CITATION: McGee v. Dr. Farazil, 2023 ONSC 3671
DIVISIONAL COURT FILE NO.: DC-223-2762
DATE: 2023/06/22
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Ellies R.S.J., Sachs and Gibson JJ.
BETWEEN:
FERN MCGEE
Respondent/Plaintiff
– and –
DR. CHRISTINE FARAZLI and C. FARAZLI MEDICINE PROFESSIONAL CORPORATION
Appellants/Defendants
Josh Hanet and Rachel McMillan, for the Appellants/Defendants
Evatt Merchant and Anthony Tibbs, for the Respondent/Plaintiff
HEARD at Ottawa by videoconference: May 29, 2021
H. Sachs J.
Overview
[1] The Appellant, Dr. Christine Farazli, operates an endoscopy clinic in Ottawa (the “Clinic”). Following a regulatory inspection of the Clinic, the local public health authority undertook a notification process of all patients who had undergone an endoscopy at the Clinic between 2002 and 2011. Approximately 6800 patients received a letter advising that, as a result of a lapse in the sterilization protocols at the Clinic, there was a very low risk that they had been exposed to Hepatitis B, Hepatitis C, or HIV (the “Notification Letter”). Patients were further advised that blood testing was available to assess their viral status. On completion of its review, Ottawa Public Health (“OPH”) confirmed that there was “no transmission of Hepatitis B or C or HIV…within the Clinic where the lapse occurred.”
[2] Fern McGee was one of the patients who received the Notification Letter. She underwent the recommended testing and was advised that she had not been exposed to Hepatitis B or C or HIV. She commenced a class action seeking compensation for exposure to enhanced risk of infection and for the shock, trauma and inconvenience she experienced when she received the Notification Letter and the testing that followed (75% of those patients who received the Notification Letter chose to undergo a blood test).
[3] On July 12, 2022, MacLeod R.S.J. certified the Plaintiff’s action (the “Certification Order”). On December 2, 2022 the Divisional Court granted leave to appeal the Certification Order on the following issues:
(i) Whether the certification judge erred by certifying liability for increased risk as a common issue. According to the Defendants, an action for increased risk cannot be certified without proof that the Defendants’ conduct had caused an actual infection. The Defendants allege that such proof is not available and there is no possibility that it will become available.
(ii) Whether the certification judge erred by certifying issues relating to causation and damages in the absence of evidence as to a workable methodology for determining those issues on a class-wide basis.
(iii) Whether, if causation, damages or increased risk should not have been certified as common issues, a class proceeding remains the preferable procedure.
(iv) Whether the certification judge erred by certifying a family class of plaintiffs in view of the fact that the pleadings contain no reference to derivative claims under the Family Law Act, R.S.O 1990, c. F.3.
Did the Certification Judge Err by Certifying an Action for Increased Risk?
The Evidence Concerning Actual Infections as a Result of the Alleged Lapses by the Clinic
[4] As the certification judge noted in his reasons, “some individuals who were tested did test positive for one of the blood borne diseases, but after DNA analysis of the infections, OPH was unable to establish or confirm any transmission of infection within the clinic where the lapse occurred. Infection in the populations of people who were tested may have been coincidental”. Thus, as of the date of the certification motion no one who was found to be infected in the testing that followed the Notification Letter could establish that their infection was caused by the lapses that occurred at the Clinic.
[5] Further, the Plaintiff’s own expert—Lawrence F. Muscarella—conceded that the passage of time since the infection control lapses makes it impossible to link any infections to the Clinic. This is apparent from the following excerpt of the cross-examination of Mr. Muscarella:
Answer: My conclusion stands. There are at least a number of patients that could have been infected and could have died as a result of those breaches at the clinic. That is my opinion.
Question: And there’s a number of patients who could not have been infected?
Answer: There are a number of patients who were not infected. We’re not concerned about those that weren’t infected. We’re just concerned about those who were harmed, not those who aren’t harmed. That’s what this litigation is about. Harming people. Not not harming people.
Question: I take it you know of no method now to test patients to determine whether or not they would have contracted a virus or bacteria from the clinic between 2002 and 2011?
Answer: No, there absolutely are. I think the problem becomes time. Because we’re talking about if a patient had a viral test before the clinic’s examination and came up negative and then had a hepatitis C or B after the procedure, shortly thereafter, if there were two or three that had that done, and there’s a link between the two in terms of the RNA and the DNA, we definitely have a link. Based on what I saw, there hasn’t been any association like that. But that, again, goes to the issue of viruses. There’s nothing ruling out the possibility of bacterial infections and deaths as a result of that clinic.
Question: And that’s something that can be identified in 2019 based on something that happened in 2002?
Answer: I believe because of mutations with viruses, unfortunately, you are correct. That does not mean that the clinic did not harm those patients. It means you can’t confirm….
Question: I’ve simply asked you whether or not there is a method today, in 2019, to link whether or not someone has contracted a virus or bacteria from 2002 to 2011?
Answer: There’s statistical analysis that can make a strong argument for it, but, in general, because of the mutations of viruses, you cannot connect the two. But that does not mean the two are not related or associated to one another.
[6] Thus, while Mr. Muscarella does believe that patients were infected as a result of the Clinic’s lapses, he agrees that there is no method available to establish such a link.
The Caselaw
[7] In Atlantic Lottery v. Babstock, 2020 SCC 19, [2020] 2 S.C.R. 420, the plaintiffs sought to certify a class action based on allegations that video lottery terminals are inherently dangerous and deceptive. In doing so the plaintiffs relied on three causes of action: waiver of tort, breach of contract and unjust enrichment. They sought a gains-based award, quantified by the profit earned by the lottery corporation who licensed the lottery terminals.
[8] In finding that the plaintiffs’ pleading disclosed no reasonable cause of action, the Supreme Court found that the independent cause of action for waiver of tort does not exist. Waiver of tort is a cause of action that could only be pursued where a tort was made out. Essentially, as put by the Supreme Court in Atlantic Lottery at para. 29,
Where a tort was made out but the plaintiff chose to pursue a claim in assumpit to recover the defendant’s ill-gotten gains, the plaintiff was said to “waive the tort.” …Rather than forgiving or waiving the wrongfulness of the defendant’s conduct, plaintiffs relying on the doctrine were simply electing to pursue an alternative, gains-based remedy. [Citations omitted.]
[9] As the Court confirmed in para. 30, “in order to make a claim for disgorgement, a plaintiff must first establish actionable misconduct.” Given this, the Court went on to consider “what it is that makes a defendant’s negligent conduct wrongful.” At para. 33, the Court had this to say on that issue:
It is therefore important to consider what it is that makes a defendant’s negligent conduct wrongful. As this Court has maintained, “[a] defendant in an action in negligence is not a wrongdoer at large: he is a wrongdoer only in respect of the damage which he actually causes to the plaintiff.” There is no right to be free from the prospect of damage; there is only the right not to suffer damage that results from exposure to unreasonable risk. In other words, negligence “in the air” – the mere creation of risk – is not wrongful conduct.
[10] In Palmer v. Teva Canada Ltd., 2022 ONSC 4690, the proposed plaintiffs had consumed a prescription drug used to treat high blood pressure. The drug was later subject to a recall because, to varying degrees, lots of the drug were found to be contaminated with a substance that they alleged could cause cancer. The plaintiffs commenced an action against the drug manufacturers and distributors claiming damages for, among other things, psychological harm. However, the plaintiffs made no claim for compensation for consumers who had ingested the drug and were actually diagnosed with cancer now or in the future. As put by the certification judge in that case, “this case is about compensation for increasing the risk of a cancer diagnosis”: Palmer at para. 7.
[11] In Palmer the defendants resisted certification on the basis that “there are no legally viable causes of action for the fear of an increased risk of cancer”: at para. 8. The certification judge first canvassed whether there was some basis in fact to find that exposure to the contaminants in the case he was dealing with actually increased the risk of being diagnosed with cancer. He found that based on the evidence before him, “there is some basis in fact for the proposition that exposure to NDMA and NDEA in the Defendants’ contaminated valsartan very modestly increases the risk of being diagnosed with cancer”: at para. 103.
[12] In Palmer, as in the case at bar, the government (Health Canada) issued a number of advisories advising people that the drug at issue was being recalled because a contaminant had been found and that “that there is no immediate risk to patients taking these medications, since the risk of cancer is with long-term exposure to the impurities that exceed safe levels”: at para. 112.
[13] The plaintiffs in Palmer brought a claim “for compensation for the psychological harm of having ingested valsartan and then being advised of it probably being a carcinogen in humans”: at para. 123. The certification judge in that case accepted that there was some basis in fact for concluding that “a small proportion of the membership of the class will have sustained psychological harm for a relatively short period of time as a result of learning about the contamination of the valsartan that they had been ingesting”: at para. 134. However, he refused to certify the claim for psychological harm since, as a legal matter, claims for anxiety associated with an increased risk of harm is not compensable. It is only anxiety associated with the materialization of that risk that is compensable. In coming to this conclusion the certification judge canvassed the leading authorities on this issue, including Atlantic Lottery. Having done so, he found at para. 186:
Moving on to a conclusion, in my opinion, based on this case law, it is plain and obvious that in the immediate case, the products liability claim for damages for psychological harm is not certifiable as pleaded or at all. Neither the risk of future physical or psychological harm nor the present anxiety occasioned by the risk of future physical or psychological harm is a compensable harm, and, thus, it is plain and obvious that the damages constituent element of a negligence cause of action is missing that and accordingly the cause of action criterion is not satisfied in the immediate case. This impediment cannot be cured by the Plaintiffs’ amending their pleading.
[14] The certification judge in Palmer recognized the upset and anxiety that the proposed class members would have suffered upon being advised by Health Canada that they had been exposed to a possible carcinogen. However, even if that loss had been compensable as a psychological injury claim (which it was not), for the vast majority of the class the loss would not have risen to a level that would be compensable as a personal injury claim. In Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, Chief Justice McLachlin stated at para. 9:
This said, psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset. Personal injury at common law connotes serious trauma or illness. The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury. I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept. The need to accept such upsets rather than seek redress in tort is what I take the Court of Appeal to be expressing in its quote from Vanek v. Great Atlantic & Pacific Co. of Canada: “Life goes on”. Quite simply, minor and transient upsets do not constitute personal injury, and hence do not amount to damage.
[15] In Palmer the plaintiffs also claimed damages for the economic losses arising from their learning of the increased risk of being diagnosed with cancer. These included medical bills, medical monitoring, refunds, and costs of drugs thrown away. The Plaintiffs in the case at bar make similar claims. In the products liability context (which Palmer was), such claims have failed on the basis that they cannot be advanced without establishing that the goods at issue presented “an imminent real and substantial danger to health and safety”: Palmer at para. 203, relying on the Supreme Court of Canada’s decision in 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35. In other words, as found by the certification judge in Palmer, because there is no cause of action for increased risk of harm, there could be no claim for economic losses incurred because of the alleged increased risk of being exposed to cancer.
[16] The certification judge in Palmer also relied on another basis for refusing to certify the claims for economic losses—the de minimus principle. In Arora v. Whirlpool Canada LP, 2013 ONCA 657, aff’g 2012 ONSC 4642, leave to appeal ref’d [2013] S.C.C.A. No. 498, the Court of Appeal addressed the question whether the plaintiffs’ claims for pure economic losses arising from the allegation that their washing machines produced an odor that damaged their laundry with a foul smell would support an actionable negligence claim that could be certified. The Court of Appeal found as follows at paras. 76-77:
Moreover, the appellants who allege that their clothing was damaged because a smell was imparted on them did not plead that the smell was in any way lasting, that they were unable to wear their clothing as a result, or that there was any physical damage to the clothing. The proposition that such a de minimis harm could give rise to an actionable negligence claim is dubious.
In Rothwell v. Chemical and Insulating Co., [2007] UKHL 39, [2008] A.C. 281, at para. 8 [discussed above] Lord Hoffman affirmed the familiar principle that “[a]n action for compensation should not be set in motion on account of a trivial injury. De minis non curat lex.”
The Defendants’ Submissions
[17] The Defendants submit that the Plaintiff’s claim in this case is one for psychological harm and economic losses based on an increased risk of infection, in a situation where there is no possibility of proving that the risk has ever materialized or will ever materialize. Based on the case law, most notably Atlantic Lottery, there is no cause of action for damages for exposure to increased risk of harm. Therefore, the Plaintiff’s claims should not have been certified.
The Plaintiff’s Submissions
[18] The Respondents allege that the Atlantic Lottery decision has no application to the case at bar since the allegedly created risk had not materialized in any manner whatsoever. In the case at bar, the consequences of the wrongdoing by Dr. Farazli led many members of the Class to undergo additional medical procedures (including testing and monitoring) that they would not have otherwise had to undergo.
The Certification Judge’s Decision
[19] The certification judge recognized that this was an increased risk case. As stated by him at para. 6:
The plaintiff did not test positive, and she does not assert that she was infected. Rather, she seeks compensation for exposure to enhanced risk of infection and for the shock, trauma and inconvenience inherent in responding to the public health notice. It is possible there may be members of the proposed class who did become infected and who believe the infection was acquired in the clinic, but this is not the focus of the litigation. The plaintiff alleges that all members of the proposed class suffered damages and are entitled to compensation whether or not the risk of infection materialized.
[20] At no point in his decision does the certification judge deal with the proposition that a cause of action for damages for increased risk cannot be sustained at law. This may be because of the fact noted in para. 10 of his reasons that the Defendants conceded that the cause of action criterion was satisfied.
Analysis
[21] The fact that the Defendants’ conceded that the cause of action criterion was satisfied does not mean that they conceded that there was some basis in fact to support the other aspects of the test for certification, including the requirement that the claims of the class members raised common issues. The concession in relation to the cause of action criterion was a legal one based on the plain and obvious test that precludes any examination of the evidence. Satisfying the other criteria demands some examination of the evidence—in this case, most notably the evidence given by Mr. Muscarella (the Plaintiff’s expert) where, in cross-examination he confirmed that while it was his opinion that the actions of the Defendants had caused infections, there was no methodology available to prove that this was the case.
[22] Without being able to establish by evidence that the Defendants’ actions had caused or would cause infections, the Plaintiff’s claim becomes one for damages caused by the speculative notion that she was at risk of an increased infection. This is exactly the kind of harm that was the focus of the discussion in Atlantic Lottery and Palmer. In both cases the conclusion was that, at law, a claim for this kind of harm cannot be sustained.
[23] I do not accept the Plaintiff’s argument that this case can be distinguished on the basis that there were material consequences to the Plaintiff and other proposed class members as a result of the Defendants’ wrongdoing—namely the taking of additional tests. First of all, in Palmer, many of the proposed plaintiffs also underwent medical testing. This did not mean that the action for increased risk got certified. In fact, the opposite occurred. The certification judge in Palmer made a number of findings in relation to those damages that are equally applicable to the case at bar. First, because there is no cause of action for increased risk of harm, a claim for economic losses that arises in response to an increased risk of harm is also not sustainable. Second, any anxiety experienced as a result of receiving notices from a governmental authority about an increased risk of a medical condition would be unlikely to pass the threshold for compensation set out by the Supreme Court of Canada in Mustapha. As set out in Mustapha, the law does not compensate for the anxiety, upset and fear that people often encounter in their lives. To be compensable, the psychological injury must rise to the level of serious trauma or illness. The anxiety caused by undergoing the medical tests at issue in this case would be unlikely to rise to this level. Finally, the quantum of economic damages might well not pass the de minimus threshold discussed in Arora.
[24] Given this, I agree that the certification judge erred in certifying a common issue based on a claim for increased risk of harm. I also agree that this is the kind of error that attracts less deference from the appellate court charged with reviewing the certification judge’s decision. The error is a legal error that is central to the proper application of the certification requirements. As such, less deference is required: See Hodge v. Neinstein, 2015 ONSC 7345 (Div. Ct.), at para. 12.
Other Issues
[25] Having found that the cause of action asserted—a claim for damages resulting from increased risk of harm—should not have been certified, there is no need to deal with the other issues for which leave was granted. If there can be no compensation for damages relating to exposure to increased risk of harm, no questions relating to those damages should have been certified. Further, if the main claimants do not have a certifiable cause of action, neither do the family law claimants. Without a certifiable cause of action, there is no need to conduct a preferability analysis.
Conclusion
[26] For these reasons, I would allow the appeal and set aside the certification order. Pursuant to the agreement of the parties, as the successful parties, I would award the Defendants their costs of this appeal, fixed in the amount of $20,000, all inclusive. This amount is made up of $5000 for the leave application and $15,000 for the appeal hearing.
H. Sachs J.
I agree _______________________________
Ellies R.S.J.
I agree _______________________________
Gibson J.
Released: June 22, 2023
CITATION: McGee v. Dr. Farazil, 2023 ONSC 3671
DIVISIONAL COURT FILE NO.: DC-223-2762
DATE: 2023/06/22
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Ellies R.S.J., Sachs and Gibson JJ.
BETWEEN:
FERN MCGEE
Respondent/Plaintiff
– and –
DR. CHRISTINE FARAZLI and C. FARAZLI MEDICINE PROFESSIONAL CORPORATION
Appellants/Defendants
REASONS FOR JUDGMENT
H. SACHS J.
Released: June 22, 2023