Court File and Parties
COURT FILE NO.: CV-17-577970-00CP DATE: 20190320 SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Lina Rizzi, Plaintiff – AND – Dr. Vivek (Vick) Handa, Upper Middle Dental and Vick Handa Dentistry Professional Corporation, Defendants – AND – Fadwa Balestra, Judy Bondi, Sara Bouchard, Diana Campbell, Tiffany Campbell, Crystal Caverley, Brooke Comrie, Andrea Dyack, Mariam Shahbana Farooq, Amanda Fuller, Nicole Elizabeth Garside, Viktoriya Gonchar, Karima Heidary, Kelli-Lee Anne Howie, Manpreet Jodha, Kim Jones, Anita Lynsdale, Lori McDonald, Stacey Linda Parker, Vihangi Patel, Tamsan Puley, Pam Sandhu, Tina Singh, Helen Thuy-Duong Vu, and Jane Doe, Third Parties
BEFORE: E.M. Morgan J.
COUNSEL: Sean Brown and Candace Mak, for the Plaintiff Eric Baum, for the Defendants Ejona Xega, for Third Parties Diana Campbell, Brooke Comrie, Andrea Dyack, Nicole Elizabeth Garside, Kelli-Lee Howie, Anita Lynsdale, Vihangi Patel, Helen Thuy-Duong Vu, Kim Jones Jason Mangano, for Third Parties Fadwa Balestra, Judy Bondi, Crystal Caverley, Amanda Fuller, Viktoriya Gonchar, Karima Heidary, Manpreet Jodha, Pam Sandhu, Tina Singh
HEARD: March 20, 2019
CERTIFICATION OF CLASS ACTION
[1] This is a negligence claim alleging that the Plaintiff and putative class members either contracted, or were exposed to the risk of contracting, or were Family Law Act claimants with respect to those who contracted infectious diseases as a result of improperly sterilized equipment used on them at the Defendants’ dental office. The Defendants have, in turn, issued a Third Party Claim against some 25 dental hygienists who worked in their office at the relevant time.
[2] The Plaintiff seeks to certify the action as a class proceeding pursuant to the Class Proceedings Act, 1992, SO 1992, c. 6 (the “CPA”). The parties have now reached an agreement on the terms of the Certification Order.
[3] There is an identifiable class which is composed of four sub-classes:
a) patients who were infected with Hepatitis B or C or HIV after receiving dental services from the Defendants’ clinic prior to June 9, 2017;
b) persons who were cross-infected and contracted one or more of these diseases from an infected person who received dental services from the Defendants’ clinic prior to June 9, 2017;
c) persons who were exposed to and incurred the risk of contracting these diseases from an infected person who received dental services from the Defendants’ clinic prior to June 9, 2017;
d) parents, grandparents, children, siblings and spouses under the Family Law Act, RSO 1990, c. F-3, of an infected person who received dental services from the Defendants’ clinic prior to June 9, 2017.
[4] The claim raises a cause of action in negligence, and the agreed-upon common issues are all tied to the negligence claim:
Did the Defendants owe a duty of care to the Class Members?
If the answer to Question 1 is YES, what is the standard of care (or standards of care at all material times) prior to June 9, 2017?
Did the Defendants breach the duty of care owed to the Class Members?
If the answer to Question 3 is YES, was it reasonably foreseeable to the Defendants that harm to some or all of the Class Members would result from that breach of duty of care?
If there has been a breach of the duty of care, and if the Class Members sustained harm as a result of the breach of duty of care, are the Class Members entitled to general damages and/or special damages?
If there has been a breach of the duty of care, and if the Class Members sustained harm as a result of the breach of duty of care, can damages be determined for the Class Members on an aggregate basis? If so, what is the quantum of those damages? How will any award of damages be distributed among Class Members?
If there has been a breach of the defendants’ duty of care, is the Ministry of Health entitled to recover the amount paid by it, and in favour of the Class Members, for insured services necessarily arising from the Defendant’s breach of a duty of care owed to the Class Members. If so, what is the quantum of this recovery?
Should the Defendants pay the cost of administering and distributing any recovery, included the cost of giving notice of judgment? If so, in what amount?
[5] The Plaintiff proposes both a short form and long form of Notice of the certified claim. The Notices will be communicated through newspaper advertisements and, since all of the class members are known to the Defendants as their former patients, each potential class member will receive a Notice in the mail to his or her last known address. The Plaintiff and Defendants will share equally in the cost of the mailing of the Notices.
[6] Class members will be advised of the opportunity and procedure for opting out of the action. The Opt-out Deadline will be defined in the Certification Order as 60 days after the claims administrator sends out the Notices by direct mail.
[7] The Plaintiff has provided an affidavit in support of the certification motion, and she appears to be an appropriate representative Plaintiff. She has no conflict of interest with any other class member, and she is aware of and will take seriously her duties in this capacity. Further, counsel for the Plaintiff have produced a litigation plan that appears to me to be acceptable for the purposes of certification.
[8] The Certification Order will specify that it constitutes an authorization for the Defendants to release patient information as required by s. 41(1) of the Personal Health Information Protection Act, 2004, SO 2004, c. 3, Sched. A. This information will go only to the claims administrator for use as necessary in administering the class proceeding. The information will not be released directly to the Plaintiff or her counsel, although they are not prohibited from knowing the names of the Defendants’ former patients if necessary for the administration of the class proceeding.
[9] The action meets the criteria set out in section 5(1) of the CPA and is hereby certified as a class proceeding. There will be an Order to go in the form submitted to me today, with relevant modifications to reflect points elaborated above.
[10] There will be no costs of this motion for or against any party.
Morgan J. Date: March 20, 2019