Norman v. Thunder Bay Regional Health Sciences Centre, 2015 ONSC 3252

COURT FILE NO.: CV-11-0457

DATE: 2015-05-21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Teresa Norman, Warren Norman and Sarah Adams,

Barbara A. MacFarlane and Loretta P. Merritt, for the Plaintiffs

Plaintiffs

• and -

Thunder Bay Regional Health Sciences Centre, Dr. Dimitrios Vergidis, Dr. Dorie-Anna Dueck, Dr. Dolores Sicheri, Dr. Doe, Pharmacist Doe, Nurse Doe, Sanofi-Aventis Pharma Inc. and Sanofi-Aventis Canada Inc.,

Barry Glaspell, for the Defendant Thunder Bay Regional Health Sciences Centre

Peter Kryworuk and Nada Nicola-Howorth, for the Defendants Dr. Dimitros Vergidis, Dr. Dorie-Anna Dueck and Dr. Dolores Sicheri

Patricia D.S. Jackson and Nicole Mantini, for the Defendants Sanofi Pharma Inc. and Sanofi Canada Inc.

Defendants

HEARD: November 20 and 21, 2014, and January 23, 2015, at Thunder Bay, Ontario

Regional Senior Justice D. C. Shaw

Decision On Motion

[1] This is a motion to certify this proceeding as a class action pursuant to s. 5 of the Class Proceedings Act, 1992, S.O. 1992, c.6 (“C.P.A.”).

[2] The moving parties are the plaintiffs, Teresa Norman, Warren Norman and Sarah Adams, who bring this action on behalf of a proposed class, described as “all persons who received the drug Taxotere at the Hospital (Thunder Bay Regional Health Sciences Centre) between the time period of January 1, 2009 and December 31, 2010 and suffered respiratory illness, including but not limited to pneumonitis”.

[3] Taxotere is the brand name for a chemotherapy medicine approved by Health Canada to treat breast cancer and other types of cancer.

The Parties

[4] The proposed representative plaintiff, Teresa Norman, received treatment for breast cancer at Thunder Bay Regional Health Sciences Centre (the “Hospital”) in 2009. As part of that treatment she received Taxotere prescribed by the defendant, Dr. Dorie-Anna Dueck. She alleges that she developed a respiratory illness, pneumonitis, as a result of taking Taxotere.

[5] The proposed representative plaintiff, Wayne Norman, is Ms. Norman’s husband. He seeks to bring the action on behalf of all the family members of the patients entitled to claim pursuant to the Family Law Act.

[6] The proposed representative plaintiff, Sarah Adams, received treatment for breast cancer at the Hospital in 2010. As part of that treatment, she received Taxotere prescribed by the defendant, Dr. Dimitrios Vergidis. She alleges that she developed a respiratory illness, pneumonitis, as a result of taking Taxotere.

[7] The defendant Hospital is located in Thunder Bay. The Northwestern Ontario Regional Cancer Centre is located at the Hospital.

[8] The defendant, Dr. Dimitrios Vergidis, is a medical oncologist at the Hospital. Dr. Vergidis provided Ms. Adams with medical oncology care, including the management of her chemotherapy treatment, in 2010. As part of this treatment, Dr. Vergidis prescribed Taxotere.

[9] The defendant, Dr. Dorie-Anna Dueck, is a medical oncologist at the Hospital. Dr. Dueck provided Ms. Norman with medical oncology care, including the management of her chemotherapy treatment, in 2009. As part of this treatment, Dr. Dueck prescribed Taxotere.

[10] The defendant, Dr. Dolores Sicheri, is a medical oncologist at the Hospital. Dr. Sicheri was not involved with Taxotere treatment provided to either Ms. Norman or Ms. Adams.

[11] The defendant, Dr. Doe, is defined in the Amended Statement of Claim, in the singular, as “a medical doctor licensed to practice medicine in the Province of Ontario and holding privileges as an oncologist at the Hospital at the material time.” The Amended Statement of Claim alleges that Dr. Doe, “provided care to members of the Class at the Hospital and ordered the use of Taxotere on the Class members”.

[12] The defendant, Pharmacist Doe, is defined in the Amended Statement of Claim, in the plurual, as “a pharmacist, pharmacists or technicians who were, at the material time, employees, agents or servants of the Hospital and were responsible for the storage, mixing, diluting and dispensing of Taxotere”. The Amended Statement of Claim alleges that the defendant, Pharmacist Doe, was responsible for the storing, handling and delivery of Taxotere for administration to patients, including the class members, at the Hospital.

[13] The defendant, Nurse Doe, is defined in the Amended Statement of Claim, in the plural, as “a nurse or nurses who were at the material times, employees, agents or servants of the Hospital”. The Amended Statement of Claim alleges that the defendant, Nurse Doe, “at all material times was a nurse or nurses practicing in the Northwestern Ontario Regional Cancer Centre at the Hospital and was involved in the administration of Taxotere to the Class members”.

[14] The defendant, Sanofi-Aventis Canada Inc. (“Sanofi Canada”), is a federal corporation. The defendant, Sanofi-Aventis Pharma Inc. (“Sanofi Pharma”), is a subsidiary of Sanofi Canada. Sanofi Canada received approval from Health Canada to market and sell Taxotere in Canada.

Background Facts

[15] Taxotere is recognized as an effective drug in adjuvant therapy to treat breast cancer. Cancer treatment in Ontario is overseen by Cancer Care Ontario (“CCO”), an Ontario government agency. One of the roles of CCO is to develop Clinical Practice guidelines to provide guidance to oncologists and others involved in cancer treatment in Ontario. The CCO guidelines for Taxotere recommend the use of Taxotere in the treatment of women with early stage invasive breast cancer who are classified as intermediate or high risk. The guidelines were based on evidence showing that Taxone-based therapy (including Taxotere) resulted in better outcomes for patients, including better chances of preventing recurrence and increased survival rates, than treatment which did not include this therapy. Taxone-based chemotherapy carries a very small risk of acute adverse respiratory effects (such as pneumonitis). Evidence on the motion indicated that the risk was so remote that it was not the standard of care expected of a medical oncologist in 2009 or 2010, or today, to advise patients of the risk.

[16] Taxotere is packaged, sold and delivered in Canada as a two vial package, which includes one vial of bulk drug product and a second vial containing a solvent or a dilutant. The contents of the two vials are mixed together in the pharmacy of the Hospital by either a pharmacist or a technician and then administered in a solution, intravenously, to the patient by the nursing staff in the cancer ward.

[17] Sanofi Canada provides a product monograph for Taxotere. It also provides a leaflet that goes out with every package of the drug. These documents refer to the phenomenon of crystallization of the product, which they state is routinely visually detected during preparation prior to administration. If the premix solution or infusion solution is not clear or appears to have crystallization, it is to be discarded. The leaflet and monograph provide guidelines to avoid crystallization, covering matters such as manner of mixing, insufficient mixing, over-mixing, infusion bag concentration, temperature, storage times, re-use of syringes and multi-dosing.

[18] Evidence on the motion from the plaintiffs’ pharmacy expert indicated that if particles were present in the reconstituted solution of Taxotere, they would be a potential cause for pneumonitis because the particles could get into the blood stream and then into the lungs. Pneumonitis is inflammation of lung tissue.

[19] In October and November 2010, seven patients at the Hospital experienced what was then described as possible lung toxicity and/or pneumonitis following treatment for their cancer with Taxotere. Following those events in 2010, the Hospital reviewed its records and retrospectively identified other patients who had received treatment in the late summer and early fall of 2009, and who had also experienced possible lung toxicity and/or pneumonitis after receiving chemotherapy treatment with Taxotere at the Hospital. In total, 12 cases of possible lung toxicity or pneumonitis occurring between November 2009 and November 2010 were identified.

[20] The first of these events was reported to Sanofi Canada by the Hospital on November 19, 2010. Sanofi Canada voluntarily placed a hold on the batch of Taxotere associated with the majority of those reported incidents and commenced an investigation. All 12 cases, dated as having occurred from November 2009 to November 2010, were ultimately reported to Sanofi Canada by the Hospital in late 2010.

[21] The Amended Statement of Claim alleges that Ms. Norman received her first dose of Taxotere in October 2009, immediately following which she began to experience a dry cough and shortness of breath. After her second dose of Taxotere, her respiratory condition worsened such that she was unable to climb stairs or walk to the bathroom without being winded. On November 30, 2009, a couple of weeks after receiving her third and final dose of Taxotere, she was admitted to the Hospital with severe respiratory complications. She remained in Hospital for about one month under the care of Dr. Dueck and Dr. Vergidis, and was, according to the Amended Statement of Claim, ultimately diagnosed by Dr. Vergidis, the Chief of Oncology, with “Taxotere induced pneumonitis”.

[22] The Amended Statement of Claim alleges that Ms. Adams received her first dose of Taxotere in September 2010. Immediately following the completion of her third dose, she began to develop severe respiratory problems. She was eventually admitted to the Hospital and was diagnosed with “Taxotere induced pneumonitis”. She remained hospitalized for one month.

[23] After receiving reports of the adverse respiratory events, Sanofi Canada conducted a quality control investigation and determined, and Health Canada agreed, that there were no quality control issues with respect to the batches of Taxotere that were identified as having been administered to the patients at the Hospital during the relevant period.

[24] In December 2010, a Sanofi Canada representative visited the Hospital to assess the Hospital’s receipt, storage, handling, preparation and administration of Taxotere. The pharmacist and technician to whom the representative spoke recalled seven to eight cases where the vial went cloudy after the first dilution. They could not remember specific dates or lot numbers. They were certain that the drug was discarded and not used. The investigation revealed that the pharmacy staff was completing the pre-mix dilution using a rolling technique instead of the inversion technique as indicated in the Taxotere Product Monograph. There was one occasion, on November 17, 2010, when after the solution was mixed, it appeared clear, but after it had been left on a counter for a nurse to pick up while the pharmacist was out of the clinic, it appeared “white and fluffy”, which the pharmacy staff had never seen before.

[25] Sanofi Canada’s investigation concluded that no evidence of common elements was found that could link the occurrence of the 12 cases with crystallization of the Taxotere solutions or to a cause correlated with the use of Taxotere.

[26] The evidence of the doctors’ expert oncologist was that a breast cancer patient may develop pneumonitis during or shortly after treatment for a number of different reasons, related or unrelated to Taxotere treatment, including:

• infection;

• spread of cancer to the lung;

• pulmonary embolus;

• particulates in the lungs;

• allergy to a drug; and

• radiation therapy.

[27] The risk of developing pneumonitis from radiation therapy for breast cancer is significantly greater than the risk of developing this condition from Taxotere. Both Ms. Norman and Ms. Adams underwent radiation therapy.

[28] Dr. Dueck was the medical oncologist who presented Ms. Norman’s treatment options to her and who was responsible for managing her chemotherapy treatment. Dr. Vergidis, Dr. Sicheri and Dr. Doe were not involved in providing Ms. Norman with any information or advice regarding Taxotere.

[29] Dr. Vergidis was the medical oncologist who presented Ms. Adam’s treatment options to her and who was responsible for managing her chemotherapy treatment. Dr. Dueck, Dr. Sicheri and Dr. Doe did not provide Ms. Adams with any information or advice regarding Taxotere.

[30] The adverse pulmonary events reported in the 12 cases included pulmonary edema, dry cough, pneumonitis and dyspnea. The Sanofi Canada report noted that among the confounding factors and alternative etiologies, six patients had a history of smoking or exposure to second hand smoke, six patients had received breast irradiation, one had a documented episode of prior dyspnea possibly related to molds and one had pneumonia before being treated with Taxotere. Diagnosis in nine of the 12 cases was also confounded by exposure to concomitant drugs.

[31] Ms. Norman deposed that during her hospitalization in December 2009, she learned that three other women had been admitted to the Hospital with respiratory illnesses. She said that Dr. Sicheri had advised her that she felt that the symptoms of all four women were side effects of the flu shot. Ms. Norman advised Dr. Sicheri that she had not received the flu shot. Dr. Sicheri advised that she was going to continue to look for a link among the four patients.

[32] In October 2011, the plaintiffs’ solicitors placed an advertisement in Thunder Bay’s newspaper requesting that breast cancer patients who received Taxotere in 2010 and suffered from medical complications contact them to “learn their legal rights”. Plaintiffs’ counsel advised defendants’ counsel that they are aware of 10 patients who may have had issues related to the treatment with Taxotere, including Ms. Norman and Ms. Adams.

Certification

[33] Section 5(1) of the C.P.A. provides:

5. (1) The court shall certify a class proceeding on a motion under section 2, 3 or 4 if,

(a) the pleadings or the notice of application discloses a cause of action;

(b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant;

(c) the claims or defences of the class members raise common issues;

(d) a class proceeding would be the preferable procedure for the resolution of the common issues; and

(e) there is a representative plaintiff or defendant who,

(i) would fairly and adequately represent the interests of the class,

(ii) has produced a plan for the proceeding that sets out a workable method of advancing the proceeding on behalf of the class and of notifying class members of the proceeding, and

(iii) does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

[34] In 578115 Ontario Inc. v. Sears Canada Inc. 2010 ONSC 4571, at para. 30, Strathy J. (as he then was) set out the principles applicable to a certification motion:

(a) The C.P.A. is remedial and is to be given a generous, broad, liberal and purposive interpretation. The three goals of a class action regime, as recognized by the Ontario Law Reform Commission, Report on Class Actions, 3 vols. (Toronto: Ministry of the Attorney General, 1982) and by the Supreme Court of Canada are: judicial efficiency; improved access to the courts; and, behaviour modification, or the generation of “a sharper sense of obligation to the public by those whose actions affect large numbers of people”: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 S.C.R. 158, [2001] S.C.J. No. 67 at para. 15; Ontario Attorney General’s Advisory Committee on Class Action Reform, Report (Toronto: The Committee, 1990) at 16 - 18 and 20; Western Canadian Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] 2 S.C.R. 534, [2000] S.C.J. No. 63 at paras. 27 – 29.

(b) The C.P.A. is entirely procedural. The certification stage is not meant to be a test of whether the plaintiff’s claim will succeed. In the event that subsections (a) through (e) of s. 5(1) of the C.P.A. are satisfied, certification of the action by the court is mandatory: C.P.A. s. 5(1), Bendall v. McGhan Medical Corp. (1993), 1993 5550 (ON SC), 14 O.R. (3d) 734, [1993] O.J. No. 1948 at para. 39 (Gen. Div.).

(c) The C.P.A. provides the courts with a procedural tool to deal efficiently with cases involving large numbers of interested parties, as well as complex and often-intertwined legal issues, some of which are common and some of which are not: Hollick v. Toronto (City), above, at paras. 14 and 15; Bendall v. McGhan Medical Corp., above, at para. 40.

(d) Certification is a fluid, flexible procedural process. It is conditional, always subject to decertification. Certification is not a ruling on the merits. A certification order is not final. It is an interlocutory order, and it may be amended, varied or set aside at any time: C.P.A. ss. 5(5), 10(1) and 10(2); Bendall v. McGhan Medical Corp., above, at para. 42; Hollick v. Toronto (City), above, at para. 16; Ontario Attorney General’s Advisory Committee on Class Action Reform, Report, above, at 30 – 33.

(e) The court has no discretion to refuse to certify a proceeding as a class proceeding solely on the ground that one or more of the following are present: (i) the relief claimed would require individual damage assessments; (ii) the relief claimed relates to separate contracts; (iii) there are different remedies sought for different class members; (iv) the number or identity of class members is not known; (v) the identified class includes a sub-class whose members have claims or defences that raise common issues not shared by all class members: C.P.A. s. 6; Anderson v. Wilson (1997), 1997 12104 (ON SC), 32 O.R. (3d) 400, [1997] O.J. No. 548 at para. 18 (Gen. Div.); varied (1998), 1998 18878 (ON SC), 37 O.R. (3d) 235, [1998] O.J. No. 671 (Div. Ct.); rev’d, certification order varied (1999), 1999 3753 (ON CA), 44 O.R. (3d) 673, [1999] O.J. NO. 2494, (C.A.), leave to appeal to S.C.C. dismissed, [1999] S.C.C.A. NO. 476, 185 D.L.R. (4th) vii.

(f) The Ontario class proceeding regime does not require common questions of fact and law applicable to members of the class to predominate over any questions affecting only individual members. It furthermore does not require that the representative plaintiff be typical: Hollick v. Toronto (City), above, at paras. 29 and 30; Bendall v. McGhan Medical Corp., above, at para. 48; Andersen v. St. Jude Medical Inc. (2003), 2003 5686 (ON SC), 67 O.R. (3d) 136, [2003] O.J. No. 3556 at para. 48 (S.C.J.).

(g) In order to succeed on a certification motion, the plaintiff requires only a “minimum evidentiary basis for a certification order”. It is necessary that the plaintiff “show some basis in fact” for each of the certification requirements, other than the requirement in s. 5(1)(a) that the claim discloses a cause of action: Hollick v. Toronto (City), above, at paras. 22 and 25.

(h) “Some basis in fact” is an elastic concept and its application is difficult. It is not a requirement to show that the action will probably or possibly succeed. It is not a requirement to show that a prima facie case has been made out. It is not a requirement to show that there is a genuine issue for trial: Glover v. Toronto (City) (2009), 2009 16740 (ON SC), 70 C.P.C. (6th) 303, [2009] O.J. No. 1523 at para. 15 (S.C.J.).

Section 5(1)(a) Cause of Action

[35] The first criterion for certification is the disclosure of a cause of action. In Cloud v. Canada (Attorney General), 2004 45444 (ON CA), [2004] O.J. No. 4924 (C.A.), at para. 41, the Court of Appeal stated:

It is now well established that this requirement will prevent certification only where it is ‘plain and obvious’ that the pleadings disclose no cause of action, as that test was developed in Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959.

[36] The material facts pleaded are to be taken as proven unless they are patently incapable of proof.

[37] No evidence is admissible for the purposes of determining the s. 5(1)(a) criterion (Hollick, at para. 25).

[38] The pleading must be read generously to allow for inadequacies due to drafting frailties and the plaintiffs’ lack of access to key documents and discovery information (Hunt, at paras. 33–37).

[39] The fact that this action is a proposed class proceeding, does not relieve the plaintiffs of their obligation to comply with the rules regarding pleadings.

[40] As stated by Farley J., in National Trust Co. v. Furbacher, [1994] O.J. No. 2385 (Gen. Div.), at para. 9, pleadings have a three-fold function. They should:

(a) define with clarity the question in controversy between the litigants;

(b) give fair notice of the precise case which is required to be met and the precise remedies sought; and

(c) assist the court in its investigations of the truth and the allegations made.

[41] To this end, rule 25.06 provides that a pleading shall contain a concise statement of the material facts upon which a party relies, but not the evidence by which those facts are to be proved. It also provides that conclusions of law may be pleaded only if the material facts supporting them are pleaded.

[42] Rule 25.11 provides that a pleading may be struck on the ground that it may prejudice or delay the fair trial of an action, is scandalous, frivolous or vexatious, or is an abuse of the court.

[43] Rule 21.01 provides that a pleading may be struck on the ground that it discloses no reasonable cause of action or defence.

[44] The extent to which material facts must be pleaded, and the consequences of a failure to plead those material facts, are set out by Cameron J. in Balanyk v. University of Toronto, 1999 14918 (ON SC), [1999] O.J. No. 2162 (S.C.J.) at para. 29:

The plaintiff must plead all the material facts on which it relies and all of the facts which it must prove to establish a cause of action. If any fact material to the establishment of a cause of action is omitted, the statement of claim is bad and the remedy is a motion to strike the pleadings, not a motion for particulars.

[45] If at the time of pleading, a party does not have knowledge of the facts that support a cause of action, then it is inappropriate to make those allegations. It is not sufficient for a party to allege that the material facts are peculiarly within the knowledge of the opposing party or that it will determine facts as a result of examinations for discovery or in some other way that will support the allegations (Region Plaza Inc. v. Hamilton-Wentworth (Regional Municipality),1990 6761 (ON SC), [1990] O.J. No. 589 (H.C.J.) Rosenberg J. at para. 7.)

[46] In their Amended Statement of Claim, the plaintiffs’ claim, among other relief:

• a declaration that the defendants were negligent in respect of the use of Taxotere for medical treatment of the proposed class;

• a declaration that the defendants breached their contractual obligations to exercise all reasonable care and skill in the manufacture, handling, administration and/or dispensing of Taxotere to the proposed class; and

• a declaration that the defendants breached their fiduciary obligations owed to the proposed class arising from their conduct and that of their servants, agents or employees in the use of Taxotere at the Hospital.

[47] Although the Sanofi defendants are included in the claim for a declaration of breach of contract and breach of fiduciary obligations, the plaintiffs advised at the hearing of the motion that they accepted that there were no contractual or fiduciary obligations owed to them by the Sanofi defendants.

[48] Apart from the claim in the prayer for relief for a declaration against the defendants of breach of contractual obligations and breach of fiduciary relations, the only reference to breach of contract and breach of fiduciary duty is contained in one paragraph of the Amended Statement of Claim – paragraph 46:

46. The Plaintiffs state that the Defendant Physicians, Hospital, Nurses and Pharmacists fell below the standard or care expected and breached their contractual and fiduciary obligations to exercise all reasonable care and skill in the treatment and care of the Plaintiffs and the Class members.

Allegations of Breach of Contract

[49] To establish a cause of action for breach of contract it is necessary to plead the terms of the contract or contracts that the plaintiffs say that they had with Dr. Vergidis, Dr. Dueck, Dr. Sicheri, Dr. Doe, the Hospital and all the nurses, pharmacists and technicians employed by the Hospital, whom the plaintiffs have defined under the terms “Nurse Doe” and Pharmacist Doe”. The plaintiffs must also plead which terms of the contract or contracts were breached and how they were breached.

[50] According to the Amended Statement of Claim, Ms. Norman had a direct physician-patient relationship with Dr. Dueck, and Ms. Adams had a direct physician-patient relationship with Dr. Vergidis. This would give rise to contractual relationships between these parties. However, the pleading goes much further to include all plaintiffs and all proposed class members, on the one hand, and all doctors, nurses, pharmacists and technicians, on the other hand, as parties to contracts, irrespective of what relationship they may have had. No facts are pleaded as to what terms, express or implied, are said to have been breached.

Allegations of Breach of Fiduciary Duty

[51] Similarly, I find that the plaintiffs’ pleading of breach of fiduciary obligations is deficient. The facts as pleaded, which are accepted as true for the purposes of this motion, do not establish a cause of action for breach of fiduciary duty.

[52] The Supreme Court of Canada, in Alberta v. Elder Advocates of Alberta Society, 2011 SCC 24, set out the general requirements for imposition of a fiduciary duty. At para. 27, the court referred to the dissenting reasons of Wilson J. in Frame v. Smith, 1987 74 (SCC), [1987] 2 S.C.R. 99, later adopted and applied in Lac Minerals Ltd. v. International Corona Resources Ltd., 1989 34 (SCC), [1989] 2 S.C.R. 574:

Relationships in which a fiduciary obligation have been imposed seem to possess three general characteristics:

(1) The fiduciary has scope for the exercise of some discretion or power.

(2) The fiduciary can unilaterally exercise that power or discretion so as to affect the beneficiary’s legal or practical interests.

(3) The beneficiary is peculiarly vulnerable to or at the mercy of the fiduciary holding the discretion or power. [p. 136]

[53] However, the court in Alberta stated that, as useful as the three “hallmarks” referred to in Frame are in explaining the sources of fiduciary duties, they are not a complete code for identifying fiduciary duties. The court observed that vulnerability alone is insufficient to support a fiduciary claim. The court then outlined the elements which identify the existence of a fiduciary duty in cases not covered by an existing category in which fiduciary duties have been recognized at paras. 30 - 36:

[30] First, the evidence must show that the alleged fiduciary gave an undertaking of responsibility to act in the best interests of a beneficiary: Galambos, at paras. 66, 71 and 77-78, and Hodgkinson, per La Forest J., at pp. 409-10. As Cromwell J. wrote in Galambos, at para. 75, “what is required in all cases is an undertaking by the fiduciary, express or implied, to act in accordance with the duty of loyalty reposed on him or her.”

[31] The existence and character of the undertaking is informed by the norms relating to the particular relationship: Galambos, at para. 77. The party asserting the duty must be able to point to a forsaking by the alleged fiduciary of the interests of all others in favour of those of the beneficiary, in relation to the specific legal interest at stake.

[32] The undertaking may be found in the relationship between the parties, in an imposition of responsibility by statute, or under an express agreement to act as trustee of the beneficiary’s interests. As stated in Galambos, at para. 77:

The fiduciary’s undertaking may be the result of the exercise of statutory powers, the express or implied terms of an agreement or, perhaps, simply an undertaking to act in this way. In cases of per se fiduciary relationships, this undertaking will be found in the nature of the category of relationship in issue. The critical point is that in both per se and ad hoc fiduciary relationships, there will be some undertaking on the part of the fiduciary to act with loyalty. [Emphasis added.]

[33] Second, the duty must be owed to a defined person or class of persons who must be vulnerable to the fiduciary in the sense that the fiduciary has a discretionary power over them. Fiduciary duties do not exist at large; they are confined to specific relationships between particular parties. Per se, historically recognized, fiduciary relationships exist as a matter of course within the traditional categories of trustee-cestui que trust, executor-beneficiary, solicitor-client, agent-principal, director-corporation, and guardian-ward or parent-child. By contrast, ad hoc fiduciary relationships must be established on a case-by-case basis.

[34] Finally, to establish a fiduciary duty, the claimant must show that the alleged fiduciary’s power may affect the legal or substantial practical interests of the beneficiary: Frame, per Wilson J., at p. 142.

[35] In the traditional categories of fiduciary relationship, the nature of the relationship itself defines the interest at stake. However, a party seeking to establish an ad hoc duty must be able to point to an identifiable legal or vital practical interest that is at stake. The most obvious example is an interest in property, although other interests recognized by law may also be protected.

[36] In summary, for an ad hoc fiduciary duty to arise, the claimant must show, in addition to the vulnerability arising from the relationship as described by Wilson J. in Frame: (1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary or beneficiaries; (2) a defined person or class of persons vulnerable to a fiduciary’s control (the beneficiary or beneficiaries); and (3) a legal or substantial practical interest of the beneficiary or beneficiaries that stands to be adversely affected by the alleged fiduciary’s exercise of discretion or control.

[54] The Amended Statement of Claim pleads no facts which would allow a court to find that there was a fiduciary duty owed by the defendants to the plaintiffs or that a fiduciary duty was breached. There are no facts pleaded with respect to vulnerability of the proposed class, nor that support an undertaking, express or implied, by the defendants to act with undivided loyalty towards the class nor that set out the interests of the proposed class that were adversely affected by the defendants’ exercise of discretion or control.

Allegations of Negligence

[55] Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, at para. 3, sets out the four elements to which a plaintiff must plead material facts to found a claim in negligence:

[3] A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach.

[56] Under the heading “Negligence”, the Amended Statement of Claim alleges:

41. The Plaintiffs plead that the Defendants were negligent in the manufacturing, storage, mixing, dilution, handling, storage and/or administration of Taxotere and that said negligence caused their losses.

42. The Plaintiffs further plead that the Defendants knew or ought to have known that their negligent manufacturing, storage, mixing, dilution, handling, storage and/or administration of Taxotere would cause the plaintiffs to develop severe respiratory illness or complications, including but not limited to pneumonitis.

43. It is further alleged that the Defendant Physicians, “Pharmacist Doe” and/or “Nurse Doe” continued to prescribe and/or administer Taxotere to the Plaintiffs when they knew or ought to have known that the drug was negligently manufactured, stored, mixed, diluted, handled and/or administered and would cause the Plaintiffs to develop severe respiratory illness or complications, including but not limited to pneumonitis.

44. It is alleged that the Defendants did not warn the Plaintiffs of the potential side effects of Taxotere, including specifically the risk of developing permanently debilitating respiratory illness or pneumonitis.

45. It is also alleged that, in failing to advise the Plaintiffs of the numerous patients of the Hospital who had developed severe respiratory illnesses following the receipt of Taxotere at the Hospital, the Defendants failed to obtain the Plaintiffs’ informed consent.

46. The Plaintiffs state that the Defendant Physicians, Hospital, Nurses and Pharmacists fell below the standard of care expected and breached their contractual and fiduciary obligations to exercise all reasonable care and skill in the treatment and care of the Plaintiffs and the Class members.

47. The Plaintiffs state that the Defendant, Sanofi-Aventis, was negligent and breached its contractual obligations to exercise all reasonable care and skill in the manufacturing, processing, handling and distribution of Taxotere for use on the Class members.

48. The Plaintiffs state that the Hospital and the Defendant, Sanofi-Aventis, are liable at law for the negligent acts of its employees, agents or servants.

[57] Following these paragraphs, the Amended Statement of Claim contains further extensive allegations of negligence against all defendants.

[58] In my view, the Amended Statement of Claim is fatally deficient in its pleadings of negligence.

[59] It indiscriminately lumps all defendants together. It fails to clarify each defendant’s role. It fails to identify the specific acts alleged as against each defendant to support the causes of action.

[60] Not only are the defendants lumped together, the Amended Statement of Claim does not distinguish between the different negligence claims against the defendants.

[61] As noted, rule 25.06(1) requires that a statement of claim contain a concise statement of the material facts on which the party relies for the claim. This requires the plaintiffs to plead the material facts which establish the constituent elements of their claim as set out in Mustapha. The plaintiffs have failed to do so. I adopt the words of Horkins J. in Martin v. Astrazeneca Pharmaceuticals PLC, 2012 ONSC 2744, at para. 132:

[132] This pleading offends rule 25.06(1) because it fails to acknowledge the differences between the various types of negligent activity. Instead of precision and clarity, the pleading is muddled and vague. The defendants are entitled to know the material facts that the plaintiffs rely on to support each area of negligence. Generalized allegations of negligence are not sufficient: see Khan v. Canada (A.G.), [2009] O.J. No. 715 (S.C.J.) at para. 19, aff’d, 2009 ONCA 737, leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 516. As Strathy J. emphasized in Cerqueira v. Ontario, 2010 ONSC 3954 at para. 12, "defendants are entitled to know the case they must meet. The court must be fair to the plaintiff, but it must also be fair to the defendants."

[62] The thrust of the submissions of all defendants, with which I agree, is that the plaintiffs have not said what it is that each of the defendants should have done that they did not do and how that failure caused damage to the plaintiffs.

[63] The plaintiffs plead misrepresentation as against “Sanofi-Aventis” which they define to mean Sanofi-Aventis Canada Inc. and its subsidiary Sanofi-Aventis Pharma Inc., the federal corporations who manufactured, sold and distributed the drug Taxotere for use at the Hospital.

[64] When a misrepresentation is pleaded, rule 25.06(8) requires that the pleading shall contain “full particulars”. In Hughes v. Sunbeam Corp. (Canada), [2000] O.J. No. 4596 (S.C.J.), at para. 23, Cumming J. described what must be pleaded when an allegation of misrepresentation is made:

23. A pleading of negligent misrepresentation must set forth with careful particularity the material facts in support of establishing the requisite elements for the tort: the representation; when, where, how, by whom and to whom it was made; the existence of a duty of care based upon a “special relationship” between the representor and representee; the falsity of the representation; that the representor acted negligently in making the representation; reasonable reliance by the representee on the representation; and the resulting loss or damage. Queen v. Cognos Inc. (1993), 1993 146 (S.C.C.), 99 D.L.R. (4th) 626 (S.C.C.) at 643.

[65] No material facts have been pleaded to comply with those required elements of misrepresentation.

[66] In paragraph 44 of the Amended Statement of Claim, the plaintiffs plead failure to warn, as against all defendants. Later, at paragraph 49, the plaintiffs plead failure to warn as against the Sanofi defendants, Drs. Vergidis, Dueck, Sicheri and Doe, and against the Hospital.

[67] Breach of duty to warn has pleading requirements. In Martin, at para. 159, Horkin J. observes:

[159] The statement of claim also fails to plead what warnings were given, how they were inadequate, and whether or how they could have been improved. A breach of the duty to warn requires a demonstration that the defendants failed to provide the appropriate level of specificity in the product monograph. The plaintiffs have not pleaded any material facts in relation to the actual warnings contained in the product monograph. This bare pleading does not disclose a tenable cause of action for duty to warn.

[68] These observations are applicable to the within allegations of failure to warn.

[69] There is no particularity as to how individual defendants fell below standards of care in each area of claimed negligence.

[70] The plaintiffs have failed to plead any material facts in support of their allegations that the named and unidentified physicians owed a duty of care to the proposed class members who were not their patients. The only relationship pleaded is the physician-patient relationship between Ms. Norman and Dr. Dueck, and the physician-patient relationship between Ms. Adams and Dr. Vergidis, which does give rise to a duty of care. However, it is not sufficient to make bald allegations of negligence against all defendant physicians vis-à-vis the plaintiffs and the proposed class where the facts necessary to establish that there is a duty of care owed to them have not been pleaded.

[71] The action, as against the doctors, is pleaded as a case of a physician-patient relationship. There is, however, no recognized duty of care owed by a physician to a non-patient. If the pleadings are, instead, to be read as asserting a novel duty of care by the physicians towards the plaintiffs and the proposed class, there are insufficient facts pleaded to advance that proposition. As noted by Roccamo J. in Friend v. Watters, 2012 ONSC 435, at para. 142, where it is sought to establish a novel duty of care, mere foreseeability is not enough. The plaintiffs must establish proximity between the parties. To meet the test for proximity, the plaintiffs must define their relationship with the named and unidentified doctors by reference to a recognized or analogous category of cases in which proximity has been identified. Roccamo J. continued, at paras. 149 – 150:

[149] In assessing if a duty of care should be imposed upon Dr. Penning, I must follow the approach in Anns v. Murton London Burrough Council, [1977] 2 A11 E.R. 492 repeatedly applied by Canadian courts before Cooper v. Hobart, supra. See Kamloops (City of ) v. Nielsen, 1984 21 (SCC), [1984] 2 S.C.R. 2.

[150] At the first stage, the approach requires me to decide whether the circumstances as pleaded disclose reasonably foreseeable harm and proximity sufficient to establish a prima facie duty of care. Once a prima facie duty of care is established under the first branch of the Anns test, it must be considered whether the duty should be negated at the second stage for overriding policy reasons.

[72] In my view, the Amended Statement of Claim does not plead material facts that raise a prima facie duty of care of the physicians to persons who were not their patients. (The second stage of the inquiry is not for this motion but rather for a trial judge.) The plaintiffs’ claim against the defendant physicians does not plead the facts of a relationship of sufficient proximity between the plaintiffs and the defendant physicians to found a duty of care and to support a claim in negligence.

[73] In Boudreau v. Bank of Montreal, 2012 ONSC 3965 at para. 15, Lofchik J. dealt with this issue:

[15] While the novelty of a claim will not militate against the plaintiff, the Supreme Court of Canada has recognized that it is entirely appropriate to carefully scrutinize a newly asserted duty of care at the pleading stage, even where the category of duty alleged has not been previously litigated. In overturning an appellate court decision and striking the plaintiff's claim, Abella J. held for a unanimous court:

Both the majority and dissenting reasons acknowledged that imposing such a duty of care would represent a novel duty at law. The benefit of making a determination on a Rule 21 motion about whether such a duty should be recognized, is obvious. If there is no legally recognized duty of care to the family owed by the defendants, there was no legal justification for a protracted and expensive trial. If, on the other hand, such a duty is accepted, a trial is necessary to determine whether, on the facts of this case, that duty has been breached.

I would not, as a result, recognize such a new legal duty. It follows that, in my view it is "plain and obvious" that the statement of claim discloses no reasonable cause of action against these defendants. (Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, at paras. 19 and 21.)

[74] In their submissions on the hearing of the motions, the plaintiffs indicated that their claim against the physicians on behalf of non-patients, and whether those patients could argue that those physicians owed them a duty of care, related to the systemic failure of the physicians to investigate the phenomenon of what was happening at the Hospital in that particular cancer ward and report it to other doctors on the ward, to the manufacturer, to the Hospital and, possibly, to Health Canada.

[75] Firstly, that is not how the Amended Statement of Claim is framed. Secondly, even if the Amended Statement of Claim could be read as a claim for systemic negligence arising out of a failure of the named doctors and the unidentified doctor to report events pertaining to persons who were not their patients, the material facts in support of that claim, including the necessary elements of foreseeability and proximity, have not been pleaded.

[76] I note that the Amended Statement of Claim is inconsistent. Paragraph 41 alleges that all defendants were negligent in the manufacturing, mixing, dilution, handling, storage and/or administration of Taxotere. Paragraph 19, however, alleges that the defendant physicians were responsible for prescribing Taxotere, while the Hospital, Pharmacist Doe and Nurse Doe were responsible for the storage, mixing, dilution, handling and/or administration of the drug to the plaintiffs.

[77] I also observe that not only are the defendants lumped together throughout the pleading, but the defendants Sanofi Canada and Sanofi Pharma, which are separate corporations, are lumped together as one defined entity, “Sanofi-Aventis”.

[78] As Horkin J. observes in Martin, at paras. 120 – 127, it is inappropriate to simply lump together these individual corporations. As a matter of substantive law, a parent corporation is not interchangeable with its subsidiary.

[79] In my view, the plaintiffs have not satisfied the “cause of action” requirement of s. 5(1)(a) of the C.P.A.

Section 5(1)(b) Identifiable Class

[80] As stated in 578115 Ontario Inc., at para. 36:

[36] There must be an identifiable class of two or more persons who will be represented by the proposed plaintiff. The class definition fulfills three purposes: (a) it identifies the persons who have a potential claim for relief against the defendants; (b) it defines the parameters of the lawsuit so as to identify those persons who will be bound by the result; and (c) it describes the persons entitled to notice of certification: Bywater v. Toronto Transit Commission (1998), 27 C.P.C. (4th) 172, [1998] O.J. No. 4913 at para. 10, (Gen. Div.). The class definition must state objective criteria by which class members can be identified: Western Canadian Shopping Centres Inc. v. Dutton, above, at para. 38; Hollick v. Toronto (City), above, at para. 17.

[81] As set out in Fairview Donut Inc. v. TDL Group Corp., 2012 ONSC 1252, at para. 220, the case law has established the following requirements of a class capable of certification:

(a) membership in the class should be determinable by objective criteria without reference to the merits of the action;

(b) the class criteria should bear a rational relationship to the common issues asserted by all class members, but all class members need not share the same interest in the resolution of the asserted common issues;

(c) the class must be bounded and not of unlimited membership;

(d) there is a further obligation, although not onerous, to show that the class is not unnecessarily broad and could not be defined more narrowly without arbitrarily excluding some people who share the same interest in the resolution of the common issues;

(e) membership in a class may be defined by those who make claims in respect of a particular event or alleged wrong, without offending the rule against the class description being dependent on the outcome of the litigation; and

(f) a proper class definition does not need to include only those persons whose claims will be successful.

[82] The definition of the class in the Amended Statement of Claim is vague and overly broad.

[83] The definition itself does not require any causal connection between the taking of Taxotere and a respiratory illness. It simply requires that a person received Taxotere at the Hospital and that the person had a respiratory illness, including pneumonitis. This could, therefore, include persons who took Taxotere and who had a respiratory illness, without any connection to Taxotere, for any number of reasons.

[84] The evidence of the 12 cases identified by the Hospital reveals a variety of individual health conditions, including many patients with significant co-morbidities that confounded varying diagnoses of dyspnea, pneumonitis, dry cough and pulmonary edema.

[85] The term “respiratory illness” is undefined. Respiratory illness can encompass a broad range of pathological conditions affecting the upper and lower respiratory tracts, from colds to lung cancer.

[86] The definition also does not require any temporal connection between the taking of Taxotere and suffering from a respiratory illness. Indeed, although it was accepted on the motion that the definition would be limited to persons who took Taxotere and then suffered a respiratory illness, that is not how the class is actually defined. As framed, the class could include persons who suffered a respiratory illness before they took Taxotere. More significantly, there is no requirement that the respiratory illness, however defined, occurred within any limited time after taking Taxotere, including limiting the respiratory illness to 2009 and 2010.

Section 5(1)(c) Common Issues

[87] In Fulawka v. Bank of Nova Scotia, 2012 ONCA 443, at para. 81, the Court of Appeal approved the summary of legal principles concerning the common issues requirement in s. 5(1)(c) that Strathy J. set out in Singer v. Schering-Plough Canada Inc., 2010 ONSC 42, at para. 140 (citations omitted):

• The underlying foundation of a common issue is whether its resolution will avoid duplication of fact-finding or legal analysis.

• An issue can be a common issue even if it makes up a very limited aspect of the liability question and even though many individual issues remain to be decided after its resolution.

• There must be a rational relationship between the class identified by the Plaintiff and the proposed common issues.

• The proposed common issue must be a substantial ingredient of each class member's claim and its resolution must be necessary to the resolution of that claim.

• A common issue need not dispose of the litigation; it is sufficient if it is an issue of fact or law common to all claims and its resolution will advance the litigation for (or against) the class.

• With regard to the common issues, “success for one member must mean success for all.  All members of the class must benefit from the successful prosecution of the action, although not necessarily to the same extent.”  That is, the answer to a question raised by a common issue for the plaintiff must be capable of extrapolation, in the same manner, to each member of the class.

• A common issue cannot be dependent upon individual findings of fact that have to be made with respect to each individual claimant.

• Where questions relating to causation or damages are proposed as common issues, the plaintiff must demonstrate (with supporting evidence) that there is a workable methodology for determining such issues on a class-wide basis.

• Common issues should not be framed in overly broad terms: “It would not serve the ends of either fairness or efficiency to certify an action on the basis of issues that are common only when stated in the most general terms. Inevitably such an action would ultimately break down into individual proceedings. That the suit had initially been certified as a class action could only make the proceeding less fair and less efficient”.

[88] In Fulawka, at para. 82, after agreeing with the comment of Strathy J. that those legal principles are “by no means exhaustive”, Winkler C.J.O. for the court stated:

I would also add that it is up to the motion judge to decide what legal principles are the contentious ones in any particular case and to focus the analysis accordingly. The motion judge will then consider the pertinent legal principles with reference to the evidence adduced on the motion to decide if there is some basis in the evidence to establish the existence of the common issues.

[89] The certification judge must be satisfied that there is “some basis in fact for each of the certification requirements set out in s. 5 of the Act, other than the requirement that the pleadings disclose a cause of action”: Hollick, at para. 25.

[90] In Fulawka, at para. 79, Winkler C.J.O. explained this evidentiary requirement:

While the evidentiary basis for establishing the existence of a common issue is not as high as proof on a balance of probabilities, there must nonetheless be some evidentiary basis indicating that a common issue exists beyond a bare assertion in the pleadings. To be clear, this is simply the Hollick standard of "some basis in fact".

[91] In Schedule “D” of their factum, the plaintiffs proposed the following common issues:

• Did the defendants owe a duty of care to the class and, if so, what is the standard of care applicable to each defendant, did any of the defendants breach that standard of care and, if so, how and when?

• Did the defendants owe a fiduciary duty to the class and, if so, what are the fiduciary obligations applicable to each of those defendants; did any of the defendants breach those fiduciary obligations and, if so, how and when?

• Did the defendants owe contractual obligations to the class, and if so, what are the contractual obligations applicable to each of the defendants; did any of the defendants breach those fiduciary obligations and, if so, how and when?

• Did the Taxotere cause lung toxicity, including respiratory illness or pneumonitis, in the class members?

• Did any or all of the defendants’ negligence cause or contribute to Taxotere-induced lung toxicity?

• Should the defendants or any of them pay punitive damages and, if so, in what amount?

• Are the defendants jointly and severally liable for the remedies sought by the plaintiffs in the Amended Statement of Claim?

• Are members of the class entitled to special damages for medical costs incurred in the treatment of health complications relating to having ingested Taxotere?

(As noted, during submissions, the plaintiffs abandoned, as against the Sanofi defendants, their claims of breach of fiduciary duty and breach of contractual obligations.)

[92] In my view, the plaintiffs have not satisfied the s. 5(1)(c) common issues criteria.

[93] Determination of whether Taxotere caused “lung toxicity, including respiratory illness or pneumonitis” and whether negligence by any or all of the defendants caused or contributed to “Taxotere-induced lung toxicity” is an individual issue for each patient. It cannot be determined on a class-wide basis. (I note in passing that “lung toxicity” is not a term found in the Amended Statement of Claim. It is not part of the definition of the class. The Amended Statement of Claim uses the terms “respiratory illness, including but not limited to pneumonitis” and “respiratory illnesses and pneumonitis”, but not “lung toxicity, including respiratory illness or pneumonitis”. None of these terms are defined.)

[94] As observed in Fulawka, a common issue cannot be defendant upon individual findings of fact that have to be made with respect to each individual claimant. The plaintiffs have not demonstrated, with supporting evidence, that there is a workable methodology for determining on a class-wide basis that Taxotere caused lung toxicity, or respiratory illness, or pneumonitis for each individual member of the class. A common issue cannot be created solely on the basis of a bare assertion in the pleadings. There must be some basis in fact. The fact that the individuals in the proposed class may each have a claim against a particular defendant or defendants for medical malpractice is not synonymous with a common issue: see Carom v. Bre-X Minerals Ltd., 1999 14794 (ON SCDC), [1999] O.J. No. 1662 (S.C.J.) at para. 62, per Winkler J.

[95] Because there can be explanations as to why an individual patient suffered a respiratory illness, unrelated to Taxotere, I am unable to see how a causal link between Taxotere and a respiratory illness, in that particular patient, could be established without examining the medical history, treatment and other particular circumstances of that patient. An expert opinion would be needed to prove causation in each case.

[96] The plaintiffs’ proposed common issues of duty of care, standard of care, breach of the standard, fiduciary duties and breach of fiduciary duties, contractual obligations and breach of contractual obligations also require individual inquiry. The Hospital and the various doctors, nurses, pharmacists and technicians owe duties to patients in different fact situations. In some situations, there would be a direct physician-patient relationship. In other situations there would be no relationship between a particular doctor and a particular patient, or between a particular nurse, pharmacist or technician and a particular patient. The standard of care may vary depending on whether one is looking at 2009 or 2010. It may vary between the treatment of the first and of the last of the patients. If there was a duty to warn, was it the same on January 1, 2009, as it was two years later on December 31, 2010? Was it the same for patients and non-patients? What was disclosed and what was not disclosed by a particular doctor to his or her patient? How did a particular defendant pharmacist or technician deal with the storage and mixing of Taxotere? How did a particular defendant nurse administer the drug? What should one of the many defendants have known about the risk of Taxotere at any particular time and what did they know?

[97] As previously noted, paragraph 46 of the Amended Statement of Claim is the only allegation of breach of fiduciary duty and breach of contract. It pleads that the defendant physicians, Hospital, nurses and pharmacist failed to exercise all reasonable care and skill in the treatment and care of the plaintiffs and the class members. This is pleaded on an individual basis, not as a common issue.

[98] The Amended Statement of Claim, at paragraph 45, pleads a failure to warn the plaintiffs as a matter of failure to obtain informed consent, which is an individual issue. During submissions, the plaintiffs sought to reframe the failure to warn as a common issue of systemic negligence of failing to investigate adverse reactions and to then report to the Hospital, the pharmacists, the Sanofi defendants and “possibly” Health Canada. However, the Amended Statement of Claim, even read generously, does not plead a failure to report. A common issue cannot arise if it is not pleaded.

[99] Further, the essence of the action is that 10 or 12 patients suffered some form of respiratory illness as a result of being treated with Taxotere at the Hospital between January 1, 2009, and December 31, 2010. That is the threshold issue.

[100] In Brown v. Canadian Imperial Bank of Commerce, 2014 ONCA 677, at para. 61, Doherty J.A. held that absent an ability in that case to determine the threshold issue of eligibility for overtime pay of employees of the Bank, which had to be decided on an individual basis, the resolution of other proposed common issues would only minimally advance the litigation. “Without a common issue of eligibility for overtime pay, certification based on proposed common issues involving the terms of the employment contract that relate to overtime pay would surely be a case of the tail wagging the dog.”

[101] The proposed common issue of punitive damages is found at paragraph 57 of the Amended Statement of Claim. The pleading alleges a failure to warn the plaintiffs in 2010. It alleges:

57. The conduct of the Defendants in their provision of and management of the care of the Plaintiffs was high-handed, arrogant and reprehensible. Such conduct demonstrated a wanton and callous disregard for their health, safety and well-being and was purposefully repugnant to the Plaintiffs’ best interests and was motivated entirely by the Defendants’ own self interests. The conduct of the Defendants in general, is reprehensible and should be deterred and the Plaintiffs are therefore entitled to punitive and exemplary damages.

[102] Firstly, the pleading refers only to 2010 and therefore cannot be common to persons treated in 2009, such as Ms. Norman. Secondly, no evidentiary basis was put forward to support a claim of punitive damages as a common issue.

[103] The proposed common issue of special damages for medical costs is an individual issue.

Section 5(1)(d) Preferable Procedure

[104] Section 5(1)(d) of the C.P.A. requires the court to conclude that a class proceeding would be the preferable procedure for the resolution of the common issues.

[105] In Hollick, McLachlin C.J. indicated that the preferability inquiry had to be conducted through the lens of the three principal goals of class actions, namely: judicial economy, behaviour modification and access to justice. The ultimate question is whether other available means are preferable, not if a class action would achieve those goals. See AIC Limited v. Fischer, 2013 SCC 69, at paras. 22-23.

[106] In assessing preferability, the court must look at the common issues in the context of the action as a whole: see Fischer, at para. 21.

[107] In my view, a class action is not the preferable procedure in this case.

[108] I have indicated that the claims do not raise common issues sufficient to satisfy s. 5(1)(c).

[109] The dearth of common issues in relation to the overwhelming individual issues leads me to conclude that there would be no judicial economy in a class action.

[110] A class action would not serve the interests of access to justice.

[111] As noted in Fischer, at para. 27, the most common barrier to access to justice is an economic one which arises when an individual cannot bring forward a claim because of the high cost that litigation would entail in comparison to the modest value of the claim. A class action allows class members to distribute fixed litigation costs among a large number of class members thereby allowing the economical prosecution of claims that any one class member would find too costly to prosecute on her own: see Hollick, at para. 15. “It may also allow claimants to overcome psychological and social barriers through the representative plaintiff who provides guidance and takes charge of the action on their behalf”: Fischer, at para. 29. Class proceedings exist not only to provide access to procedure but also to substantive results. The court in Fischer, at para. 32, quotes from The Report of the Attorney General’s Advisory Committee on Class Action Reform (1990):

A class action is … a procedural mechanism that is intended to provide an efficient means to achieve redress for widespread harm or injury by allowing one or more persons to bring the action on behalf of the many. [p. 15]

[112] In Hollick, McLachlin C.J. observed at para. 34:

If individual class members have substantial claims against the respondent, we should expect that they will be willing to prosecute those claims individually …

[113] In the instant case, there is no basis in fact to suggest that the plaintiffs and the proposed class (10 persons in all) would be unable to prosecute their claims if the action was not certified.

[114] The plaintiffs claim damages for negligence in the sum of $40,000,000, special damages of $10,000,000, and punitive damages of $10,000,000. They plead “severe permanent and debilitating injures” and “devastating injuries that have had a catastrophic impact on their lives in all aspects of daily living and have substantially deprived them of their enjoyment of life and reduced their life expectancy”.

[115] Although there is evidence from the solicitors for the plaintiffs that not all the claims of the 10 patients who have come forward have equally significant damages, the evidence also is that the claims are nevertheless of significance. The plaintiffs’ litigation plan speaks of 10 or more patients who suffered “serious” respiratory complications during 2009 and 2010.

[116] These are the types of medical malpractice cases that are usually prosecuted on a contingency fee basis. The solicitors for the plaintiffs are experienced counsel who have expertise in acting for plaintiffs in serious medical malpractice actions on a contingency fee basis.

[117] There is no evidence of any psychological or social barriers that will deter any of the 10 members of the proposed class from bringing a claim.

[118] The proposed class is very small. It does not fit within the stated underlying goal of class proceedings of providing redress for “widespread harm or injury by allowing one or more persons to bring the action on behalf of the many”.

[119] In Ward-Price v. Mariners Haven Inc., [2002] O.J. No. 4260 (S.C.J.) at para. 38, where there were a maximum of 24 members in the proposed class, Nordheimer J. held that the size of a proposed class is a proper matter to take into account in determining whether to grant certification. At para. 39, he stated:

It is inherently problematic, in my view, to contemplate unleashing the full panoply of procedural requirements which arise in a class proceeding for the purpose of determining the claims of a small group of proposed class members. I refer in this regard to the notice requirements, the opting out process, the restrictions on discovery rights and like matters. Simply put, the smaller the membership of the proposed class, the more difficult it is to see a class proceeding as accomplishing the goal of judicial economy.

Section 5(1)(e) Representative Plaintiff with a Workable Litigation Plan

[120] The final requirement for certification is that there is a representative plaintiff who would fairly and adequately represent the interests of the class, who has produced a plan for the proceeding that sets out a workable litigation plan and who does not have, on the common issues for the class, an interest in conflict with the interests of other class members.

[121] In Martin, at para. 369, Horkins J. set out the two purposes of a workable litigation plan: it assists the court in determining whether the class proceeding is the preferable procedure and it allows the court to determine if the litigation is manageable.

[122] The plaintiffs have included as common issues for certification:

• did the Taxotere cause lung toxicity, including respiratory illness or pneumonitis, in the class members; and

• did any or all of the defendants’ negligence cause or contribute to Taxotere-induced lung toxicity, including respiratory illness or pneumonitis, in the class members.

[123] The plaintiffs’ Litigation Plan, however, provides:

20. If the Plaintiffs are successful at trial, the following issues remain to be determined:

a. Causation: Did the Defendants conduct cause or contribute to the injured Plaintiffs’ suffering from respiratory illness, including pneumonitis?

b. Individual damages.

21. Upon successful disposition of the common issues at trial, the Plaintiffs propose that the parties firstly seek to develop a resolution process to deal with the remaining individual issues on a summary and expedited basis. If such a scheme cannot be agreed upon an application may be made to the trial judge for direction with respect to the manner of proceeding for determination of the remaining individual issues.

[124] Leaving aside the contradictions between what the plaintiffs have stated to be the common issues and what they have pleaded and what is set out in the Litigation Plan, on the threshold issue of causation, the Litigation Plan fails to address the overwhelming individual issues which the plaintiffs in their Litigation Plan say will remain if they are successful at the common issues trial.

[125] In Caputo v. Imperial Tobacco Limited, 2004 24753 (ON SC), [2004] O.J. No. 299 (S.C.J.), at para. 76, Winkler J. stated:

[76] Here the plaintiffs have tailored the proposed class proceeding in such a way as to attempt to remove the overburden of individual issues. They have endeavored to achieve this through the use of aggregate assessments combined with an argument that the common issues trial judge should bear the burden of both determining whether individual issues exist and fashioning a method for their resolution. This approach is unacceptable. It is apparent that individual issues exist and that they must be dealt with in order for the class members to obtain relief even if a common issues trial were to be decided in their favour. Consequently, by neglecting to address the presence of individual issues and an acceptable method for dealing with them, the plaintiffs have a proposed litigation plan, such as it is, that is “unworkable”.

[126] Although Winkler J. was dealing with a proposed class of several million persons, the principle expressed is still applicable to this case: a litigation plan will not be workable if it fails to explain how the individual issues that remain, after the determination of the common issues, are to be addressed: see Martin, at para. 371.

[127] Whether causation and damages are to be common issues or individual issues, the plaintiffs’ Litigation Plan does not set out any method as to how causation and damages would be dealt with.

[128] I would add that having concluded that the common issues criterion of s. 5(1)(c) has not been met, it follows that a workable litigation plan could not be developed.

Conclusion:

[129] For the reasons given, the plaintiffs’ motion seeking certification of this action as a class proceeding is dismissed.

Costs

[130] If the parties are unable to agree on costs, they shall contact the Trial Co-ordinator within 30 days to arrange a teleconference with me to set a schedule for the receipt of written costs submissions. Otherwise, costs shall be deemed to have been settled.

___”original signed by”

The Hon. Mr. Justice D. C. Shaw

Released: May 21, 2015

CITATION: Norman v. Thunder Bay Regional Health Sciences Centre, 2015 ONSC 3252

COURT FILE NO.: CV-11-0457

DATE: 2015-05-21

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

Teresa Norman, Warren Norman and Sarah Adams,

Plaintiffs

• and -

Thunder Bay Regional Health Sciences Centre, Dr. Dimitrios Vergidis, Dr. Dorie-Anna Dueck, Dr. Dolores Sicheri, Dr. Doe, Pharmacist Doe, Nurse Doe, Sanofi-Aventis Pharma Inc. and Sanofi-Aventis Canada Inc.,

Defendants

REASONS FOR JUDGMENT

Shaw R.S.J.

Released: May 21, 2015

/mls