Civil Procedure. I have nothing to add to that review. Rule 21 motions are indeed essential to the administration of justice, ensuring that only those matters that should go to trial do go to trial: see R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 19.
[98] As we must on a r. 21 matter, I accept as true the facts as pleaded in the Amended Statement of Claim of the appellants and Dana Florence, the appellants’ mother. Those facts include that Dr. Susan Benzaquen, the respondent, prescribed Serophene to the appellants’ mother. Serophene is a fertility drug that increased the chances of carrying multiple fetuses, which in turn increased the chances of premature births and of serious health-related complications for any children who survived after childbirth. That is the precise chain of events that occurred in this case. The appellants were conceived in multiples, born prematurely, and, as the motion judge noted, “it is not disputed that they have serious disabilities as a result of their premature birth.”
[99] The Amended Statement of Claim essentially alleges two types of negligent conduct by the respondent: (1) the failure to provide the appellants’ mother with “all of the information necessary to make a considered and informed decision regarding the use of Serophene”; and (2) the “recommendation and prescription” of Serophene that “was contraindicated under the circumstances”. [^8]
[100] I understand the appellants to be using the term “contraindicated” to mean that, in light of the particular circumstances involved, no non-negligent physician could have prescribed the fertility drug in the first place. While it seems only logical that there could be different degrees of “contraindication” in the medical sphere, without the benefit of expert evidence at a trial, I would not venture down that path. For now, this being an appeal from the dismissal of a claim under r. 21 of the Rules of Civil Procedure, and without the benefit of trial evidence, I would simply note my understanding of the pleadings at their highest: that “under the circumstances” of this case, no physician acting in a non-negligent manner could have prescribed Serophene to the appellants’ mother. In other words, that the alleged “contraindication” meant that the respondent should not have prescribed Serophene to the appellants’ mother, without exception or qualification.
[101] I wish to make clear at the outset that these reasons are directed only at the second form of alleged negligent conduct: the allegation involving the prescription of a “contraindicated” fertility drug. As for the first alleged form of negligence, the failure to provide the appellants’ mother with all of the necessary information to make an informed decision, I join suit with my colleague and the motion judge. If this were a case only about informed consent, then this court’s jurisprudence – primarily Bovingdon – would make it plain and obvious that the appellants’ claim could not succeed. Therefore, it is only the second form of alleged negligent conduct that these reasons are addressing: that it was negligent to prescribe Serophene in the first place because it “was contraindicated under the circumstances”.
[102] Regarding the particular circumstances of this case, the pleadings suggest that the respondent failed to conduct appropriate tests, examinations, and “diagnostic evaluations to determine whether or not [the appellants’ mother] in fact had anovulatory cycles, or any other conditions that may have caused concern regarding her intended conception.” The pleadings also refer to the following circumstances that could point toward the “contraindicated” nature of Serophene in this case: the relative youth of the appellants’ mother; the very short time that she had been attempting to conceive; and “other indicators present in [the appellants’ mother’s] clinical condition which suggested that the use of Serophene was unreasonable under the circumstances.”
[103] As my colleague notes, the appellants assert that the respondent owed a concurrent duty of care to their mother and to them to not prescribe to their mother a “contraindicated” and potentially dangerous fertility drug that the respondent knew, or ought to have known, could cause harm not only to their mother but also to them.
C. Analysis
[104] Before turning to the relevant caselaw from this court, it is helpful to recall the tort law principles defining a duty of care.
[105] At stage one of the Anns/Cooper test, the court will consider whether there is a prima facie duty of care: Anns v. Merton London Borough Council, [1977] UKHL 4, [1978] A.C. 728; Cooper v. Hobart, [2001] 3 S.C.R. 537. For there to be a prima facie duty of care, both proximity and reasonable foreseeability of the harm must be established: Cooper, at paras. 30-31. In 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35, 450 D.L.R. (4th) 181, the Supreme Court of Canada had the following to say about proximity, at para. 31:
A party may seek “to base a finding of proximity upon a previously established or analogous category” (*Deloitte & Touche v. Livent Inc. (Receiver of)*, [2017] 2 S.C.R. 855], at para. 28). But where no established proximate relationship can be identified, courts must undertake a full proximity analysis in order to determine whether the close and direct relationship – which this Court has repeatedly affirmed to be the hallmark of the common law duty of care – exists in the circumstances of the case (ibid., at para. 29; *Saadati v. Moorhead*, [2017] 1 S.C.R. 543], at para. 24; Cooper, at para. 32). [Emphasis in original.]
[106] Where there is no established or analogous category, the court will undertake a full proximity analysis. To determine whether a “close and direct” relationship exists, courts must examine all relevant factors arising from the relationship between the plaintiff and the defendant: *Deloitte & Touche v. Livent Inc. (Receiver of)*, [2017] 2 S.C.R. 855, at para. 29. Relevant factors include expectations, representations, reliance, and the property or other interests involved, as well as any statutory obligations: Deloitte, at para. 29. The court will also focus on broad considerations of policy arising from the particular relationship between the plaintiff and the defendant at stage one of the Anns/Cooper analysis: Edwards v. Law Society of Upper Canada, [2001] 3 S.C.R. 562, at para. 9.
[107] At stage two of the Anns/Cooper test, the court will consider whether, despite finding a prima facie duty of care, there are residual policy reasons that justify rejecting a duty of care: Edwards, at para. 10. These are not concerned with the relationship between the parties, “but with the effect of recognizing a duty of care on other legal obligations, the legal system and society more generally”: Cooper, at para. 37.
[108] I turn now to this court’s decisions in Bovingdon, Paxton, and Liebig, which I conclude determine that this case should proceed to trial.
(1) This Court’s Jurisprudence
(a) The Bovingdon Decision
[109] My colleague, at para. 85 of her reasons, maintains that Bovingdon resolves this case: “based on Bovingdon, it is settled law in Ontario that a physician owes no duty of care to future children when prescribing fertility drugs to the mother.” While I accept that Bovingdon has resolved most fertility drug cases, I do not agree that Bovingdon is quite as far reaching as is suggested in my colleague’s reasons.
[110] In Bovingdon, the mother was prescribed the fertility drug Clomid. The fertility drug led to the conception of twins and their premature birth, which left them with serious disabilities. The jury concluded that the doctor was negligent for failing to provide the necessary information to the mother, and that had she been told of all the risks, she would not have taken the fertility drug. The trial judge ruled that, as a matter of law, the doctor owed a duty of care not only to the mother but also to the future twins, such that they were entitled to damages in their own right.
[111] On appeal, this court concluded that the trial judge erred and that the doctor did not owe a duty of care to the future twins. Feldman J.A., who authored the decision, rejected the two-category approach that has been used by other courts when deciding whether claims of future children should be recognized: (1) claims where the disabilities were caused by the wrongful act or omission of another; and (2) those where, but for the wrongful act or omission, the child would not have been born: see Lacroix (Litigation Guardian of) v. Dominique, 2001 MBCA 122, 202 D.L.R. (4th) 121, at para. 24, leave to appeal refused, [2001] S.C.C.A. No. 477. Claims falling within the latter category had historically been termed “wrongful life” claims. Many courts had historically rejected such claims on the basis that attempting to compensate a person for being alive is contrary to public policy. Feldman J.A. rejected this categorical approach and instead analyzed the claims “through the normal analysis of tort liability”: Bovingdon, at para. 61.
[112] Before analyzing Bovingdon to explain why I do not see it as dispositive of the question on appeal, I pause to comment upon the use of the term “wrongful life”. It finds its genesis in early jurisprudence and appears to have become a shorthand way of referring to those cases involving claimants who were conceived often as a result of the alleged negligent act. Despite its common usage to this day, I do not use this term. In my respectful view, it fails to accurately capture and can inadvertently distort the true nature of the claims advanced by children born with disabilities that are caused by a physician’s alleged negligent acts.
[113] These children’s claims are not based on the fact of their birth but on the fact of their life-altering disabilities. The true essence of what are often referred to as “wrongful life” claims is not that the claimants are alive but that the claimants have been encumbered by profound life-altering disabilities. This case makes the point. The appellants’ claim is not wound up in some kind of objection that they were born and are now here living among us. Rather, their claim reflects that they are individuals, like the rest of us, who have been encumbered with significant disabilities requiring “extraordinary care and services including assistance with all activities of daily living”, as stated in their Amended Statement of Claim.
[114] Coming back over to Bovingdon, Feldman J.A. rejected the previous binary approach that led to the dismissal of all claims where, but for the alleged negligent act, the child would not have been born. In place of that approach, Feldman J.A. insisted upon conducting a proper Anns/Cooper analysis.
[115] The preponderance of expert evidence at the trial in Bovingdon established that prescribing Clomid to a woman in Ms. Bovingdon’s circumstances met the standard of care, as long as she understood the risks of conceiving multiples, prematurity, and consequent possible damage. In these circumstances, it was the mother’s choice to make, and the focus was upon whether the mother was given adequate information to make an informed choice.
[116] Therefore, unlike this case, the fertility drug in Bovingdon was “not contraindicated”: Bovingdon, at para. 59. Indeed, while explaining why the doctor owed no duty of care to the future twins in Bovingdon, Feldman J.A. contrasted the situation before her with a situation where a drug may be “contraindicated”, at paras. 68-69:
Because the doctor’s duty with this type of drug is only to provide information sufficient to allow the mother to make an informed choice, it cannot be said that the children have a right to a drug-free birth. Nor can the doctor owe a duty to the children that is co-extensive with his duty to the mother. To frame the duty in that way is to overlook the fact, as discussed above, that the choice is the mother’s; she is entitled to choose to take the drug and risk conceiving twins without considering their interests. If she does, the children have no complaint against her or the doctor.
In contrast, where a drug is contraindicated for a pregnant woman, the standard of care for the doctor may be either not to prescribe the drug or to ensure that the woman is taking all appropriate precautions to prevent pregnancy. [Emphasis added.]
[117] Feldman J.A. then explained that as a matter of policy, a doctor cannot owe a co-extensive duty of care to a future child where the standard of care simply requires a doctor to give a woman the information necessary to make an informed decision about how to proceed, such as taking a fertility drug: Bovingdon, at para. 71.
[118] Importantly, while concluding that “in the circumstances of this case, there could be no breach of duty to the twins and no right for them to claim damages”, Feldman J.A. left open the question as to whether in different circumstances, a doctor may owe a duty of care to a future child: Bovingdon, at para. 74 (emphasis added). Feldman J.A. made it clear in Bovingdon, at para. 73, that she was deciding the case narrowly, specifically noting that “it is undecided” whether the courts in Ontario would “necessarily dismiss” every claim where, but for the wrongful act or omission, the child would not have been born. Feldman J.A. went on to note that considering that question “would require the court to address the policy issue of whether such claims should exist in our law”: Bovingdon, at para. 73 (emphasis added).
[119] Because the issue was “obviated” in Bovingdon, though, there was no need to resolve the broader issue. As Feldman J.A. put it in Bovingdon, at para. 73:
In this case, the issue is obviated because I have found that although the doctor breached his duty of care to the mother to give her full information to allow her to make an informed decision whether to take Clomid, he owed no duty of care to the unborn children when prescribing Clomid to a woman who wished to become pregnant.
[120] Therefore, I read Bovingdon as having expressly left open the question as to whether courts would reject all claims by future children where the alleged negligence occurred pre-conception. Bovingdon therefore leaves open the following question in this case: could a doctor owe a duty of care to a future child in circumstances where a “contraindicated” drug, including a “contraindicated” fertility drug, is prescribed?
[121] In my view, the difference between a drug being “indicated” and a drug being “contraindicated” could have a serious impact on determining whether a physician owes a duty of care to a future child. That is why there needs to be a trial where the issues of “contraindication” can be explored with the assistance of expert evidence.
[122] If it turns out to be true that no physician could have prescribed Serophene in the circumstances of this case, then the concerns over conflicting duties, as expressed in Bovingdon, fall away because the future mother and future children’s interests would align.
[123] The potential for conflicting duties was a significant concern in Bovingdon and a central reason to find that there was no proximity and no duty of care owed to the future child: “Where the standard of care on the doctor is to ensure that the mother’s decision is an informed one, a co-extensive duty of care to a future child would create a potential conflict of interest with the duty to the mother”: Bovingdon, at para. 71. In contrast, where the standard of care on the doctor is not to prescribe a drug at all, as opposed to making sure the mother is in a position to make an informed decision, then the “co-extensive duty of care to a future child” arguably does not “create a potential conflict of interest with the duty to the mother.”
[124] Another very real concern expressed in Bovingdon was that the mother’s right to choose would be undermined by imposing a duty of care on the doctor to the future twins. To be clear, I agree that the law must protect a woman’s absolute right to make informed choices about her own body, including informed choices about what drugs to consume. As Feldman J.A. put it in Bovingdon, at para. 68:
[T]he choice is the mother’s; she is entitled to choose to take the drug and risk conceiving twins without considering their interests. If she does, the children have no complaint against her or the doctor.
[125] This case, however, is arguably different than Bovingdon precisely because of the importance of a woman’s choice. Here, it is alleged that the fertility drug may have been “contraindicated”, such that it never ought to have been prescribed to the appellants’ mother as it was “unreasonable” to do so “under the circumstances.” If the evidence at trial bears this out, then there was no choice for the appellants’ mother to make. In that scenario, the “choice” given by the respondent is no choice at all, since the fertility drug should never have been prescribed. Therefore, choice is no longer relevant to imposing a co-extensive duty of care on the respondent to both the appellants and their mother.
[126] I accept that there may be downsides to defining a doctor’s duty of care based on the fact of “contraindication”. However, in my view, this is an issue to be decided at trial, informed by expert evidence – evidence about the extent and nature of the alleged “contraindication” in this case.
[127] Accordingly, at this juncture of my reasons, I wish to reinforce that my observations are squarely rooted in the fact that this is an appeal from a dismissal of the appellants’ claim under r. 21 of the Rules of Civil Procedure. It is within that context that I respectfully disagree that it is plain and obvious, based on Bovingdon, that a physician could never owe a duty of care to future children when prescribing “contraindicated” fertility drugs to the mother. I am not saying that a doctor will owe that duty of care. I am saying that a trial is necessary to determine that question in this case because, in my view, Bovingdon has not only not resolved the issue but it has explicitly left the issue open for future consideration.
(b) The Paxton Decision
[128] Moreover, I do not read this court’s later decision in Paxton as closing the door that was left open in Bovingdon.
[129] In Paxton, the trial judge concluded that the doctor owed a duty of care to the future child of a woman of childbearing potential seeking Accutane for the treatment of acne. Accutane is a teratogenic drug that may cause birth defects if taken during pregnancy. Because of this, the drug manufacturer had developed a “Pregnancy Protection Mainpro-C Program” that doctors are to implement before prescribing Accutane to women of childbearing potential, in order to try to ensure they will not become pregnant while taking the drug. In Paxton, the doctor had discussed with the woman the necessity that she not become pregnant while taking the drug. He had also determined that her husband had an effective vasectomy four and a half years prior and that the patient had no other sexual partners. He had also given her a pregnancy test that came back negative, following which the patient began to take the drug. In short, Accutane was a drug that doctors were specifically permitted to prescribe to women if they took a number of necessary precautions.
[130] Once again, this court overturned the trial judge’s decision on the basis that the doctor owed no duty of care to the future child.
[131] As in Bovingdon, Feldman J.A., who also authored Paxton, reiterated that the question is not whether the claim should be characterized as one for “wrongful life”. Rather, the court should apply a normal tort analysis, including a proper duty of care analysis.
[132] In determining that the claim did not fall within, and was not analogous to, a recognized duty of care, Feldman J.A. considered prior case law, including Bovingdon. Interestingly, Feldman J.A. specified that the duty of care question left open was where, as in the case now before us, it was alleged that the drug was “contraindicated”, albeit in the context of a teratogenic drug. She noted in Paxton, at para. 52, the question left open in Bovingdon:
The court left open the question whether a doctor would owe a duty of care to a future child where the drug being prescribed to the female patient was contraindicated during pregnancy and would cause damage to a fetus ….
[133] Importantly, Feldman J.A. also confirmed in Paxton, at para. 53, that it is an open question in Canada whether a doctor can be in a proximate relationship to a future child who was not yet conceived at the time of the impugned conduct:
Having reviewed these authorities, I believe it is fair to say that there is no settled jurisprudence in Canada on the question whether a doctor can be in a proximate relationship with a future child who was not yet conceived or born at the time of the doctor’s impugned conduct. The Supreme Court of Canada has not had the opportunity to address the issue. The proposed duty of care thus does not fall within an established category of relationship giving rise to a duty of care. [Emphasis added.]
[134] Having concluded that the claim did not fit within an existing or analogous category, Feldman J.A. undertook a full Anns/Cooper analysis.
[135] While Feldman J.A. concluded that the proximity requirement was not met in Paxton, I do not read her decision as resolving once and for all what Bovingdon left open.
[136] In Paxton, Feldman J.A. explained at stage one of the Anns/Cooper analysis that policy considerations militated against a finding of proximity in the circumstances involved in that case.
[137] First, Feldman J.A. came back to the concept of conflicting duties, which she said could have an undesirable chilling effect on doctors: “the doctor could be put in an impossible conflict of interest between the best interests of the future child and the best interests of the patient in deciding whether to prescribe a teratogenic drug or to give the patient the opportunity to choose to take such a drug”: Paxton, at para. 66. As I have already suggested, the situation may be different where a drug or other treatment is “contraindicated”, and so the question is not about informed choice but about whether the drug should have been offered in the first place.
[138] Second, as another policy consideration, Feldman J.A. noted that a doctor’s relationship with a future child is necessarily indirect, as the doctor acts by providing advice and information to the mother. Again, whether this consideration would come into play where a drug is “contraindicated” is arguable. As I will explain below, the fact that the doctor acts by providing advice and direction to the mother does not necessarily preclude a proximate relationship between the doctor and the future child in circumstances involving “contraindicated” drugs.
[139] Feldman J.A. also found that residual policy considerations at the second stage of the Anns/Cooper test made the imposition of the proposed duty unwise. In particular, she found that recognizing a duty of care by a doctor to a future child of a female patient would affect the doctor’s existing legal obligation to the patient.
[140] I recognize and accept these real and important residual policy considerations that arise in a case like Paxton. However, they do not necessarily resolve the particular issues in this case. In my view, it remains an open question as to whether the same policy considerations necessarily apply in a situation where a drug is “contraindicated” and the potential for conflicting duties to the mother and future child is at least arguably foreclosed.
[141] On my reading of Paxton, it does not determine that a physician could never owe a duty of care to a future child who was not yet conceived at the time of the impugned conduct. Concluding this section of my reasons, I would simply reinforce what I said about the impact of Bovingdon on this appeal. I am not saying that a doctor will owe that duty of care. I am saying that a trial is necessary to determine that question in this case because, in my view, Paxton has not only not resolved the issue, but it has explicitly left the issue open for future consideration.
(c) The Liebig Decision
[142] The respondent cites to para. 11 of Liebig to argue that this court has determined that no duty of care is owed to a future child. I do not agree with this broad interpretation of Liebig.
[143] For ease, I reproduce para. 11 of Liebig here:
Cases in the vein of Bovingdon and Paxton, which involve claims made by infants yet to be conceived at the time the alleged negligence occurred, have been characterized as and rejected by other courts as claims for “wrongful life”: see Lacroix (Litigation guardian of) v. Dominique (2001), 2001 MBCA 122, 202 D.L.R. (4th) 121 (Man. C.A) leave to appeal denied [2001] S.C.C.A. No. 477; McKay v. Essex Area Health Authority, [1982] 1 Q.B. 1166 (Eng. C.A.). In Bovingdon and Paxton, however, this court held that the “wrongful life” approach ought not to be used. The court proceeded not by determining whether to recognize a claim for “wrongful life”, but by conducting an analysis of whether a doctor owed a separate duty of care to a future child. Both Bovingdon and Paxton hold that there is no duty of care to a future child if the alleged negligence by a health care provider took place prior to conception. [Emphasis added.]
[144] My colleague agrees with that statement, and I do as well. That is precisely what Bovingdon and Paxton held in those specific cases.
[145] In my view, the statement made in Liebig, at para. 11, must be read in light of the specific issue in Liebig. Liebig was a case about whether a child who was injured immediately before and during the delivery process could bring a claim against the medical professionals who allegedly acted negligently during that process. The trial judge held that the child could bring such a claim.
[146] The hospital, the physicians, and the nurses in Liebig argued that Bovingdon and Paxton had changed the very long and well-established line of cases holding that an infant, once born alive, may sue for damages sustained as a result of the negligence of health care providers during labour and delivery.
[147] In a brief judgment, a five-judge panel of this court rejected that argument and upheld the decision below. The child was permitted to proceed with the claim. I read para. 11 of Liebig as explaining why Bovingdon and Paxton changed nothing in relation to that already established duty of care to children who are born alive following negligent acts committed during the delivery process.
[148] The reference at para. 11 of Liebig to the fact that Bovingdon and Paxton held that “there is no duty of care to a future child if the alleged negligence by a health care provider took place prior to conception” is an accurate summary of those cases. That is indeed what they decided in the context of the specific factual circumstances of those cases. That observation was sufficient to refute the suggestion in Liebig that somehow the result of Bovingdon and Paxton was to overturn the labour and delivery line of cases in which there clearly is a duty of care to the baby as well as to the mother.
[149] In my view, what Liebig did not do, and actually could not do in a case that affirmed the duty of care owed by a doctor to the baby in the context of labour and delivery, was foreclose what Bovingdon, at para. 73, specifically acknowledges was left “undecided” and what Paxton specifically left open: “whether a doctor can be in a proximate relationship with a future child who was not yet conceived or born at the time of the doctor’s impugned conduct”: Paxton, at para. 53. In other words, Liebig should not be read as resolving what Bovingdon and Paxton purposely left open for future determination.
[150] My understanding of the Liebig decision is reinforced by the passages that follow para. 11 of Liebig, including the court’s caution, at para. 13, that both Paxton and Bovingdon have to be “read in the light of their precise facts, the issues they addressed, and in a proper legal context”. Further, the court gave the following caution, which is apposite to this case, at para. 19 of Liebig:
Cases may well arise that do not fit neatly under any of the established principles and, on occasion, the established principles may appear to be in conflict. This situation is characteristic of the common law, which does not provide a comprehensive, over-arching theory of liability that is capable of deciding every case or dealing with every possibility or contingency. Principles emerge, take shape and are reconciled on the basis of fact and context-specific judicial decisions, aided by scholarly commentary. A common law court should be cautious about laying down principles or rules that are not required to decide the case before it and ordinarily should limit itself to the requirements of the case at hand [.] [Emphasis added; citations omitted.]
[151] This passage from Liebig captures my position in this case. While it may be that after a full trial, and a consideration of the facts and the context of this case, it will be determined that the respondent owed no duty of care to the appellants, the appellants should nevertheless be permitted to proceed to trial to have the matter determined on the facts and the context of this case.
D. The Proximity Analysis
[152] Before concluding, I will briefly respond to my colleague’s comments on proximity.
[153] My colleague accepts the motion judge’s Anns/Cooper analysis as correct. The motion judge’s reasons for concluding that there was not a proximate relationship between the respondent and the appellants include that a doctor cannot take instructions from or advise the future child. I do not accept the suggestion that the proximity between a physician and the future child is necessarily broken for that reason. If that were enough to break the relationship of proximity, then Liebig and cases like Liebig are wrongly decided as a physician cannot advise or seek instructions from a baby in the delivery process either: see Liebig, at paras. 6-7; Crawford v. Penney (2003), 14 C.C.L.T. (3d) 60 (Ont. S.C.), aff’d 2004 ONCA 22314, 26 C.C.L.T. (3d) 246 (Ont. C.A.), leave to appeal refused, [2004] S.C.C.A. No. 496; Commisso v. North York Branson Hospital, 2003 ONCA 48421, 168 O.A.C. 100 (C.A.), at paras. 21-23; Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925, at para. 21.
[154] The motion judge also pointed to the fact that imposing a duty of care could create a conflict of interest, putting the doctor in an impossible position because of competing duties owed. As I have discussed, such a concern may fall away if the drug is “contraindicated”, in the sense that it ought never have been prescribed to the future mother.
[155] I would also note, not in an effort to resolve the proximity analysis but to demonstrate it is worth a closer look, that other common law jurisdictions have recognized a duty of care owed by a physician to the future child of the physician’s patient. In X and Y (By Her Tutor X) v. Pal, [1991] NSWCA 302, 23 N.S.W.L.R. 26, an Australian case, physicians failed to diagnose the patient’s syphilis, which caused physical and developmental disabilities for her future child. The court found that the physicians owed a duty of care not only to the mother but to all those in the class of persons put at risk of harm by the negligent conduct of the physicians. This included the future child who was not conceived at the time of the initial negligent act. The mother’s initial physician should have foreseen that the failure to exercise due care in respect of the mother could have led to harm to “children later born to her”: X and Y, at p. 42. As the court found, those potential children were “within the category of persons to whom the doctor was in a relevant relationship of proximity”: X and Y, at p. 44. See also Erin L. Nelson, “Prenatal Harm and the Duty of Care” (2016) 53:4 Alta. L. Rev. 933, at p. 949.
E. Conclusion
[156] In conclusion, I do not read Bovingdon, Paxton, and Liebig as settling conclusively that there could never be any circumstances in which a physician owes a duty of care to a future child where the alleged negligence takes place prior to conception. As I have explained, I read those decisions as explicitly leaving the door open – even if just a crack – to the possibility that such a duty could exist.
[157] I also do not accept the narrower proposition that, based on Bovingdon, it is settled law in Ontario that a physician could never owe a duty of care to future children when prescribing fertility drugs to the mother. I respectfully part ways with my colleague’s view that whether a drug is “indicated” or “contraindicated” represents a factual “distinction without a difference”, one that cannot possibly inform a relationship of proximity between the respondent and the appellants. While I would not suggest at this stage that it is a distinction with a dispositive difference, I would say that the matter needs to be explored with the benefit of a full record at trial, including expert evidence to amplify upon the concept of “contraindication”.
[158] Thus, on my reading of the relevant caselaw, it cannot be said that the claim of the appellants, who are all individuals in their own right, has no chance of success. Therefore, I would allow the appeal, set aside the dismissal of the claim on the r. 21 motion, and order that this matter proceed to trial.
Released: July 22, 2021 “J.M.F.” “Fairburn A.C.J.O.”
Footnotes
[^1]: As minors, the Appellants’ claims are brought by their mother, in her role as their litigation guardian. [^2]: The Action was commenced by Notice of Action issued March 25, 2011. It was originally brought against Dr. Benzaquen and Dr. Barrett. Dr. Barrett was the obstetrician who managed Ms. Florence’s pregnancy. On June 4, 2018, the Action was dismissed, on consent, as against Dr. Barrett. [^3]: To the extent that the Appellants suggest that this court indicated, at para. 24 of Haskett v. Equifax Canada Inc., 2003 ONCA 32896, 224 D.L.R. (4th) 419 (Ont. C.A.), that something other than the two-stage Anns analysis must be applied to determine whether a duty of care will be recognized, I disagree. This court affirms, at para. 24 of Haskett, that the two-stage Anns analysis must be applied on a r. 21 motion to determine whether it is “plain and obvious” that no duty of care can be recognized. If it is not plain and obvious, then the action can proceed, and the issue will be determined at trial. [^4]: The motion judge relied on Montreal Tramways Co. v. Léveillé, [1933] S.C.R. 456, and Liebig. [^5]: See para. 9 above for the meaning the Appellants ascribe to this term. [^6]: Syl Apps Secure Treatment Centre v. B.D., [2007] 3 S.C.R. 83; Paxton, at para. 33. [^7]: Like my colleague, for the purposes of this decision, I will use the term “future child” to refer to a child who is not yet conceived at the time of the alleged negligence but who is later born alive. [^8]: I pause here to note that these allegations sit somewhat uneasily together, the first resting on an implicit suggestion that prescribing Serophene was an available option in the circumstances, and the second resting on the explicit suggestion that Serophene should never have been an available option in the first place.