Court File and Parties

COURT FILE NO.: CV-13-5565-CP DATE: 2016/06/21 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

SHERRY-LYNN DANIELLS Plaintiff

Geoffrey Larmer, for the Plaintiff

• and -

MELISSA McLELLAN and NORTH BAY REGIONAL HEALTH CENTRE Defendants

Deborah Berlach, for the Defendant North Bay Regional Health Centre No one appearing for the Defendant Melissa McLellan

HEARD: June 6, 2016

Ellies J.

REASONS FOR DECISION

OVERVIEW

[1] This motion under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, O. Reg. 194 arises in the context of a class proceeding which has not yet been certified. In the proceeding, the presently named plaintiff, Sherry-Lynn Daniells, seeks damages against the defendants for tortious intrusion upon seclusion as a result of the unauthorized access by the defendant, Melissa McLellan, to personal health information contained in approximately 5,800 patient files.

[2] The defendant, North Bay Regional Health Centre (the “hospital”) objects to Daniells standing as the sole representative plaintiff. It takes the position that Daniells’ experience was atypical of the members of the class she seeks to represent because her personal health information was acted upon. As a result of the hospital’s position, the plaintiff proposes to add a second representative plaintiff, Andrea Kendall, to the class proceeding. However, the hospital also objects to Kendall standing as a representative plaintiff. It contends that Kendall’s ability to act as a representative plaintiff may be impaired by virtue of a release she signed in favour of the hospital as part of the settlement of an earlier action. It contends that the issues surrounding the effect of the release will “distract” the court during the certification process and that Kendall may have interests which conflict with those of the members of the class she seeks to represent.

[3] Therefore, the hospital seeks an order under Rule 21 that Kendall cannot act as a representative plaintiff.

[4] For the following reasons, the motion is dismissed.

BACKGROUND

[5] Both McLellan and Daniells were registered nurses employed by the hospital. According to the hospital’s statement of defence, in 2011, Daniells was admitted to the hospital as a patient. During her admission, certain staff members visited her, although she had apparently not advised any of them that she was a patient at the hospital.

[6] After learning that some of the staff had been made aware of Daniells’ admission, the hospital conducted an investigation. The investigation revealed that Daniells’ personal health information had been accessed by staff members who were not in Daniells’ “circle of care”. Those individuals included McLellan whom, the hospital learned, had improperly accessed the medical records of over 5,000 patients.

[7] In its statement of defence, the hospital takes the position that Daniells is not the proper representative plaintiff. It maintains that the fact that she is a hospital employee and the fact that her personal information was acted upon makes her situation unique. It also maintains that Daniells is bringing the proceeding “to avoid or forestall issues that arose with respect to her employment”.

[8] Because of the hospital’s position regarding Daniells, plaintiff’s counsel proposes that Kendall act as the, or one of the, representative plaintiff(s). However, the hospital also contends that Kendall is inappropriate because of her involvement in a previous action against the hospital, which arose as a result of a failed abortion in 2009. Kendall gave birth and the child was subsequently put up for adoption. In May, 2011, Kendall and her mother brought suit against the hospital, the doctor who performed the operation, and a pathologist in which they claimed damages, including damages suffered by Kendall for emotional trauma and distress.

[9] The 2011 medical malpractice action was settled in November, 2015. Although the terms of settlement with respect to the other defendants are unknown, the claim against the hospital was settled on the basis of a dismissal without costs. Nothing was paid by the hospital to Kendall.

[10] As part of the settlement, the hospital required Kendall to sign a release in its favour, the particular terms of which I shall discuss in more detail below. Kendall signed that release on November 10, 2015.

[11] During a case conference held with respect to the present class proceeding, the parties agreed that a motion would be brought under Rule 21 to determine the effect, in any, of the release on Kendall’s suitability as a representative plaintiff. The parties also agreed that the materials filed in the motion could include evidence. However, the hospital objects to the plaintiff filing the affidavit of Kathleen Erin Cullen, one of the lawyers who represented Kendall in the medical malpractice action.

ISSUES

[12] In addition to disagreeing about what evidence should be permitted on the motion, the parties differ in their characterization of the substantive issue to be determined. The plaintiff submits that the court is in a position to resolve the issue of the effect of the release in this motion and that it should do so. The hospital maintains that the evidentiary record is not complete and that, therefore, the issue of the effect of the release must be dealt with at the certification stage. It submits that the mere fact that the effect of the release is an issue makes Kendall unsuitable as a representative plaintiff.

[13] The issues, therefore, are:

(1) Should the plaintiff be granted leave to file the Cullen affidavit? (2) Is the court in a position to determine the effect of the release on Kendall’s suitability as a representative of plaintiff? (3) If so, what is the effect of the release? (4) If not, should Kendall be precluded from acting as a representative plaintiff because of the issues surrounding the release?

ANALYSIS

Issue 1: Should the plaintiff be granted leave to file the Cullen affidavit?

[14] The hospital and the plaintiff each submitted a motion record. Notwithstanding the fact that it was one of the parties involved in the medical malpractice action and the party in whose favour the release in question was given, the hospital’s motion record contains no affidavit evidence. Instead, it includes only copies of various documents, including:

(a) the statement of claim in the class proceeding (commenced on January 24, 2013); (b) the statements of defence to that proceeding; (c) Kendall’s affidavit of March 7, 2016, sworn in support of the certification motion; (d) a transcript of Kendall’s cross-examination on her affidavit; (e) the statement of claim in the medical malpractice action; and (f) the release relating to that action.

[15] In response to the hospital’s motion record, the plaintiff served and filed her own motion record. The plaintiff’s motion record consists of the Cullen affidavit, together with attachments. These attachments include copies of two e-mails relating to the release that were exchanged between Cullen and Robyn Grant, who was counsel for the hospital in the medical malpractice action. The plaintiff’s motion record does not contain a separate notice of motion. Therefore, no formal request has been made on behalf of the plaintiff for leave to file evidence on the motion.

[16] Counsel for the plaintiff indicated in his submissions that counsel for the hospital objected to the Cullen affidavit. That is not apparent to me either from the written materials or from the submissions of counsel for the hospital. Assuming that to be the case, it is my view that the plaintiff ought to be granted leave to file the Cullen affidavit, for two reasons.

[17] First, it is apparent from the endorsement I made following a case conference held via telephone on April 15, 2016, that both parties contemplated that evidence would be filed on this motion. At the time, both parties agreed that a motion under Rule 21(1)(a) was the appropriate means by which to raise the issue of the release and both parties agreed that evidence ought to be filed despite the provisions of Rule 21(2)(a). The hospital cannot say, therefore, that it has been taken by surprise.

[18] Second, the hospital’s main argument is that the issue of the effect of the release cannot be determined on the basis of the evidentiary record presently before the court. However, as I mentioned, despite the fact that the hospital was one of the parties involved in the medical malpractice action, it has filed no affidavit evidence. It would be unfair, in my opinion, not to allow the plaintiff to adduce evidence and yet permit the hospital to argue on the basis of an insufficient record.

[19] The plaintiff, therefore, is granted leave to file the Cullen affidavit.

Issue 2: Is the court in a position to determine the effect of the release on the suitability of Kendall as a representative plaintiff?

[20] A representative plaintiff must meet the requirements set out in s. 5(1)(e) of the Class Proceedings Act 1992, S.O. 1992, c. 6, the relevant parts of which read:

5. (1) The court shall certify a class proceeding on a motion … if,

(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.

[21] Counsel for the hospital argues that Ms. Kendall may have an interest which conflicts with those of the class she seeks to represent, if the release prohibits Kendall from making a claim. Counsel for the plaintiff concedes this point and concedes, as well, that, if the release has such an effect, Kendall would also fail to qualify as a member of the class she seeks to represent.

[22] The law with respect to the interpretation of releases is well-settled. It was succinctly summarized by Baltman J. on behalf of the Divisional Court in Biancaniello v. DMCT LLP, 2015 ONSC 6361, at para. 13, as follows:

It is undisputed that the substantive law relating to the interpretation of a release stipulates that whether subsequent claims fall within the scope of those previously released requires a determination of what was “in the contemplation of the parties” when the release was given. In considering what was “in the contemplation of the parties” courts will consider the words used in the document itself, the circumstances leading up to its execution, and evidence as to the intention of the parties. The contextual analysis must be an objective one; it matters not what a party to a release personally believed, but rather what a reasonable bystander would say was in the specific contemplation of the parties under the circumstances: Hill v. Nova Scotia (Attorney General), [1997] 1 S.C.R. 69 (S.C.C.), at para. 20; Creston Moly Corp. v. Sattva Capital Corp., 2014 SCC 53 (S.C.C.) paras. 57-8; 1518628 Ontario Inc. v. Tutor Time Learning Centres LLC, [2006] O.J. No. 3011 (Ont. S.C.J.) at para. 102.

[23] The release in this case provides that the plaintiffs in the medical malpractice action:

release and forever discharge the said NORTH BAY GENERAL HOSPITAL … (hereinafter referred to as the “Releasees”) … for damages, loss or injury, howsoever arising, which against the Releasees, [the plaintiffs] ever had, now have or may hereafter have, for or by any reason of any cause, matter or thing whatsoever existing up to present time with respect to any and all claims that were advanced or which could have been advanced in the Action, arising as a result of or related to the procedure Andrea Kendall underwent at the North Bay General Hospital on or about June 5, 2009.

[24] On behalf of the hospital, Ms. Berlach argues that, even with the Cullen affidavit, the evidentiary record before the court is insufficient to determine the effect of the release. She submits that at least two items are missing from the record, namely Kendall’s counselling records and the transcript of Kendall’s examination for discovery in the medical malpractice action, the production of both of which have been refused by plaintiff’s counsel. Ms. Berlach contends that these may reveal that the emotional trauma that Kendall suffered as a result of the failed abortion was exacerbated by the intrusion into her privacy. She submits that interpreting the release requires determining what claims could have been advanced in the medical malpractice action and that, without these pieces of evidence, the court is not in any position to interpret the release.

[25] I agree that the task of interpreting the scope of the release in this case requires the court to determine what claims could have been advanced in the medical malpractice action. However, I am unable to agree that this task requires a review of either the counselling records or the transcript of Kendall’s examination for discovery.

[26] What Kendall could have recovered in the medical malpractice action is limited by the basis upon which she made a claim for those damages. Kendall was not entitled to obtain damages for a tort for which she made no claim in the medical malpractice action.

[27] The basis of Kendall’s claim in the medical malpractice action is clearly set out in the statement of claim with respect to that action. By virtue of the statement of claim, Kendall claimed damages in connection with the failed abortion and its consequences. There is nothing in the statement of claim that would have allowed Kendall to recover for damages sustained in connection with the events underlying the claim being advanced in the present class proceeding without an amendment to the 2011 statement of claim. No such amendments were ever made.

[28] Even if Kendall’s counselling records and the transcript of Kendall’s examination for discovery revealed that the invasion into her privacy contributed to the emotional distress and other damages she suffered as a result of the failed abortion, that is a matter which goes to the quantum of damages she can recover in this class proceeding and not to her entitlement to claim them. Kendall is not entitled to be paid twice for the same damages. The extent, if any, to which Kendall’s damages from the invasion of her privacy converged with her damages for the failed abortion is a damage issue which must be dealt with in the class proceedings.

[29] Of course, the parties to an action may agree to resolve matters, both known and unknown, beyond those that are the subject of a claim. Where the issue is whether a claim was known, and whether the release therefore covers it, the counselling records and Kendall’s evidence on discovery might be relevant. However, there is no dispute in this case that both parties knew of the breach of Kendall’s privacy at the time that her claim regarding the failed abortion was settled.

[30] The question in this case is not whether the parties knew about the privacy breach before the medical malpractice action was settled, but whether, looked at objectively, they intended to include the damages from that breach in the release. What matters are the terms of the release and circumstances surrounding its execution. The record before the court includes the release itself, an affidavit on the part of one of Ms. Kendall’s lawyers at the time the release was signed, as well as copies of e-mails that passed between counsel for both parties before the release was executed. In my view, therefore, the record is sufficient to determine the effect of the release.

Issue 3: What is the effect of the release?

[31] In her affidavit, Cullen deposes that she was the lawyer responsible for negotiating the settlement of Kendall’s medical malpractice action against the hospital and the two other defendants named in that action.

[32] Cullen deposes that she was advised by Kendall of Kendall’s claim with respect to the breach of her privacy while they were reviewing a draft release provided by Grant. Cullen further deposes that Kendall expressed concern that the draft release might prevent her from pursuing her claim for breaching her privacy. As a result, Cullen wrote electronically to Grant, expressing her concern that the release was too broad. On November 6, 2015, Cullen wrote:

The action with respect to which we have agreed to provide a Release relates specifically to the care that Andrea received in connection with her abortion procedure. The Release that you have provided appears to be significantly more broad, and would appear to encompass any claim of any sort up to the date of the Release, including the claim for breach of privacy that will be the subject of class action proceedings.

[33] Cullen proposed two amendments to the draft release. The first was to paragraph 1. The original release purported to release the hospital from any and all actions, causes of action, etc. which the plaintiffs “ever had, now have or may hereafter have, for and by reason of any cause, matter or thing whatsoever…”. Cullen proposed that this be amended to read:

... with respect to any and all claims that were advanced or which could have been advanced in the Action arising as a result of the procedure conducted on Andrea Kendall at the North Bay General Hospital on or about June 5, 2009.

[34] The second proposed amendment was to paragraph 2. At the end of the first sentence, in which the plaintiffs agreed that they had no further claim against the hospital arising “out of the matters that are the subject of this Full and Final Release”, Cullen sought to add the words:

Save and except for a potential claim arising as a result of the unauthorized access of my medical records by an employee of the North Bay General Hospital, which claim does not, and is not intended to, form part of the claims released herein.

[35] Grant accepted the first proposed amendment and rejected the second. She wrote to Cullen on November 9, 2015:

Further to your e-mail of Friday, I am agreeable to revising the release to ensure that it refers specifically to the subject matter of the within action. Please see the revisions I have made to the first para. of the release, attached.

However, I do not think your proposed revisions to the second paragraph are necessary or appropriate for this release. With the revisions to para 1, it is clear what the subject matter release is.

[36] I agree with Grant that the second amendment proposed by Cullen was unnecessary in order to give effect to the intentions of the parties. Those intentions were clearly to restrict the release to matters that arose as a result of the failed abortion attempt and not to include those that arose out of the breach of privacy. Amending the release to include a reference to the completely different tortious claim for intrusion into seclusion would likely have served to confuse, not to clarify, the potential scope of the original medical malpractice action.

[37] Based on this evidence, the release Kendall signed in connection with the medical malpractice action does not bar her entitlement to claim damages from the hospital in connection with the tortious intrusion into seclusion of her privacy.

Issue 4: If not, should Kendall be precluded from acting as a representative plaintiff because of the issues surrounding the release?

[38] In light of my answer to issue 3, it is not necessary for me to deal with this issue.

CONCLUSION

[39] Kendall is not precluded from acting as a representative plaintiff in this class proceeding by virtue of the release she signed in connection with the medical malpractice action.

[40] The hospital’s motion is dismissed.

[41] If the parties are unable to agree on the matter of costs, written submissions may be made as follows:

(1) The plaintiff may make submissions, limited to five typewritten pages, exclusive of attachments, within 20 days of the date of the release of these reasons; (2) The hospital may make submissions, similarly limited, within 10 days of the receipt of the plaintiff’s written submissions; and (3) The plaintiff may make any necessary reply, similarly limited in length, within 10 days of the date of receipt of the hospital’s written submissions.

Ellies J.

Released: June 21, 2016