FERN MCGEE and DR. CHRISTIANE FARAZLI, and C. FARAZLI MEDICINE PROFESSIONAL CORPORATION, 2019, ONSC 6917

COURT FILE NO.: 11-52738 (Ottawa)

DATE: 2019/11/28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

FERN MCGEE, Plaintiff

– and –

DR. CHRISTIANE FARAZLI, and C. FARAZLI MEDICINE PROFESSIONAL CORPORATION, Defendants

Evatt Merchant, for the Plaintiff

Josh Hanet and Irina Samborski, for the Defendants

HEARD: November 13 and 14, 2019

REASONS FOR DECISION

CHARBONNEAU, J.

Nature of the motion

1The Plaintiff brings this motion seeking an order certifying the present action as a class proceeding pursuant to the provisions of the Class Proceedings Act («the Act»).

2The Act provides that the court shall certify an action if:

a. the pleadings disclose a cause of action;

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

c. the claims 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 who:

i) would fairly and adequately represent the interest of the class;

ii) has produced a plan for the proceeding that sets out a workable method of advancing the claim on behalf of the claim 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.

3The defendant concedes that the plaintiff meets the requirements of the Act as representative plaintiff for the class and that the statement of claim discloses a cause of action. However, the defendant submits that the plaintiff has failed to provide sufficient evidence to establish a basis in fact in support of the requirements set out in paragraphs 5 (1) b, 5 (1) c and and 5 (1) d.

Background Facts

4The defendants operated an out-of-hospital clinic where endoscopies were being performed starting in 2002.

5On May 27, 2011, the College of Physicians and Surgeons of Ontario (CPSO) conducted an inspection of the defendants’ clinic and found that some infection control and prevention protocols had not always been followed with respect to disinfection of endoscopic and biopsy equipment. The CPSO concluded that this «major infection lapse» might have exposed patients to blood borne pathogens, including hepatitis C, hepatitis B or HIV.

6The Medical Officer of Health (MOH) was notified and the Ontario Public Health (OPH) investigated and collected data. As a result, the OPH concluded that there was «a very low but, not absent, risk of transmission of hepatitis B, hepatitis C or HIV to the patients who had undergone endoscopic procedures at the clinic».

7MOH then took the following steps to inform the identified 6800 patients who had undergone an endoscopy at the defendants’ clinic between 2002 and 2011. He sent them a written notice and made further efforts to notify other potential patients. Notification proceeded as follows as described in the Medical Health Officer’s interim report to the Ottawa Board of Health:

«Notification of potentially exposed patients began on October 17, 2011.

Registered letters were sent to 6,800 patients, which contained a letter, fact sheets, a customized laboratory requisition form, information on testing for blood borne pathogens (hepatitis B, hepatitis C and HIV), as well as guidance on how to seek medical advice or additional information, and a letter for their primary care physician.

Following the release of information about the infection control lapse, many individuals self-identified as having undergone procedures by D. Farazli at the clinic during the time period in question. Of these, OPH identified 150 individuals (as of December 30, 2011) to include in the investigation, all of whom received a patient information package.

In addition to the mail out, OPH made use of public service announcements in the media. The

Notification effort was underpinned by a plan to ensure that concerned people could obtain information from multiple sources, including their personal physician, OPH staff, OPH’s webpage, social media, and the broader media community. Using a wide range of strategies including mail outs, [phone calls and, where necessary, in-person delivery of letters to individuals’ homes, OPH directly reached over 90% of the total number of patients as of December 30, 2011.

The percentage of patients reached is significantly greater than expected from reports on notification processes in the literature and from colleagues with previous experience in large scale patient notification.

During the first week following the release of the information, OPH’s dedicated phone line was open for over 80 hours; it stayed active until midnight for the first three days to respond to the volume of calls. In the first two months of operation, the phone line received 4,900 calls. In addition, staff responded to emails from concerned residents and affected patients».

8The OPH then proceeded to a «look back» investigation into a number of patients who had undergone the suggested blood tests and were confirmed to be infected by the hepatitis B and hepatitis C virus. In the final report to the Ottawa Board of Health the Medical Officer of Health, on August 31, 2012 indicates that:

«Case Management Results: It remains the case that no transmission of hepatitis B or C or HIV has been confirmed within the clinic where the lapse occurred. »

9The OPH did not try to identify or in any way screen for bacterial infection that might have resulted from undergoing an endoscopy at the defendants’ clinic. The reason for that is that a bacterial infection is quickly detected by symptoms affecting the patient contrary to viral infection which go undetected for years. If the bacterial infection was minor resulting in minor transient symptoms, they are quickly resolved. If an individual had been severally infected with a dangerous pathogen, the patient would have known about it and medical efforts would have been made to eradicate it with all available anti-biotics. There was no evidence of any individual coming forward with evidence of a bacterial infection that could have originated at the defendants’ clinic.

10This action was commenced on November 3, 2011 with Jean-François Farjon and Rebecca Soroka as representative plaintiffs. The statement of claim was amended on May 19, 2016 by substituting Fern McGee as representative plaintiff, removing all paragraphs dealing with Farjon and Soroka and adding paragraphs giving particulars of the claim of Fern McGee.

11The amended statement of claim sets out a claim in negligence, namely that Dr. Farazli, owed the members of the class a duty of care in her capacity as a physician, that she breached her duty of care by not ensuring the instruments she used were properly sterilized and that as a result the members of the class suffered the following harm:

« As a direct and immediate result of the Defendants’ acts or omissions the Class suffered:

(1) inconvenience, embarrassment, being subjected to further medical testing, lost time, travel costs, worry, mental pain and anguish, anxiety, emotional distress, psychological distress or injury, knowledge that they could have been exposed to a communicable disease, injury, loss; and/or,

(2) injury resulting from being put at risk of contraction of a communicable disease such as HIV, Hepatitis B, Hepatitis C, or other illness, conditions, or injury. »

12The statement of claim also pleads a breach of fiduciary duty and damages for a breach of Charter Rights and Freedom as follows:

«Breach of Fiduciary Duty: All of the above constitutes a breach of the fiduciary duties owed by the Defendants to the Plaintiff and the Class.

Breach of Charter of Rights and Freedoms and Charter Damages: The Class’ rights and freedoms, as guaranteed by the Canadian Charter of Rights and Freedoms, were beached, especially and more particularly regarding Section 7 thereof, breaching:

(i) their right to control their bodies as they choose;

(ii) their right to security of the person;

(iii) their right not to be subjected to cruel and unusual treatment;

(iv) their individual interest in their bodily and psychological integrity and their right to be guarded against unjustifiable and impermissible physical risk and increased risks of health complications and death;

(v) their right to receive, in a timely manner, full, frank, and forthright information about activities of the Defendants that have a serious effect on their health and well-being and of all of the health risks;

(vi) their right to decide for themselves as to whether to undergo treatment;

(vii) their right to personal autonomy in personal decision making; and

they apply to this Court to obtain monetary relief including symbolic damages and all other available types of damages and such other remedies as the Court considers appropriate and just in the circumstances.

As a result of the breaches of Charter rights set out above, the Plaintiffs and the Class suffered some or all of the injuries set out above, for which the Defendants are liable, jointly and severally. »

13The statement of claim proposes the following class definition:

«All persons who had a test performed by Dr. Farzali to look at their gastrointestinal system between April 1st, 2002 and June 1st, 2011»

14Except for one other person Peter Hopkins, plaintiff’s counsel has not been able to identify any other potential class member notwithstanding the fact that the OPH notified 6,800 persons almost 9 years ago and undertook a further extensive public notification process.

15As a result of the notification by OPH, Peter Hopkins agreed to undergo a blood test which identified that he had been somehow infected by the Hepatitis B virus in the past. Anti-bodies found in his body confirmed this and by 2011 the virus had been eradicated by his immune system. On March 13, 2019, 8 years after the action was started and he had developed chronic kidney failure , Peter Hopkins filed an affidavit in which he claims that he suffers from chronic kidney failure caused by the infection of the Hepatitis B virus that he claims he suffered as a result of the colonoscopy he underwent at the defendants’ clinic sometime in 2004.

16There is no medical evidence from the plaintiff that could establish that Mr. Hopkins’ chronic kidney disease was in any way linked to the coloscopy performed by Dr. Farazli. The only medical evidence on this issue is the expert opinion of Dr. Merchant, who provided an opinion at the request of the defendants on the subject. He writes in his opinion letter:

« This infection was in no conceivable way related to his 2004 colonoscopy. There is no biological plausible scenario in which the two events could be linked».

Furthermore the «look back» done by OPH no HIV infection could be traced back to the defendants’ clinic.

17The evidence of Mr. Hopkins falls short of establishing a basis in fact that he has a potential claim against the defendants. The plaintiff in her written submissions explains the purpose of Mr. Hopkins evidence as follows:

«Mr. Hopkins’ evidence is tendered solely to demonstrate to the Court that there are a range of Class members who desire that this litigation go forward as a class proceeding on their behalf (as some Courts have in the past required affidavits from numerous class members before granting certification). His evidence is some basis in fact for the existence of a class, and nothing more.».

18For the reasons set out below I disagree with the plaintiff’s statement that the affidavits filed demonstrate a basis in fact of the existence of a class of 2 or more. It is noteworthy that the plaintiff has failed to bring forward any evidence that there exists any other member of the «potential» class who has expressed an intention to participate in the litigation, nor any evidence of the existence of any person who claims to have suffered emotional trauma or who claim having been infected by a pathogen that could have originated from having undergone an endoscopy at the hands of Dr. Farazli. There is rather very probative evidence that there was no outbreak of communicable disease emanating from the defendants’ clinic. Although this is not usually fatal to the plaintiff’s motion, in the context of the very long period of time which has elapsed in this case and the substantial public and private notices given to potential class members, it is certainly an element which must be taken into account in determining whether the plaintiff has brought forward evidence establishing that a basis in fact of the existence of a class of two or more persons.

19It is well established that a motion seeking to have an action approved as a class action is procedural in nature and the merits of the claim asserted by the plaintiff is not in issue. Once the pleadings establish a cause of action, which is not in dispute here, the plaintiff must simply put forward sufficient evidence to show that there is at least a basis in fact that the other four (4) criteria set out in section 5 of the Act are present.

20For the reasons mentioned above, in the context of the particular circumstances of this case, I conclude that the plaintiff has failed to adduce any evidence that there is a basis in fact that there is a class of two or more persons. When asked whether counsel had received any information of any potential class members other than Mrs. McGee and Mr. Hopkins counsel could not provide any. As for Mr. Hopkins, the plaintiff has not provided any expert evidence supporting the conclusion that Mr. Hopkins` chronic kidney failure might have been caused by an infection by the HIV virus during the endoscopy which then caused his liver disease. Nor is there any evidence that the HIV infection originated from the defendants’ clinic. Simply providing the testimony of Mr. Hopkins of his belief that this is the case is not sufficient for a basis in fact on the facts of this case.

21In Sun-Rype [2013] S.C. 58 at paragraph 67 and 68, Justice Rothstein made the following comment :

67. The appellants’ claim that «although some class members may not be able to self-identify, class membership is determinable by reference to the nature of the purchases made by each individual and the quantity of HFCS in the products purchased» (response factum, at para. 714). However, this is no answer to the self-identification problem. While there may have been indirect purchasers who were harmed by the alleged price-fixing, they cannot self-identify using the proposed definition. Allowing a class proceeding to go forward without identifying two or more persons who will be able to demonstrate that they have suffered loss at the hands of the alleged overcharges subverts the purpose of class proceedings, which is to provide a more efficient means of recovery for plaintiffs who have suffered harm but for whom it would be impractical or unaffordable to bring a claim individually. In this case, class membership is not determinable.

68. Built into the class certification framework is the requirements that the class representative present sufficient evidence to support certification and to allow the opposing party to respond with its own evidence (Hollick, at para. 22). The goal at the certification stage is to ensure that this is an appropriate matter to proceed as a class proceeding (Pro-Sys, at para. 104). And while the certification stage is not a preliminary trial of the merits, “the judge must be satisfied of certain basic[c] facts required by [the CPA] as the basis for a certification order». (Taub V. Manufacturers Life Insurance Co. (1998), 1998 ONSC 14853, 40 O.R. (3d) 379 ( Ont. Gen. Div.) at p. 381).

22Similarly the Supreme Court of Canada in Pro-Sys Consultants Ltd v Microsoft Corporation, 2013 SCC 57, 2013, 3 SCR 477 at paras 103-104 points out::

103. Nevertheless, it has been well over a decade since Hollick was decided, and it is worth reaffirming the importance of certification as a meaningful screening device. The standard for assessing evidence at certification does not give rise to «a determination of the merits of the proceeding». (CPA, s. 5 (7) nor does it involve such a superficial level of analysis into the sufficiency of the evidence that it would amount to nothing more than symbolic scrutiny.

104. In any event, in my respectful opinion, there is limited utility in attempting to define «some basis in fact» in the abstract. Each case must be decided on its own facts. There must be sufficient facts to satisfy the applications judge that the conditions for certification have been met to a degree that should allow the matter to proceed on a class basis without foundering at the merits stage by reason of the requirements of s. 4 (1) of the CPA not having been met.

23I conclude that the plaintiff has failed to establish a basis in fact for the existence of a class of 2 or more persons.

24For all of these reasons, the plaintiff’s motion is dismissed. Counsel for the defendants may provide me with brief written decisions on costs within 20 days, counsel for the plaintiff may respond within 15 days thereafter. I will accept a reply from the defendants if need be within 5 days.

The Honourable Justice M.Z. Charbonneau