ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GENEVIÈVE BONENFANT and JEAN-FRANÇOIS LOZIER
Plaintiffs
-and-
DR. JONATHAN PONESSE, DR. ANNE GRAVELLE, DR. LISA WHITE and DR. KAREN PALAYEW
Defendants
Tara Sweeney and Ryan Garrett, for the plaintiffs
Jaan E. Lilles, Andrea Wheeler and Sarah Bittman, for the defendant, Dr. Jonathan Ponesse
Brieanne Brannagan, for the defendants, Dr. Anne Gravelle and Dr. Lisa White
HEARD at Ottawa: 8 September 2021 (by video conference)
MEW J.:
REASONS FOR DECISION
Overview
1This action involves claims by the plaintiffs against a number of physicians involved in the treatment of their son, Augustin Lozier, who was born on 4 December 2011.
2The plaintiffs claim that one or more of the defendants should have made them aware that Augustin had a genetic disorder known as Fragile X Syndrome and/or that Geneviève Bonenfant was a carrier of this genetic disorder. Had they done so, Ms. Bonenfant would have arranged for in vitro testing when she became pregnant again and, if the foetus was found to have Fragile X Syndrome, would have terminated the pregnancy.
3There are presently two motions before the court.
4The plaintiffs seek to make certain amendments to their statement of claim. These amendments are opposed by the defendant Dr. Ponesse on the ground that their effect is to plead a new cause of action, which would be statute-barred due to the expiry of the limitation period.
5Dr. Ponesse brings a motion to strike out the statement of claim, whether amended or not, on the basis that it discloses no reasonable cause of action against him. His position is grounded principally on the uncontested fact that the plaintiffs were not Dr. Ponesse’s patients.
6For the reasons that follow, the plaintiffs’ motion to amend the statement of claim is granted, and Dr. Ponesse’s motion to strike is dismissed.
Background
Background
7I have confined myself, in providing the context for these motions, to the pleaded facts in the unamended statement of claim. While affidavit evidence was provided in connection with, and is admissible on the motion to amend, the motion to strike falls to be determined on the basis that the facts, as pleaded, are presumed to be true.
8Shortly after he was born, Augustin exhibited a series of medical concerns, including feeding difficulties, food intolerances, irritability, sleep issues, and delayed communication and other developmental progress. He was eventually seen by Dr. Ponesse on 8 and 15 April 2013 at the Ottawa Children’s Treatment Centre. Dr. Ponesse is a developmental paediatric neurologist.
9During the course of this assessment, Ms. Bonenfant alleges that she requested that all available blood work be done on Augustin to rule out any conditions that might be the cause of the developmental delay. Following his assessment, Dr. Ponesse made a diagnosis of global developmental delay. He recommended a referral to the Ottawa Children’s Treatment Centre for services in speech and language therapy, as well as occupational therapy. The plaintiffs allege that Dr. Ponesse also reported that he had given Ms. Bonenfant a requisition for bloodwork as a consequence of the diagnosis of global developmental delay.
10The plaintiffs allege that Dr. Ponesse did not discuss the advisability of genetic counseling with Ms. Bonenfant, that the bloodwork requisitioned by Dr. Ponesse did not include any screening for the purposes of genetic testing, and that he made no referral to the Department of Genetics at the Children’s Hospital of Eastern Ontario (“CHEO”).
11On May 16, 2013, Ms. Bonenfant learned that she was pregnant.
12Augustin saw Dr. Ponesse again on 22 August 2013. The statement of claim pleads that:
Dr. Ponesse subsequently incorrectly reported in his November 6, 2013 written report of this visit that Augustin’s blood work for chromosomal micro array was within normal limits, with a normal malekaryotype and no genetic duplications or deletions on micro array. In fact, such blood testing had neither been requested or completed at that time.
13Ms. Bonenfant gave birth to her second son, Etienne, on 15 January 2014. Shortly after his birth, Etienne began to experience medical and developmental problems that were similar to, but in some areas more severe than, those experienced by Augustin.
14On 11 November 2016, Etienne was diagnosed with Fragile X Syndrome. Fragile X Syndrome is a genetic disorder, which can be passed by a carrier mother to her male children. As a consequence of Etienne’s diagnosis, Augustin was referred to the Department of Genetics at CHEO and, on 7 February 2017, Augustin was also diagnosed with Fragile X Syndrome.
15The plaintiffs allege that if Ms. Bonenfant had been aware that Augustin had Fragile X Syndrome, and/or that she was a carrier of this genetic disorder at any time during her pregnancy with Etienne, she would have arranged for in vitro testing and would, if the foetus was found to have Fragile X Syndrome, have terminated the pregnancy.
Motion to Amend
Motion to Amend
16The statement of claim in its unamended form alleges that Dr. Ponesse was negligent, providing the following particulars (at paragraph 35 of the pleading):
(a) He failed to alert Geneviève as to the possibility that Augustin had a genetic anomaly which would explain many or all of his medical problems and his global developmental delay.
(b) He failed to perform any testing to assess Augustin for Autism Spectrum Disorder when the signs and symptoms exhibited by Augustin indicated that he should do so.
(c) He failed to refer Geneviève and/or Augustin to the CHEO Department of Genetics for assessment and/or testing when he knew or ought to have known that it was prudent for him to do so.
(d) He failed to arrange for genetic testing to be performed on Augustin when he knew or ought to have known that it was prudent for him to do so.
(e) By arranging for blood testing following the April 2013 assessments for Augustin, he led Genevièveto believe that all necessary testing was being carried out on Augustin.
(f) He failed to indicate to Geneviève that she should defer having any further children until such time as an explanation for Augustin’s developmental delay had been determined or, alternatively, until such time as a genetic explanation of his global developmental delay had been ruled out to the extent that genetic testing was able to do so at that time.
(g) He failed to report the outcome of his assessment in a timely manner toGeneviève’s family physician, Dr. Lisa White.
(h) He failed to advise Geneviève that in the event she became pregnant she should alert her obstetrician to his diagnosis of Global Developmental Delay in order that the obstetrician could promptly arrange for appropriate testing at a time during the pregnancy when the pregnancy could still be terminated.
17The proposed amendments would add two further paragraphs to the statement of claim. According to the plaintiffs, they are intended to provide greater particularity of the allegations of negligence against Dr. Ponesse.
18Dr. Ponesse, on the other hand, argues that the amendments constitute an attempt to plead a new cause of action, namely negligent misrepresentation, after the expiry of the two-year limitation period in s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
19The text of the proposed amendments is as follows:
The Plaintiffs state that the Defendant, Dr. Jonathan Ponesse, was, at all material times, aware that Genevieve wanted genetic testing to be done to determine whether or not there was genetic explanation for Augustin’s delays and/or his other medical issues. As a direct consequence of Genevieve’s request for genetic testing, Dr. Ponesse requisitioned a genetic test that did not disclose to Genevieve that he was not requesting a second genetic test that he knew or ought to have known was required to rule our [sic] Fragile X Syndrome in a child with developmental delays.
Dr. Ponesse either negligently failed to order genetic testing for Fragile X Syndrome, or he negligently led Genevieve to believe that all genetic testing recommended for a child with developmental delays was being done, when only one test was being done, and this test, unknown to Genevieve, was being done to relieve Genevieve’s anxiety rather than to rule out a genetic cause for Augustin’s developmental delays and/or his other medical issues.
20In support of his contention that the proposed amended pleading is, in reality, an attempt to introduce a claim of negligent misrepresentation, Dr. Ponesse points to an earlier draft of the amended statement of claim that had been circulated by the plaintiffs’ lawyers in which, after alleging that Dr. Ponesse had represented to Ms. Bonenfant that he was requisitioning all necessary blood testing on Augustin to assist in diagnosing the probable cause of Augustin’s global developmental delay and/or anomalies in his development, the following sentences appeared:
The Plaintiffs plead that this representation by Dr. Jonathan Ponesse was, to his knowledge [sic] of Dr. Jonathan Ponesse, untrue. This misrepresentation was negligently made by Dr. Ponesse in circumstances where he knew or ought to have known that Geneviève would rely on his misrepresentation. In reliance on Dr. Ponesse’s misrepresentation, Geneviève took no further initiative to pursue bloodwork or other genetic testing, as she had been led to believe by Dr. Ponesse that this had been done.
21Setting to one side the argument advanced by Dr. Ponesse that he did not owe the plaintiffs a duty of care in the circumstances, it is well established that an amendment will be impermissibly statute barred if it seeks to assert a “new cause of action” after the expiry of the applicable limitation period: Klassen v. Beausoleil, 2019 ONCA 407, 34 C.P.C. (8th) 180, at para. 27 (I pause to observe that many courts, including the Court of Appeal in Klassen, continue to refer to a “cause of action” rather than a “claim”, which is the terminology used in the Limitations Act. However, the distinction makes no difference in the circumstances of this case).
22In French v. H&R Property Management Ltd., 2019 ONCA 302, the same panel that heard the Klassen case explained, at para. 26:
However, there is a distinction between pleading a new cause of action and pleading new or alternative relief based on the same facts as originally pleaded. An amendment is not the assertion of a new cause of action where the “original pleading…contains all the facts necessary to support the amendments…[such that] the amendments simply claim additional forms of relief, or clarify the relief sought, based on the same facts are originally pleaded”. [References omitted.]
23The plaintiffs, in their factum and their submissions, steadfastly maintained that their proposed amendment is not intended to plead a new cause of action.
24Courts must always be vigilant in determining what allegations have been properly pleaded by a plaintiff. As Iacobucci J. observed in Non-Marine Underwriters, Lloyd’s of London v. Scalera, 2000 SCC 24, [2000] 1 S.C.R. 551, at paras. 81-82, the plaintiff’s choice of labels will not necessarily be determinative (in Scalera, the use of the word “negligence” did not prevent the court from concluding that the allegations in fact sounded in intentional tort).
25In the context of proposed amendments to a statement of claim, the decision of Nordheimer J. in Farmers Oil and Gas Inc. v. Ontario (Natural Resources), 2016 ONSC 6359, 134 O.R. (3d) 390 (Div. Ct.) is instructive. There, as in the present case, the debate was between whether proposed amendments gave greater clarity or particularity to an existing claim, or whether they advanced new claims. At para. 14, he referred to the plaintiff’s reliance on a decision of Lauwers J. in 1309489 Ontario Inc. v. BMO Bank of Montreal, 2011 ONSC 5505, 107 O.R. (3d) 384, in respect of which Nordheimer J. summarised the argument as follows:
On the one hand, one can see a cause of action as a factual matrix. On the other hand, one can see a cause of action simply as the legal basis upon which the claim for relief is based. Lauwers J. concluded that the trend of the case law was to favour the broader factually oriented approach to the meaning of a cause of action. Under that broader approach, if the defendant has notice of the factual matrix underlying the claim being advanced, then amendments that arise out of, or do not depart from, that factual matrix do not constitute “new” causes of action that would not be allowed by way of amendment. On that point, Lauwers J. said, at para. 27:
A plaintiff is not required to name or specify the technical cause of action as an essential part of pleading; in saying this, I do not resile from the requirement noted in Morden and Perell, supra, that ordinarily the facts as originally pleaded, or as better particularized in the proposed new pleading, must be able to sustain the technical cause of action. [Emphasis added.]
Nordheimer J. ultimately found that the case before him fell within the type of situation envisaged by Lauwers J. in the BMO decision.
26In examining the amendments proposed by the plaintiffs, it is clear, from a generous reading of the original statement of claim, that the plaintiffs allege that Dr. Ponesse:
a. failed to undertake genetic testing of Augustin, while leading Ms. Bonenfant to think all necessary testing was being carried out; and
b. failed to indicate to her that she should defer having any further children until such time as an explanation for Augustin’s global developmental delay had been determined, or until such time as a genetic explanation of his global developmental delay had been ruled out.
To adopt the language of Nordheimer J. in Farmers Oil, at para. 24, when one then looks at the proposed amendments, the plaintiffs allege facts that clearly arise out of the same factual matrix that has already been pleaded.
27I would make two further observations. Dr. Ponesse points out, as held in Lysko v. Braley (2006), 2006 11846 (ON CA), 79 O.R. (3d) 721 (C.A.), at para. 30, that a correctly pleaded claim of the tort of misrepresentation must set out, with a careful particularity, the elements of the misrepresentation relied upon, namely:
The alleged misrepresentation itself;
When, where, how, by whom, and to whom it was made;
Its falsity;
The inducement;
The intention that the plaintiff should rely upon it;
The alteration by the plaintiff of his or her position relying on the misrepresentation; and
The resulting loss or damage to the plaintiff.
28Dr. Ponesse argues that even when read generously, the plaintiffs have failed to plead details of the alleged misrepresentation itself, that a duty of care was owed by Dr. Ponesse to either of the plaintiffs, the basis for any special relationship between the plaintiffs and Dr. Ponesse, and any material facts that would suggest that the plaintiffs’ alleged reliance in the circumstances could have been reasonable.
29By arguing that the proposed amended pleading is deficient if its purpose is to advance a claim of negligent misrepresentation, Dr. Ponesse is, unwittingly perhaps, supporting the plaintiffs’ insistence that their amendments are not some sort of Trojan horse within which a negligent misrepresentation claim is concealed, waiting to be released at trial.
30The second observation is that there may be situations in which the facts originally pleaded in a statement of claim in support of an action framed in negligence are also sufficient to ground an action in negligent misrepresentation (see, for example, Crossan v. Mortgage & Appraisals Ltd. (1998), 1998 18790 (NL SC), 162 Nfld. & P.E.I.R. 307).
31Ultimately, in circumstances where it is not plain and obvious that the proposed amendment would allow statute-barred claims to proceed, the appropriate course of action would be to allow the amendments, without prejudice to the defendant raising the limitations defence in his statement of defence if he deems it appropriate to do so: Ivany v. Financiere Telco Inc., 2011 ONSC 2785, at para. 43.
32That seems to me to be the correct response to the plaintiffs’ motion. Accordingly, leave to make the proposed amendments to the statement of claim will be granted. If the defendant wishes to maintain his position that these amendments can be interpreted as advancing a statute-barred claim of negligent misrepresentation, he is at liberty to plead that in his statement of defence.
Motion to Strike
Motion to Strike
33Dr. Ponesse moves to strike the statement of claim, as against him, pursuant to Rule 21.01(1)(b) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, on the ground that it discloses no reasonable cause of action.
34In assessing whether a pleading fails to disclose a cause of action, the court must determine whether, assuming the facts as alleged are proven, it is “plain and obvious” that the impugned pleading or action cannot succeed and should not proceed to trial: Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, at p. 979.
35The plaintiffs tacitly recognise that their claims do not fall within a class of duty previously recognised in law. However, they argue that a duty of care on the part of Dr. Ponesse, while novel, should be recognised nevertheless.
36Courts play an important role “to develop the common law in a manner consistent with the changing needs of society”: Jones v. Tsige, 2012 ONCA 32, 108 O.R. (3d) 241, per Sharpe J.A. at para 65. As the Court of Appeal succinctly stated in Johnson v. Adamson (1981), 1981 1667 (ON CA), 34 O.R. (2d) 236:
The action is undoubtedly novel but that has never been a reason for saying that an action has no foundation in law.
37At pages 990-991 in Hunt, Wilson J. wrote:
The fact that a pleading reveals "an arguable, difficult or important point of law" cannot justify striking out part of the statement of claim. Indeed, I would go so far as to suggest that where a statement of claim reveals a difficult and important point of law, it may well be critical that the action be allowed to proceed. Only in this way can we be sure that the common law in general, and the law of torts in particular, will continue to evolve to meet the legal challenges that arise in our modern industrial society.
38However, judges must proceed with caution. In Watkins v. Olafson, 1989 36 (SCC), [1989] 2 S.C.R. 750, at p. 761, the court warned:
Where the matter is one of a small extension of existing rules to meet the exigencies of a new case and the consequences of the change are readily assessable, judges can and should vary existing principles. But where the revision is major and its ramifications complex, the courts must proceed with great caution.
39To similar effect, former Justice Sharpe has written, extra-judicially in Good Judgment: Making Judicial Decisions (Toronto: University of Toronto Press, 2018), at 93:
Common law judges constantly refer to incremental or interstitial change and characterize the development of the common law as a gradual process of evolution. Former Senior Law Lord Tom Bingham put it this way: it is very much in the common law tradition “to move the law a little further along a line on which it is already moving, or to adapt it to accord with modern views and practices.” If the proposed change fits that description, there is a strong tradition to support judicial law‑making. It is quite another thing, however, “to seek to recast the law in a radically innovative or adventurous way,” as that makes the law “uncertain and unpredictable” and is unfair to the losing party who relied on the law as it existed before the change. Developments of the latter magnitude may best be left to the legislature.
40Dr. Ponesse asserts that he owed no duty of care to the plaintiffs, who were not his patients. Their interactions with Dr. Ponesse were only in their capacity as Augustin’s parents. As such, Dr. Ponesse says that he did not owe them an independent duty of care to avoid the kind of loss alleged, namely “economic loss in relation to the plaintiffs’ own family planning and health care choices”.
41The circumstances in which Canadian courts have recognised that physicians may owe duties of care to non-patients are limited. As observed by John A. Campion and Diana W. Dimmer in Professional Liability in Canada, loose-leaf, (Toronto: Thomson Reuters, 2021) at para. 9.29, it is “difficult to bring a successful action for medical negligence in the absence of a doctor-patient relationship”.
42Many of the pronouncements about development of common law arise from trial decisions and the appellate review of those decisions.
43At the pleadings stage, however, the court acts as a gatekeeper to prevent claims that have no hope of being legally tenable from proceeding. In J.B. v. Ontario (Child and Youth Services), 2020 ONCA 198, 445 D.L.R. (4th) 642, Benotto J.A. summarised the test for striking out a claim in these terms, at para. 25:
At the heart of r. 21 are the mutual aims of judicial economy and correctness. The power to strike claims that have no chance of success is an important tool that reduces the time and cost of litigation and frees up the court’s time to resolve meritorious disputes. However, the court does not exercise this power lightly. Judges are ever-mindful that the law is fluid, evolving over time so that “actions that yesterday were deemed hopeless may tomorrow succeed”: R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 21.
44To determine whether a claimant should be permitted to plead a novel duty of care, the analytical framework set out in Anns v. Merton London Borough Council [1978] A.C. 728, [1977] 2 W.L.R. 1024, [1977] 2 All E.R. 492 (H.L.) has been adopted by Canadian courts, which requires the court to be satisfied that:
There is sufficient proximity between the parties that it would not be unjust or unfair to impose a duty of care on the defendant;
The harm complained of is a reasonably foreseeable consequence of the alleged breach; and
There exist no policy reasons to negative or otherwise restrict that duty.
45While it may be difficult to establish the existence of a duty of care on the part of a physician outside of a physician/patient relationship, it is not impossible. The plaintiffs referred to a number of cases and legal developments that, they argue, are analogous to their own claims.
46In Crawford v. Penney 2003, 14 C.C.L.T. (3d) 60, this court recognised, at para. 255, that a duty of care can arise in circumstances beyond the strict physician/patient relationship. One of the questions in that case was whether an obstetrician who was said to have been informally consulted by a family physician could owe a duty of care to the family physician’s patient. Although on the evidence, the court found that the consultation had not occurred, Power J. rejected the argument that a class of consultation known as a “hallway conversation” or a “corridor consult” could give rise to a duty of care in favour of the patient for whom the advice or opinion was sought. At para. 256, he adopted the following comments from Ellen Picard and Gerald Robertson, Legal Liability of Doctors in Hospitals in Canada, 2nd ed. (Scarborough: Carswell, 1996):
If it is reasonably foreseeable that negligence by the doctor may cause harm to a third party (whether identifiable or not), and if there is sufficient proximity between the doctor and the third party, a duty of care will arise (unless there are reasons of policy which dictate otherwise), and breach of that duty will result in the doctor being liable to the third party.
47Both parties to this motion referred to cases in which courts have recognised claims for “wrongful birth”. Feldman J.A. described such claims in Paxton v. Ramji, 2008 ONCA 697, 92 O.R. (3d) 401, at para. 27:
Actions for wrongful birth are brought by the parents (rather than by the child) who claim that their child would not have been conceived or born but for the doctor's negligence. In such claims, the parents seek damages associated with the birth and care of a child. Wrongful birth claims may arise from the birth of a healthy, but unplanned, child as in cases where a doctor is alleged to have negligently performed a sterilization procedure. More commonly, wrongful birth claims involve the birth of a disabled child, as in cases where parents would have elected not to conceive a child had they received accurate genetic counselling about the likelihood that their child would be born with a disability, or to abort a child had they received advice regarding harm that can be caused in utero by such diseases as Rubella.
48Feldman J.A. was clearly alert to the evolving nature of the existence of a duty of care. At para. 58 in Paxton she wrote:
A third potentially analogous category is the duty of care that a doctor may owe to a non-patient third party for harm arising out of the doctor’s treatment of a patient: see, for example, Ahmed v. Stefaniu (2006), 2006 34973 (ON CA), 275 D.L.R. (4th) 101 (Ont. C.A.); Spillane (Litigation Guardian of) v. Wasserman (1992), 13 C.C.L.T. (2d) 267 (Ont. Ct. (Gen. Div.)); Urbanksi v. Patel (1978), 1978 2181 (MB QB), 84 D.L.R. (3d) 650 (Man. Q.B.). In these cases, however, the nature of the doctor’s duty of care to the third party and the legal basis for imposing a duty of care are not fully developed. [Footnote reference omitted] For that reason, I would not view these cases as establishing the basis for an analogous category between a doctor and a future child, if viewed as a third party non-patient. [My emphasis added.]
49It is important to underscore that the Paxton case went to trial. At issue was whether a duty of care was owed to a child before conception by a doctor who prescribed the teratogenic drug Accutane to the child’s mother. The trial judge had found that the respondent owed a duty of care to the appellant before conception not to prescribe Accutane to her mother without taking all reasonable steps to ensure that the mother would not become pregnant while taking the drug. The Court of Appeal, in a decision which underscored the need to proceed with great caution before recognising a novel duty of care, overturned the trial judge’s finding, concluding that although it was reasonably foreseeable that a doctor can cause harm to a future child by prescribing teratogenic medication to a woman who is or may become pregnant, the doctor and the future child were not in a "close and direct relationship" of sufficient proximity to render it fair and just that the doctor should owe a duty of care to the future child.
50Dr. Ponesse argues that all of the cases where a claim of wrongful birth has succeeded, the claim is always made against the plaintiff’s own physician for advice and care provided to the mother in her capacity as a patient, rather than as a third party to the doctor/patient relationship.
51To underscore that argument, as recently as July of this year, the Court of Appeal reiterated that a mother’s physician owed no duty of care to her triplets, born with serious disabilities, to not prescribe to their mother a contraindicated and potentially dangerous medication (Serophene) that the physician allegedly knew, or ought to have known, could cause harm not only to the mother but also to them: Florence v. Benzaquen, 2021 ONCA 523, 462 D.L.R. (4th) 251.
52In Freeman v. Sutter (1996), 1996 17967 (MB CA), 110 Man. R. (2d) 23(C.A.), the plaintiff impregnated a woman who subsequently went to a physician to request an abortion. The plaintiff alleged that the woman underwent the procedure but that the foetus was not aborted. A second physician failed to diagnose the continuing pregnancy. The plaintiff sought damages for “emotional pain and suffering”, and loss of consortium, as well as damages to indemnify him for any maintenance that he might be required to pay for the child.
53The Manitoba Court of Appeal found that there was not a relationship of sufficient proximity to give rise to a duty of care owed by the physicians to the plaintiff. In the course of their conclusion, the Court of Appeal noted that there was no assertion in the statement of claim that the plaintiff was a patient of the defendant doctors, or that he consulted or received advice from them. Furthermore, it was not alleged that he had any discussion with the mother as to her intended treatment, or that he was privy to her instructions to her physicians.
54In Yarmie v. Winogrodzki, 2015 MBQB 152, 321 Man. R. (2d) 42, the parents of an adult daughter who had passed away sued their daughter’s doctor for negligently continuing to prescribe the medication Seroquel despite their daughter’s “dangerously low white blood cell counts” and then, when the medication was withdrawn, doing so in an abrupt and dangerous fashion which had negative effects on her. Master Berthaudin, relying on the principle set out in Freeman v. Sutter, struck out the claim as disclosing no reasonable cause of action because the parents were not the patient of the defendant physician receiving his treatment and advice.
55In Freeman, the Court of Appeal had rejected the submission that the potential economic impact upon the putative father could have been foreseen by the defendant physicians, reasoning that “there must be some pragmatic limitations on those who may sue an alleged tortfeasor, even though the claimants themselves have suffered no direct injury”. The Court of Appeal also noted that the facts of the case under consideration disclosed no allegation that the plaintiff had had any discussion with the mother as to her intended treatment, or that he was privy to her instructions to her physicians.
56The Court of Appeal in Florence made clear that the relationship between the physician and the third party must be “close and direct” (at para. 71), concluding that there was a lack of close and direct relationship between a doctor and an unborn child, in part because the physician cannot take instructions from nor advise an unconceived child.
57The plaintiffs referred to a number of American cases which support the existence of a duty of care in similar circumstances. These cases have to be viewed with some caution because of the lack of Anns-type consideration of policy reasons to negative or otherwise restrict the existence of a duty of care. In one case, Molloy v. Meier, 679 N.W.2d 711 (Minn. 2004), a decision of the Supreme Court of Minnesota, the facts were strikingly similar to the present case. The parents of a child with developmental delays asked for genetic testing of the child and made inquiries about the chances of conceiving another child with a similar defect. There had been genetic testing of the child, but this had not included Fragile X testing. The second child was then born who exhibited similar developmental difficulties. Both children were ultimately found to be carriers of the Fragile X disorder. The defendant physicians unsuccessfully moved for summary judgment, arguing that they did not owe a duty of care to the family of a patient. The court wrote, at 719:
[G]enetic testing and diagnosis does not affect only the patient. Both the patient and her family can benefit from accurate testing and diagnosis. And conversely, both the patient and her family can be harmed by negligent testing and diagnosis.
We therefore hold that a physician's duty regarding genetic testing and diagnosis extends beyond the patient to biological parents who foreseeably may be harmed by a breach of that duty. In this case, the patient suffered from a serious disorder that had a high probability of being genetically transmitted and for which a reliable and accepted test was widely available. The appellants should have foreseen that parents of childbearing years might conceive another child in the absence of knowledge of the genetic disorder. The appellants owed a duty of care regarding genetic testing and diagnosis, and the resulting medical advice, not only to [their patient] but also to her parents.
58I am satisfied that the facts as pleaded establish a prima facie duty of care owed by Dr. Ponesse to the plaintiffs.
59While the plaintiffs were not patients of Dr. Ponesse, they were the agents, advocates and decision-makers for their son. Dr. Ponesse could, and did, take instructions from and advise Ms. Bonenfant. Such circumstances might well be sufficiently “close and direct” for the requirement of proximity to be satisfied.
60Moreover, the plaintiffs allege that Dr. Ponesse was asked that all available bloodwork be done to rule out any conditions that might be responsible for Augustin’s developmental delay. It is further alleged that while Dr. Ponesse requisitioned a genetic test, he failed to disclose to Ms. Bonenfant that he was not requesting a second genetic test that he knew or ought to have known was required to rule out Fragile X Syndrome. Indeed, in the amended statement of claim, the plaintiffs plead that Dr. Ponesse unbeknownst to Ms. Bonenfant did the first genetic test to relieve her anxiety [my emphasis added] rather than to rule out a genetic cause for Augustin’s developmental delays.
61Dr. Ponesse could have reasonably foreseen that a woman of childbearing age with a young child with developmental delay issues and expressed concerns about a possible genetic cause of that developmental delay would also be concerned about the impact of any genetic explanation on a decision to have additional children. Under such circumstances, there is sufficient proximity between the parties that it would not be unjust or unfair to impose a duty of care on Dr. Ponesse.
62The plaintiffs allege that as a result of Dr. Ponesse’s breach of his duty of care towards them they will now have lifelong extraordinary care costs as they attend to Etienne’s needs over the course of his life expectancy. They also allege a loss of income and a loss of economic opportunity as a consequence of the extraordinary demands placed upon them by reason of Etienne’s condition. In addition to non-pecuniary general damages, they claim $15 million on account of extraordinary care costs that they have incurred and will incur in the future, and $2.3 million and $2.2 million respectively on account of past and future loss of income.
63If Dr. Ponesse is found to have breached the duty of care he owed to the plaintiffs by failing to order genetic testing for Fragile X Syndrome, by leading the plaintiffs to believe that all genetic testing recommended for a child with developmental delays was being done, or by failing to inform the plaintiffs that he was not requesting a second genetic test required to rule out Fragile X Syndrome, the nature of the harm alleged by the plaintiffs would be a reasonably foreseeable consequence.
64Having found that there exists sufficient proximity between the plaintiffs and Dr. Ponesse and that the plaintiffs would suffer harm as a consequence of his failure to conduct appropriate genetic testing, consideration must then be given to whether there are policy considerations that mitigate against a finding that a duty of care was owed to the plaintiffs.
65Dr. Ponesse argues that even if the relationship between Dr. Ponesse and the plaintiffs was sufficiently proximate, the proposed duty of care would give rise to inherent conflicts and, thus, should not be recognised. He argues that physicians do not owe independent duties of care to the substitute decision makers acting on behalf of their patients. To do otherwise would create a conflict of duty.
66In Paxton, at para. 66, Feldman J.A. observed that if a doctor owes a duty of care to a future child of a female patient, the doctor could be put in an impossible conflict of interest between the best interests of the future child and the best interests of the patient in deciding whether to prescribe a teratogenic drug or to give the patient the opportunity to choose to take the drug.
67In Wawrzyniak v. Livingstone, 2019 ONSC 4900, the plaintiff asserted a claim for damages for nervous shock resulting from the failure of two physicians to resuscitate her father. The doctors had co-signed a “do not resuscitate” order and placed it on the father’s chart (having unsuccessfully attempted to contact the plaintiff, who was her father’s substitute decision maker). Cavanagh J. concluded that the plaintiff had failed to establish that the defendants owed her a prima facie duty of care to be mindful of her interests as her father’s daughter who was closely involved with his care or as his substitute decision maker. In so concluding, Cavanagh J. relied on the Supreme Court’s decision in Syl Apps Secure Treatment Centre v. B.D., 2007 SCC 38, [2007] 3 S.C.R. 83, and in particular, the comments of Abella J. concerning the policy implications of holding that agencies providing care to a child who is sent to a treatment centre owed a corresponding duty of care to the family of the child in care, quoting from para. 50 of Abella J.’s decision:
If a corresponding duty is also imposed with respect to the parents, service providers will be torn between the child’s interests on the one hand, and parental expectations which may be unrealistic, unreasonable or unrealizable on the other. This tension creates the potential for a chilling effect on social workers, who may hesitate to act in pursuit of the child’s best interests for fear that their approach could attract criticism — and litigation — from the family. They should not have to weigh what is best for the child on the scale with what would make the family happiest, finding themselves choosing between aggressive protection of the child and a lawsuit from the family.
68To similar effect, in J.B. v. Ontario (Child and Youth Services), the Court of Appeal upheld the decision of a motions court judge striking out claims by the families of children who were the subject of protection proceedings for damages as a result of flawed hair follicle testing for drug and alcohol abuse, because it was plain and obvious that they could not succeed. The Court of Appeal made extensive reference to the principle established in Syl Apps that where entities exist to protect and provide for children’s best interests, to avoid conflicting duties, they must only owe a duty of care to the children they serve.
69I do not read these cases as suggesting that a child’s doctor can never owe a duty of care to the child’s parents. While I agree with Dr. Ponesse that there should be a heightened sensitivity to a potential conflict of duties in circumstances in which parents or other persons act as substitute decision makers, I see no potential for conflict in the circumstances alleged. There would have been nothing to lose and everything to gain by accurately diagnosing the cause of Augustin’s developmental delay. The real world circumstances of Augustin’s parents is that, if made aware that Augustin had a genetic disorder, that knowledge would inform other choices made by the parents.
70Having concluded that a prima facie duty of care did exist between Dr. Ponesse and the parents of his patient and that the alleged consequences of a breach of that duty were foreseeable, I must consider whether there are external policy considerations that would negate that duty.
71Dr. Ponesse argues that such a duty would give rise to indeterminate liability.
72In support of that concern, Dr. Ponesse referred to Watters v. White, 2012 QCCA 257, leave to appeal refused, 439 N.R. 394 (note) (SCC), a case involving the existence of a duty to warn those within a “radius of contact” of a child’s genetic disorder. A mother had given birth to a child with a neurological disease which was caused by a gene inherited through her. The child’s doctor informed the child’s parents of the risk that they could pass the disease on to other children of theirs, but he informed nobody else of that risk. 30 years later, a second cousin of the patient gave birth to a child with a similar neurological disease. The second child’s parents brought a negligence claim against the first child’s doctor, alleging that he had been negligent in failing to inform them of his earlier diagnosis of his patient, and seeking damages for the costs of caring for their child.
73At para. 86, Kasirer J.A. discussed the detrimental social impact of the recognition of the trial judge’s finding that the physician had owed the plaintiffs a duty of care:
[T]he practical effect of the judge’s radius of contact test would appear to decree much of professional practice in Quebec of the period to be civilly wrong. The judge’s standard would render the work of a physician extremely onerous: pushed to its logical limit, a doctor in like circumstances might be obliged to seek out and inform all third persons within a radius of contact, beyond his or her patient, whether or not he or she had met them or knew their names and irrespective of foreseeability of risk on a professional measure, where a reasonable non-physician thought that right. The social costs of such a duty could prove to be prohibitive. It could serve as a disincentive to undertake medical work in fields where genetic risks are present. Moreover, the duty to warn as announced by the judge could transform the doctor-patient relationship as it is currently understood.
74Although the Anns approach does not have an exact equivalent under the civil law of Québec, Dr. Ponesse argues that the nature of genetic information is such that the interest in it extends far beyond a patient’s parents. To impose on Dr. Ponesse the duty asserted by the parents would place an unduly onerous burden to warn relatives and extended family members of the risks posed by any suspected or diagnosed genetic disorder.
75I do not agree.
76The duty of care asserted by the plaintiffs in the present case is far more circumscribed than that put forward by the plaintiffs in Watters. There is no assertion of a “radius of contact” or any such generalised duty. The claim in Watters, if decided in accordance with common law principles, would likely have fallen at the hurdle of proximity, long before policy considerations came into play. Furthermore, the doctor in Watters had, in fact, expressly warned the father of the first child’s genetic disease. In short, the circumstances in Watters are very different.
77I have concluded that the plaintiffs’ claim, while novel, is nevertheless tenable. It would not represent an excessive expansion of existing duties of care owed by physicians to non-patients. I reiterate that I am not finding that Dr. Ponesse did owe a duty of care to the plaintiffs, only that the allegations as pleaded could, if proven, support the existence, and breach, of such a duty. The plaintiffs’ claims may or may not succeed on a full evidentiary record. However, for the foregoing reasons, it is not plain and obvious that their action against Dr. Ponesse has no prospect of success.
78The motion to strike should, accordingly, be dismissed.
Costs
Costs
79The plaintiffs have been successful on both motions. I am presumptively of the view that, subject to any submissions that either party may wish to make to the contrary, the plaintiffs should have their costs on a partial indemnity scale. If, within ten working days of the release of these reasons, the parties are unable to agree on costs, they are to advise my judicial assistant, Aimee McCurdy, at Aimee.McCurdy@ontario.ca and I will then set a timetable for the delivery of submissions.
Graeme Mew J.
Released: 31 December 2021
Corrected: 22 February 2022
Paragraph 19 amended as per endorsement at 2022 ONSC 1187
COURT FILE NO.: CV-18-77690 (Ottawa)
DATE : 20211231
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
GENEVIÈVE BONENFANT and JEAN-FRANÇOIS LOZIER
Plaintiffs
– and –
DR. JONATHAN PONESSE, DR. ANNE GRAVELLE, DR. LISA WHITE and DR. KAREN PALAYEW
Defendants
REASONS FOR decision
Mew J.
Released: 31December 2021
Corrected: 22 February 2022