Court File and Parties

COURT FILE NO.: CV-13-5565-CP DATE: 2017/11/29 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

SHERRY-LYNN DANIELLS Plaintiff

- and -

MELISSA McLELLAN and NORTH BAY REGIONAL HEALTH CENTRE Defendants

COUNSEL: Geoffrey Larmer, for the Plaintiff Deborah Berlach and Thanasi Lampropoulos, for the Defendants

HEARD: In writing

BEFORE: Ellies J.

Reasons for Decision on Motion

[1] For reasons released on September 13, 2017 (2017 ONSC 3466, the “certification decision”), I granted the plaintiff’s motion for certification of this class action. I also made an order adding a second representative plaintiff to the action. In the action, the plaintiffs seek damages resulting from improper access by Melissa McLellan (“McLellan”) to their personal health information. McLellan was employed as a nurse at the North Bay Regional Health Centre (the “Hospital”) at the time.

[2] Following the certification decision, one issue remained outstanding, namely whether the possibility of an aggregate assessment of the plaintiffs’ damages under s. 24(1) of the Class Proceedings Act, 1992, S.O. 1992, c. 6 (the “CPA”) should be certified as a common issue. I requested further written submissions from the plaintiffs and from the Hospital on the question of whether at least a part of the plaintiffs’ damages could be assessed in the aggregate on the basis of the Ontario Court of Appeal’s decision in Good v. Toronto Police Services Board, 2016 ONCA 250, 130 O.R. (3d) 241, leave to appeal refused, [2016] S.C.C.A. No. 255. I have now received and reviewed those submissions, for which I am grateful to counsel.

Background

[3] The background facts have been set out in several of my earlier rulings in this case, including the certification decision. I will not repeat them here.

[4] In the certification motion, the Hospital sought the certification of subclasses on the basis that an aggregate assessment of damages was only possible with respect to one particular subclass. With respect to the other subclasses, the Hospital maintained that an aggregate assessment of damages was impossible because of the need for proof of loss by individual class members. I was unable to agree with the Hospital’s submission that subclasses were appropriate. Instead, I accepted the plaintiffs’ proposed single class, defined as:

All patients and former patients of the Hospital whose personal health information was accessed by McLellan without their consent, while McLellan was not involved in their care.

[5] The plaintiffs argued that an assessment of damages in the aggregate was possible based on two decisions. They argued that the Supreme Court of Canada upheld the use of average amounts to compensate for the general experience of class members in St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, [2008] 3 S.C.R. 392. They relied on the decision in Cloud v. Canada (Attorney General) (2004), 73 O.R. (3d) 401, 192 O.A.C. 239 (Ont. C.A.) to argue that courts had certified aggregate damages in actions concerning breach of fiduciary duty, using baseline common experience damages supplemented with individual damage assessments.

[6] I found myself unable to rely on the cases referred to by the plaintiffs in support of the propositions for which they were cited. However, I held that the decision in Good might support certification of an aggregate assessment of at least part of the defendants’ liability for damages.

[7] In Good, the representative plaintiffs sought damages in connection with detentions that occurred during the G20 Summit held in Toronto in June 2010. The representative plaintiff alleged, among other things, that her Charter rights and those of the class members had been breached by the detentions. The motion judge dismissed the motion for certification. The representative plaintiff narrowed her claim and appealed to the Divisional Court. The Divisional Court set aside the motion judge’s order and certified the narrowed claim as two separate class proceedings. The Court of Appeal dismissed an appeal from the Divisional Court’s order certifying the class proceedings.

[8] One of the issues before both the Divisional Court and the Court of Appeal was whether a common issue of aggregate damages should be certified. Both courts held that it should. In doing so, they endorsed the notion that, under s. 24(1) of the CPA, a common issues judge can determine a base amount of damages to which each member of a class is entitled. At paras. 74-75, Hoy A.C.J.O. wrote for the court:

I agree with the Divisional Court that it should be open to the common issues judge to consider whether aggregate damages would be an appropriate remedy, in whole or in part. The motion judge's decision pre-dated the Supreme Court's decision in Pro-Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 S.C.R. 477]. At para. 134, Rothstein J. wrote this for the court, in relation to legislation in British Columbia that parallels the Act:

The question of whether damages assessed in the aggregate are an appropriate remedy can be certified as a common issue. However, this common issue is only determined at the common issues trial after a finding of liability has been made. The ultimate decision as to whether the aggregate damages provisions of the CPA should be available is one that should be left to the common issues trial judge.

Further, this appears to be a case where the common issues judge may well determine that at least part of TPS' liability can reasonably be determined without proof by individual class members. As the Divisional Court highlighted, s. 24(1) asks whether the aggregate or a part of the defendant's liability can reasonably be determined without proof by class members. And, as the Divisional Court observed, it would be open to a common issues judge to determine that there was a base amount of damages that any member of the class (or subclass) was entitled to as compensation for breach of his or her rights. It wrote, at para. 73, that "[i]t does not require an individual assessment of each person's situation to determine that, if anyone is unlawfully detained in breach of their rights at common law or under s. 9 of the Charter, a minimum award of damages in a certain amount is justified.” [Emphasis in original.]

[9] As neither of the parties had referred to the Good decision in their submissions, I requested further submissions with respect to the applicability of Good to the possibility of an aggregate assessment of damages in the case at bar.

Issue

[10] The sole issue is whether the possibility of an aggregate assessment of damages should be certified as a common issue.

Analysis

[11] The possibility of an aggregate assessment of damages in a class proceeding is governed by s. 24(1) of the CPA, which reads:

24. (1) The court may determine the aggregate or a part of a defendant’s liability to class members and give judgment accordingly where,

(a) monetary relief is claimed on behalf of some or all class members;

(b) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined in order to establish the amount of the defendant’s monetary liability; and

(c) the aggregate or a part of the defendant’s liability to some or all class members can reasonably be determined without proof by individual class members.

[12] The representative plaintiffs claim damages for negligence, breach of fiduciary duty, breach of contract and intrusion upon seclusion. [^1] The Hospital submits that the only cause of action with respect to which it may be possible to assess aggregated damages on the basis of the decision in Good is that of breach of fiduciary duty. The Hospital contends that an aggregate assessment of damages with respect to the other causes of action is not possible because they all require individual assessments for each member of the class.

[13] The Hospital submits that an aggregate assessment of damages was possible in Good because the damages awarded under s. 24(1) of the Charter in that case contained an element of deterrence not found in damages awarded for negligence, breach of contract, or tortious intrusion upon seclusion. The Hospital argues that the damages for these three causes of action are purely compensatory. The Hospital submits that this is why it may be possible to assess damages in the aggregate with respect to a breach of fiduciary duty, the damages for which function, at least in part, as a deterrent.

[14] The Hospital also points out that causation is a necessary part of the causes of action in negligence and breach of contract, without which there can be no compensation.

[15] With respect to the tort of intrusion upon seclusion, the Hospital contends that Good is distinguishable on a factual basis from the present case. The Hospital submits that, in Good, the class members all suffered as a result of one action by the defendant, namely an order that the class members be detained without regard to the individual characteristics or conduct of the class members, whereas the class members in this case all suffered separate individual breaches of their privacy.

[16] I cannot agree with any of these arguments.

[17] I do not agree that Good is factually distinguishable from this case in the manner suggested. As the Divisional Court noted in Good, the claim in that case was “in essence, the equivalent of a claim of a systemic wrong” (para. 45). I see no qualitative difference between the command order impugned in Good and the allegations of systemic failures alleged against the Hospital in this case, except, perhaps, that in Good, the impugned order was acted upon by many officers whereas, in this case, the systemic failures, if any, were acted upon by one person. In Good, there were as many separate breaches as there were people detained.

[18] Nor do I believe it is accurate to suggest that the deterrence aspect of Charter damages underlies the decision in Good. No reference was made by either the Divisional Court or the Court of Appeal to deterrence damages under s. 24(1) of the Charter being the basis upon which a common issues trial judge could assess a part of the defendant’s liability in the aggregate under s. 24(1) of the CPA. Indeed, the Court of Appeal referred to damages being awarded both at common law and under the Charter, not just under the Charter, as contended by the Hospital (para. 75).

[19] In any event, as the plaintiffs correctly submit, the most prominent function of damages under the Charter, like damages awarded under negligence, contract and intrusion upon seclusion, is compensation: Vancouver v. Ward, 2010 SCC 27, at para. 24.

[20] In summary, then, the ratio in Good that an aggregate assessment may be made of a “base amount” or “minimum award” of damages without individual proof is not restricted to causes of action in which deterrence is one of the functions of the damages awarded. To address the point a little more generally, an aggregate assessment of “common experience” damages (to use the plaintiffs’ term) can be made where compensation is the sole or one of the goals of a damage award. Whether an aggregate assessment of common experience damages can be made depends upon the extent to which it can reasonably be concluded that each member of a class suffered some degree of damage. Whether that can be said in any particular case will depend, in turn, upon the nature of the wrongful act or omission and the nature of the damages that resulted from that act or omission. By their nature, some acts or omissions will give rise more easily than others to the conclusion that all members of a class sustained at least some damages.

[21] The decision in Bywater v. Toronto Transit Commission, [1998] O.J. No. 4913 (Ont. Ct. (Gen. Div.)) may be an example of a case in which it was not reasonably possible to assess common experience damages in the aggregate. Bywater was a case involving claims for damages for personal injury, property damage, and damages under the Family Law Act, R.S.O. 1990, c. F.3. The damages allegedly resulted from a fire in a subway. In Bywater, Winkler J. refused to certify a common issue with respect to aggregate damages. The plaintiffs correctly point out that Bywater was decided without the guidance later provided by the Court of Appeal in Good and the Supreme Court of Canada in Pro-Sys. However, I am not at all certain that it would have been decided any differently if it had been decided after those cases, and not before.

[22] In my view, Bywater was a case in which it was not reasonably possible to assess a base amount of damages suffered by each member of the class because those damages depended upon the precise effect on each class member, if any, of the fire in question. In other words, there was no basis in fact to conclude that each member of the class suffered some minimum level of damages.

[23] This case, however, is not like Bywater. In my view, the present case is one in which a common issues trial judge could determine a base amount of damages without proof of loss for each class member on the basis that every class member’s privacy was breached, and was breached in the same way.

Conclusion

[24] For the foregoing reasons, the question of an aggregate assessment of damages will be certified as set out in Appendix “C” of the certification reasons.

[25] The parties are requested to collaborate on a draft order for my review. If they are unable to agree, a date for a motion to fix the terms of the order should be obtained from the trial coordinator.

[26] I believe it would be best to address the issue of costs once the form of the certification order is settled.

Ellies J. Released: November 29, 2017

[^1]: In the certification decision, I dismissed a request to certify a common issue of liability for “breach of privacy”.