Court File and Parties
Court File No.: CV-11-423023 Date: 2020-03-11 Superior Court of Justice - Ontario
Re: Jared Florence, Dana Florence, Brody Florence, Cole Florence and Taylor Florence, by their Litigation Guardian, Dana Florence, Plaintiffs And: Dr. Suzan Benzaquen, Dr. Jon Fenton Roy Barrett, Defendants
Before: Darla A. Wilson J.
Counsel: Duncan Embury and Daniele Pacheco, Counsel for the Plaintiffs Dana, Brody, Cole and Taylor Florence Tom Curry and Matthew Lerner, Counsel for the Defendant Dr. Benzaquen
Heard: January 22, 2020
Endorsement
[1] The Plaintiffs bring this claim in negligence against Dr. Benzaquen, an obstetrician and gynecologist, as a result of the prescription of a fertility drug called Serophene to Dana Florence in July of 2007. Ms. Florence gave birth to the infant Plaintiffs, Brody, Cole and Taylor (“the triplets”), on January 1, 2008, prematurely. Subsequently, the triplets have been diagnosed with cerebral palsy and it is not disputed that they have serious disabilities as a result of their premature birth.
[2] The mother, Dana Florence, claims that her children were born prematurely as a result of the number of foetuses she carried in utero and as a result, the babies suffered serious injuries.
[3] One of the Defendants, Dr. Barrett, was the obstetrician who managed Ms. Florence’s pregnancy. The action was dismissed on consent against him in August 2015.
[4] The remaining Defendant, Dr. Benzaquen, brings this motion pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to strike the claims of the triplets on the basis that they are not viable at law and should be struck at this juncture.
Positions of the Parties
The Defendant, moving party
[5] Dr. Benzaquen submits that the case law is clear that a defendant cannot owe a duty of care to a future child who has not been conceived where the alleged negligence occurred prior to conception. The claim as framed in the pleadings is that Dr. Benzaquen was negligent in prescribing the fertility drug to Ms. Florence and that but for this negligence, the triplets would not have been born. While the claims of the parents can be asserted, the claims of the triplets are essentially “wrongful life” claims, which the Court of Appeal for Ontario and many other courts have determined cannot be maintained. The purpose of Rule 21 is to dispose of claims which have no merit at an early point in the litigation and the claims of the triplets should be dismissed.
The Plaintiffs, responding parties
[6] The Plaintiffs argue that the law in the area is not settled and this claim is a novel one that is factually different than other cases the court has considered. Hence, the court needs a full factual and evidentiary record at trial to determine whether the claims are viable. It is not plain and obvious that the claims of the triplets will fail. The motion ought to be dismissed.
Analysis
Rule 21 and timing of the motion
[7] This is a Rule 21 motion, which provides for the determination of a question of law raised by a pleading where such a determination would dispose of all or part of the action, or substantially shorten the trial. Rule 21 motions may also be used to strike out a pleading on the ground that it discloses no reasonable causes of action. In a Rule 21 motion, the judge must take the facts as pleaded as true and it is on this basis that the potential success of the claim will be measured. No evidence is admissible on a Rule 21 motion without leave of the court or the consent of the parties.
[8] The moving party must prove that, assuming the facts pleaded are true and proven, it is plain and obvious there is no reasonable cause of action. Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959. The threshold for success on a Rule 21 motion is high; the claim as pleaded must have no possibility of success.
[9] The Supreme Court of Canada has stated that striking claims with no reasonable prospect of success “is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial.” R. v. Imperial Tobacco Canada Ltd, 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 19.
[10] It is the position of counsel for the Plaintiffs that this motion is premature and ought to be dealt with at trial where a full evidentiary record is available. Previously, I heard submissions on this issue and in my endorsement of July 4, 2019, I wrote:
While counsel for the Plaintiffs submits that it would be unfair to the Plaintiffs to “attempt a quick disposition of the matter in the absence of a full evidentiary record”, I do not accept this submission. The essence of a Rule 21 motion is that it can be determined on the pleadings only because it is plain and obvious the claim cannot succeed. The purpose of Rule 21 motions is to strike out claims that have no chance of success based on the pleadings; the threshold is necessarily high.
[11] In my view, generally, Rule 21 motions should be heard at the earliest date. Depending on the nature of the case, such a motion could be brought immediately after pleadings. Other cases might require examinations for discovery to be held. In the instant case, the motion has been discussed between counsel and the defence has maintained the position from the beginning that the infants have no valid claim at law.
[12] The Plaintiffs argue there is no benefit to either party having the motion heard in advance of trial; I do not agree. The Defendant is entitled to know the case it has to meet at trial. The Plaintiffs need to know what sort of evidence to marshal on the various claims at trial. The validity of the infants’ claim is a question of law and one that is amenable to a determination prior to trial.
[13] Rule 21 is intended to dispose of claims that have no chance of success because they have no basis in law. Such motions are argued without evidence, and based strictly on the pleadings, because evidence is not necessary for the court to determine whether the claims could potentially succeed. If evidence is necessary in order to enable the court to rule on the motion, then the motion will be dismissed.
[14] In my view, it is preferable for the court to decide Rule 21 motions well in advance of trial, so that the issues for adjudication are clarified at an early stage and time and expense is not wasted on developing and defending such claims, only to have them struck out at the opening of trial. There is no advantage to be gained by delaying this motion until trial; an evidentiary record is not necessary, since the motion is determined on the pleadings.
The law on wrongful life cases
[15] A claim for wrongful life is one that is asserted by the child for a pregnancy that results in birth defects and where the child argues that but for the negligence of the doctor the baby would not have been born. The Canadian courts have examined this type of claim on numerous occasions.
[16] In the 1999 case Dobson (Litigation Guardian of) v. Dobson, [1999] 2 S.C.R. 753, the Supreme Court of Canada examined whether a child could bring an action against his mother arising from her negligence while she was driving and claim compensation for the injuries sustained while he was a foetus. The lower courts permitted the claim; the Supreme Court allowed the appeal, finding there could be no duty of care imposed on a woman towards her subsequently born child. The Supreme Court’s decision was inextricably tied to the fact that the alleged negligence was that of the pregnant woman, who was being sued by her child. While factually different from the instant case, the analysis is helpful.
[17] In Dobson, the court explained:
The foetus has no cause of action. There is no doubt that a foetus can be injured in a car accident. But this physical injury is not an actionable harm. […] It is legally meaningless until it arises as the suffering of a legal person—the born alive child. Had there been no birth, no legally recognized injury would have taken place. Birth transforms the physical injury sustained by the foetus in to an actionable harm. Not the injury to the foetus but the injury to the born alive child’s mental and physical functioning is actionable. Dobson, at para. 100
[18] In Lacroix (Guardian of) v. Dominique, 2001 MBCA 122, 202 D.L.R. (4th) 121, a claim was brought because of physical and cognitive abnormalities caused by epilepsy medication the mother was prescribed while pregnant. The Manitoba Court of Appeal described this case as one of wrongful life because had the mother known the effect of the medication, she either would not have taken the medication while pregnant or she would not have become pregnant, and thus the child with disabilities would not have been born.
[19] In Lacroix, the court did not recognize an action for wrongful life, following the reasoning of the English Court of Appeal in McKay v. Essex Area Health Authority, [1982] 1 Q.B. 1166 (Eng. C.A.), in which the court found there was no duty of care of a physician to the foetus to “urge its destruction”. Lacroix, at para. 33. The court in Lacroix stated:
Can it be said that the doctor owed the future child a duty of care not to prescribe a medication for the mother which he knew carried the risk of injuring a fetus? The imposition of such a duty would immediately create an irreconcilable conflict between the duty owed by the doctor to the child and that owed to the mother. […] The fact that the child’s injury was caused by the medication does not result in liability against the doctor as he was under no duty of care to the child. And the damages are impossible to assess. Lacroix, at para. 38.
[20] In its analysis, the court categorized the different claims advanced by infants, noting:
[C]ases involving a claim by a child born with abnormalities generally fall within one of two categories: (i) cases in which the abnormalities have been caused by the wrongful act or omission of another; and (ii) cases in which, but for the wrongful act or omission, the child would not have been born at all. Lacroix, at para. 24.
[21] Cases falling into the first category include situations where the mother was prescribed a medication while pregnant, and as a result, the foetus was born with abnormalities—for example, thalidomide cases. They would also include other types of cases where the foetus was harmed due to the direct negligence of a treatment provider, such as a botched abortion case Cherry v. Borsman, [1992] B.C.J. No. 1687 (C.A.) or perhaps a negligently performed amniocentesis.
[22] The Lacroix court then explained cases that would fall in the second category:
Cases within the second category typically involve the failure of a doctor to warn the mother of the risk of giving birth to an abnormal child as a result of a factor over which the doctor has no control. […] [T]he doctor’s negligence has not caused the injuries to the child. The only consequence of the doctor’s negligence is that the mother has been deprived of the option of avoiding conception or of having an abortion. Lacroix, at para. 27.
[23] In Lacroix, the court noted these claims had been rejected on the basis that imposition of a duty on doctors to a future child is contrary to public policy as well as noting that it would be impossible to assess damages.
[24] The court in Lacroix concluded:
I am unable to accept that an action for wrongful life should be recognized in Canada. I find the reasoning in McKay v Essex Area Health Authority too compelling to do otherwise and I am unaware of any Canadian circumstances which would cause judges here to think differently. […] It is thus quite clear that if the doctor had fulfilled his duty of care to the mother, the child would not likely have been born. The fact that the child’s injury was caused by the medication does not result in liability against the doctor as he was under no duty of care to the child. Lacroix, at paras. 37, 41.
[25] The two leading Ontario appellate cases to which both counsel referred extensively are Bovingdon (Litigation Guardian of) v. Hergott, 2008 ONCA 2, 88 O.R. (3d) 641 and Paxton v Ramji, 2008 ONCA 697, 92 O.R. (3d) 401.
[26] Bovingdon is factually very similar to the instant case. The Plaintiff mother gave birth to twins with serious disabilities after taking a fertility drug prescribed by her physician. She alleged the defendant doctor had not informed her of the risks of taking the drug and had he done so, she would not have taken it and therefore she would not have become pregnant with twins. The court addressed the precise issue of whether the infant Plaintiffs conceived when their mother was prescribed fertility drugs—resulting in multiple births—could claim in negligence against the doctor who prescribed the medication.
[27] In its analysis in Bovingdon, the court stated that trying to place cases into one of the categories suggested in Lacroix was not a useful way to proceed. Rather, the court recommended the usual approach to tort liability be employed: determining if there was a duty of care; what was the standard of care; was there a breach; and damages. The Court of Appeal in Bovingdon identified the difficulties presented by cases of wrongful life:
How can the child be compensated for being born? How can a court give damages that measure the value of no life versus a damaged life? And from a metaphysical point of view, does it make sense to allow such an action, given that if the child had not been born, he or she would not have been able to bring the action at all? Bovingdon, at para. 37.
[28] The court observed that the real issue for determination in each case was whether the doctor owed a duty of care to the future child or children under the circumstances. In Bovingdon, the court found the doctor owed no duty of care to the unconceived foetus and as a result, dismissed the action of the infant.
[29] In Paxton, the defendant doctor prescribed Accutane, a drug for the treatment of acne, to the Plaintiff who became pregnant shortly thereafter, and her child was born with both physical and mental disabilities. The Court of Appeal considered the imposition of a duty of care on physicians to unborn children. It concluded that the proposed duty of care did not fall within an established category of relationship giving rise to a duty of care, and thus it was a novel one. Consequently, the court stated it was necessary to proceed with the two-stage Anns v. Merton London Borough Council (1977), [1978] A.C. 728 (U.K. H.L.) test to determine whether the proposed duty of care should be recognized in law. The analysis was set out by the House of Lords in Anns v. Merton London Borough Council (1977), [1978] A.C. 728 (U.K. H.L.) and somewhat reformulated but consistently applied by the Supreme Court of Canada, most notably in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537.
[30] The court found that the categorical approach articulated in Lacroix was not the best analysis. Instead the court stated that “the duty analysis is the analysis a court must apply to determine whether a duty of care is owed and as a consequence, whether an action for negligence lies in a particular case.” Paxton, at para. 86. The court concluded that there was no duty of care owed by the mother’s doctor to a potential future child, so the claim could not succeed and it was dismissed.
[31] In Liebig v. Guelph General Hospital, 2010 ONCA 450, 321 D.L.R. (4th) 378, decided after Bovingdon and Paxton, the baby sued the doctor for injuries received during the delivery process. The court found that as the facts of the case fell into an established category where a duty of care was found to exist, it was not necessary to engage in the Anns analysis.
[32] The court provided guidance in the proper analysis to be undertaken in wrongful life claims and it endorsed the approach set out in Paxton:
Cases in the vein of Bovingdon and Paxton which involve claims made by infants yet to be conceived at the time the alleged negligence occurred, have been characterized and rejected by other courts as claims for “wrongful life”: [citations omitted]. In Bovingdon and Paxton this court held that the “wrongful life” approach ought not to be used. The court proceeded not by determining whether to recognize a claim for “wrongful life”, but by conducting an analysis of whether a doctor owed a separate duty of care to a future child. Both Bovingdon and Paxton hold that there is no duty of care to a future child if the alleged negligence by a health care provider took place prior to conception. Liebig, at para. 11.
Application of the law to the facts of this case
[33] In order to determine this motion, the court must examine the nature of the claims being advanced as set out in the pleadings. In the Notice of Action issued March 25, 2011, it is pleaded “The Plaintiffs Brody Florence, Cole Florence and Taylor Florence, by their Litigation Guardian Dana Florence, are Jared Florence and Dana Florence’s children and bring this action in their own right and pursuant to the provisions of the Family Law Act, R.S.O. 1990, c.F-3 as amended.”
[34] Section 61(1) of the Family Law Act, R.S.O. 1990, c.F-3, provides that if a person is injured or killed by the fault of another under circumstances where the person is entitled to recover damages, then relatives of the injured person are entitled to recover their pecuniary losses resulting from the injury, as well as an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury or death had not occurred. It is unclear to me how the claims of the triplets are asserted pursuant to the provisions of the Family Law Act.
[35] The Amended Statement of Claim pleads the following allegations, which are relevant to this motion: that as a result of the negligence of the Defendants, the triplets will require extraordinary care and services including assistance with all activities of daily living; that Dr. Benzaquen was negligent in her diagnosis and treatment of Dana; that Dr. Benzaquen failed to advise Dana of the significant increase in the risk of conceiving multiples, including, but not limited to, an increase in the risk of premature birth and the resulting potential for significant neurological and developmental injuries to the child/children; if Dana had been aware of the significant risks associated with multiple births she would not have taken Serophene; and that as a result of the negligence the Plaintiffs have suffered loss of care, guidance and companionship.
[36] For the purposes of this motion, I accept the pleadings as true: that Dr. Benzaquen was negligent in prescribing Serophene to Ms. Florence as it was unreasonable and unnecessary for her; that she was not provided with information concerning the risks of multiple and premature births and the resultant injuries to the babies associated with taking the medication; and that she took the fertility drugs prescribed by the Defendant and as a result, she became pregnant with triplets who were born with very serious disabilities because of the prematurity of their birth.
[37] The allegations of negligence against Dr. Benzaquen all relate to her care and treatment of the mother of the triplets. There is no pleading of a duty owed to the triplets by the Defendant Dr. Benzaquen in any capacity.
[38] It is clear that Dana Florence can maintain a claim in negligence against Dr. Benzaquen based on the prescription of the fertility drug to her and the alleged lack of informed consent; she claims as part of her damages that she and her husband have incurred and will continue to incur extraordinary costs for the care and treatment of the triplets. Further, she can maintain her loss of income claim as a result of her inability to return to work.
[39] While it is alleged that the ability of the minor Plaintiffs to perform daily tasks and earn a living has been impaired, there are no specific claims of damages sustained by the triplets pleaded in the amended Statement of Claim.
[40] Canadian law is settled that a child can sue for injuries as a result of negligence committed while in the womb by third-party tortfeasors. Montreal Tramways Co. v. Leveille, [1933] S.C.R. 456. The law on this point was confirmed in Liebig. In such cases, the babies born alive with injuries can point to the negligent act that caused the injury: for example, a car being driven carelessly collides and the force of the impact causes injury to the foetus; or a doctor performing a Caesarian section who injures the foetus in the course of the surgery.
[41] However, the alleged negligence here arises from a prescription given to the mother of the infant Plaintiffs by the Defendant. There was no injury to the foetus arising from a negligent act because conception had not taken place. Accepting the medication ought not to have been prescribed to Dana Florence in her particular circumstances—and that this was an act of negligence—the medication itself did not cause birth defects, as was the case in Paxton. The Serophene did not cause the neurological injuries to the babies. According to the pleadings, it increased the likelihood of multiple births and premature delivery, which resulted in impairments.
[42] The claims of the triplets are that they would not have been born had the negligence not occurred. This case is one which has been described by the courts as a wrongful life claim.
[43] Counsel for the Plaintiffs suggests that the instant case is analogous to the case of an engineer who designs a bridge negligently, causing a person who was not born at the time of the negligence to suffer injuries a number of years hence. I do not see that scenario as analogous to the facts of the instant case. While it is true that the injured party was not born at the time of the negligence, the duty held by a professional engineer designing a bridge for use by the general public is different than that of a doctor caring for a woman trying to conceive.
[44] An engineer designing a bridge knows that it will be used for many years by many people, a large number of whom would not be alive at the time the bridge was designed and built. The engineer has a duty of care to the people who will use the bridge because he is retained to construct a bridge that is safe for members of the public using it for many years. That is a very different duty than the duty of a doctor caring for a woman hoping to become pregnant. The duty of the doctor is to his patient; it is not to a child who has yet to be conceived.
[45] In Paxton, it was suggested that the relationship between a negligent driver and an unborn child was the same as between a negligent doctor and the unborn child. The court noted:
In my view, the relationship between a doctor and a future child of a patient cannot be viewed as analogous to the relationship between a user of the roadway and a woman’s future child. Doctors, unlike other third parties, are in a unique relationship with a patient’s future child, by virtue of the recognized common law duty that doctors owe to the pregnant woman who is their patient. This distinction gives rise to significant policy considerations that are not present in the context of an unrelated third party user of the roadway and that makes it inappropriate to treat this category as analogous. Paxton, at para. 57.
[46] This same reasoning can be applied to the situation with an engineer who is negligent and causes damage to an unborn child. The relationship is not analogous to that of a doctor to his patient.
[47] I agree with Mr. Embury’s submission that the court has not said that a wrongful life claim could never be successful. In Bovingdon, Feldman J.A. specifically commented that it was unclear whether the courts would necessarily dismiss every claim for wrongful life. Bovingdon, at para. 73.
[48] The Bovingdon court stated that in order to determine whether the claims of unborn children can be maintained, it is necessary to decide in each case whether the doctor owed a duty of care to the future child or children under the circumstances. If such a duty has been found to exist, then the court will consider the standard of care, whether there has been a breach of it and the damages that flow. This is the traditional torts analysis. If such a duty has not previously been recognized, as in the case at hand, then the court must undertake an Anns analysis. To determine this motion I must address the issue of whether the claims of the triplets advanced in this action, with its own set of facts, has any chance of success.
[49] In R. v. Imperial Tobacco Canada Ltd, 2011 SCC 42, [2011] 3 S.C.R. 45, the Supreme Court set out the approach to be undertaken to determine if a duty of care exists: is there a relationship based on the pleadings that has been recognized as giving rise to a private duty of care? If not, a two-part test must be undertaken according to Anns v. Merton London Borough Council (1977), [1978] A.C. 728 (U.K. H.L.). First, when examining the relationship between the two parties, is there a relationship of proximity in which a failure to take reasonable care might foreseeably cause loss or harm to a party? If so, then a prima facie duty of care arises. Next, are there policy reasons why the prima facie duty of care should not be recognized?
[50] The court dealt directly with this issue in Paxton, noting that for legal proximity to exist, the relationship between the doctor and the unborn child must be both “close and direct”. Paxton, at para. 75. In that case, the court found that the relationship between a physician and a future child is indirect and the doctor cannot provide recommendations to a future child nor take instructions from the child. The proximity requirement was not met.
[51] Mr. Embury submits that when the Anns test is applied to the facts of the instant case, the injuries to the triplets were reasonably foreseeable such that there is sufficient proximity between the parties to find a duty of care. In my view, that analysis is faulty because it conflates the issues of informed consent with foreseeability and fails to follow the proper analysis to determine if a duty of care exists. Of course, it is foreseeable that if a woman takes fertility medication, she could have multiple eggs fertilized; that does not establish a relationship of proximity between the woman’s doctor and her unborn children.
[52] The Anns analysis in this case requires a consideration of the relationship between the physician and the future babies. For the same reasons articulated in Paxton, I do not find this relationship to be one that is close and direct, and thus it lacks the necessary proximity to establish a prima facie duty of care. It is a different relationship between the mother and her doctor, where there is proximity and where it is foreseeable that negligence might cause harm. To impose a duty of care on Dr. Benzaquen to the unborn children not to cause harm in addition to the duty of care to the mother could create a conflict of interest in terms of the treatment offered to the woman; it could place the defendant doctor in an impossible position because of competing duties owed. This is the same reasoning employed by the court in the Bovingdon and Paxton decisions, which found no duty of care owed to the unborn children.
[53] Dr. Benzaquen had a duty to Ms. Florence to provide her with recommendations and treatment to assist her to conceive. Ultimately it is Ms. Florence’s decision as to whether to take fertility medication with the associated risks. Perhaps the decision of the mother is not in the best interests of the unborn child, but if the doctor also has a duty of care to that future child, she is placed in a clear conflict of interest. How does a doctor in this situation fulfil the duty of care to protect a future child from harm?
[54] I agree with the comments of Feldman J.A. in Paxton where she concluded there could be no duty of care of the doctor to the unborn child, noting: “Recognizing a duty of care by a doctor to a future child of a female patient would affect the doctor’s existing legal obligation, which is to the patient. […] [U]ntil a child is born alive, a doctor must act in the best interests of the mother […]”. Paxton, at para. 79.
[55] Mr. Embury submits that the case at hand can be distinguished from Bovingdon, which was solely an informed consent case, because the instant case has additional allegations of negligence against Dr. Benzaquen. The Plaintiffs argue the prescription of Serophene was negligent; had that negligence not occurred, she would not have taken the fertility drug and would not have become pregnant with multiple babies. I do not accept this argument; it is a distinction without a difference in my view. The additional allegations of negligence do not change the analysis that must be undertaken to determine if a duty of care is owed to the unconceived children. Accepting the prescription of the fertility drug to Dana Florence was contraindicated given her particular situation, and accepting that she was not apprised of its risks, it still remains that to advance the wrongful life claims, the triplets must establish negligence on behalf of Dr. Banzaquen, and to do so, there must be a duty of care on the defendant doctor to them.
[56] In Bovingdon, on very similar facts, the court found that there was no duty of care owed by the defendant doctor to future children not to cause them harm in prescribing fertility drugs to the mother:
The doctor owed a duty of care only to the mother, which duty consisted of ensuring that she possessed knowledge sufficient to make an informed decision whether to take Clomid. This knowledge included the increased risk of conceiving twins arising from the drug, the increased potential for premature birth in a twin pregnancy, and the possible harm to the children that could result from premature birth….where the standard of care on the doctor is to ensure that the mother’s decision is an informed one, a co-extensive duty of care to a future child would create a potential conflict of interest with the duty to the mother. Bovingdon, at paras. 70-71.
[57] In Bovingdon, the court analyzed the duty of care of the physician, stating:
Because the doctor’s duty with this type of drug is only to provide information sufficient to allow the mother to make an informed choice, it cannot be said that the children have a right to a drug-free birth. Nor can the doctor owe a duty to the children that is co-extensive with his duty to the mother. To frame the duty in that way is to overlook the fact that the choice is the mother’s; she is entitled to choose to take the drug and risk conceiving twins without considering their interests. If she does, the children have no complaint against her or the doctor. […] I conclude that in this case, the appellant had no duty of care to the future children not to cause them harm in prescribing Clomid to the mother. The doctor owed a duty of care only to the mother, which duty consisted of ensuring that she possessed knowledge sufficient to make an informed decision whether to take Clomid. This knowledge included the increased risk of conceiving twins arising from the drug, the increased potential for premature birth in a twin pregnancy, and the possible harm to the children that could result from premature birth […] [T]he appellant did not owe a future child or children a duty of care in the circumstances of this case, there could be no breach of duty to the twins and no right for them to claim damages. Bovingdon, at paras. 68, 70, 74.
In my view, these comments from the court were directly applicable to the facts of the instant case.
[58] In Paxton, the court also considered the second branch of the Anns test and found that there were policy considerations concerning women’s autonomy as well as the potential for conflicting duties on the doctor such that any duty ought not to be recognized. While it is not necessary for me to proceed with the second stage of the analysis, I note that those same considerations are present here.
[59] Mr. Embury submits that the claims of the triplets ought not to be dismissed on this motion at this juncture. I disagree. The facts of Bovingdon and the claims advanced by the twins in that case are virtually identical to those in the instant case. The court found there could be no duty of care owed by the doctor to the unborn children in Bovingdon. Following the reasoning in Bovingdon, the claims asserted by the triplets cannot succeed; Dr. Benzaquen owed a duty of care to Dana Florence but owed no duty of care to the unconceived babies, and thus she cannot be found to be negligent in her provision of care to the triplets. The additional allegations of negligence asserted against Dr. Benzaquen do not change the analysis that must be undertaken to determine if the triplets have a claim in law.
[60] The appellate court in Ontario has rejected wrongful life claims, and the lower courts are bound by this jurisprudence. Counsel were unable to point me to any Canadian case where the court found a duty of care owing by the mother’s doctor to the unborn babies such that negligence could be imposed. While I accept that Bovingdon may have left the door ajar for wrongful life claims depending on the facts, in my view, the door was definitely closed for cases arising out of the prescription of fertility drugs that results in premature births and babies with abnormalities, such as the case at hand.
[61] More recently, the Superior Court noted in Shannon v. St. Catharines General Hospital, 2009 ONSC 5400:
An informed consent claim is a claim available to the mother only. The Ontario Court of Appeal unanimously held that a physician providing treatment and care to a pregnant woman owed no duty of care to a potential future child in Paxton v. Ramji. Whether other provinces agree or disagree with this proposition of law is irrelevant. In Ontario, this question of law has been settled. Shannon, at para. 40.
[62] I do not agree there is a lack of clarity in the law of Ontario dealing with wrongful life claims or that the law is unsettled in cases involving negligence that allegedly occurred prior to conception that is associated with prescription medication taken by the mother with resulting damage to babies that were not conceived at the time of the negligence. These claims have never been recognized in Ontario; the law is clear and there is no need to wait until trial to determine whether such claims are viable.
[63] In my view, the law is clear that the claims of the triplets cannot succeed, and consequently, the defence motion is granted. The claims of the infant Plaintiffs are dismissed without leave to amend. If counsel cannot agree on costs, I may be contacted.
Darla A. Wilson J. Date: March 11, 2020