COURT FILE NO.: CV-11-52738-CP

DATE: 2022/07/12

SUPERIOR COURT OF JUSTICE – ONTARIO

Proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6

RE: Fern McGee, Plaintiff

AND:

Dr. Christiane Farazli and C. Farazli Medicine Professional Corporation, Defendants

BEFORE: Regional Senior Justice Calum MacLeod

COUNSEL: Evatt Merchant Q.C and Anthony Tibbs, for the plaintiff

Josh Hanet and Rachel McMillan, for the defendants

HEARD: April 13 & 14, 2022

DECISION AND REASONS

[1] This is a rehearing of a class proceedings certification motion pursuant to s. 123 (4) (b) of the Courts of Justice Act.[^1] The matter was originally heard by my former colleague, Justice Michel Charbonneau, in November of 2019. At that time the certification motion was dismissed on a single evidentiary point without considering all of the criteria for certification under the Act. Justice Charbonneau was not persuaded that the plaintiff had adduced sufficient evidence to demonstrate there were other members of the class interested in pursuing the matter. [^2]

[2] Following an appeal to the Divisional Court, the matter was remitted back to the motion judge for further consideration.[^3] Due to his retirement, however, Justice Charbonneau is unable to preside, and another judge must be assigned to hear the motion. Pursuant to directions given at a case conference on December 14, 2021, the motion came on for a hearing in a virtual courtroom on April 14, 2022.

[3] As set out below, I have determined that certification should be granted, and an order will issue accordingly. Counsel should arrange a case conference to address issues such as notice and opting out, to determine what additional steps are required and to create a timetable leading up to the common issues trial.

Background

[4] The plaintiff is a former patient of an endoscopy clinic operated by the defendants in Ottawa between 2002 and 2011. Following an inspection by the College of Physicians and Surgeons of Ontario (CPSO) it was determined that infection control and prevention practices had not routinely been followed for endoscopic and biopsy equipment. The clinic was closed, and the matter referred to the Medical Officer of Health. Consequently, in October of 2011, Ottawa Public Health (OPH) began a notification program, advising former patients of possible risk of infection and advising the recipients of the notice to be tested for HIV, hepatitis B and hepatitis C.

[5] The plaintiff was among 6800 former patients who were affected by that notice. Apparently, 95 percent of the former patients received the letter and 75 percent of those patients chose to undergo a blood test. The plaintiff was one of them. Some individuals who were tested did test positive for one of the blood borne diseases, but after DNA analysis of the infections, OPH was unable to establish or confirm any transmission of infection within the clinic where the lapse occurred. Infections in the population of people who were tested may have been coincidental.

[6] The plaintiff did not test positive, and she does not assert that she was infected. Rather, she seeks compensation for exposure to enhanced risk of infection and for the shock, trauma and inconvenience inherent in responding to the public health notice. It is possible there may be members of the proposed class who did become infected and who believe the infection was acquired in the clinic, but that is not the focus of the litigation. The plaintiff alleges that all members of the proposed class suffered damage and are entitled to compensation whether or not the risk of infection materialized.

[7] The plaintiff seeks to bring this proceeding on behalf of herself and all patients that were subjected to the risk of infection due to the failure of the clinic to properly sterilize instruments and follow protocols.

[8] The proposed classes are as follows:

a. All persons who had a test performed by the Defendant[s] at their clinic in Ottawa to examine his or her gastrointestinal system, on any date between April 1, 2002, and June 1, 2011 (the “Primary Class”); and

b. All persons who, by virtue of their relationship to a member of the aforementioned classes, are entitled pursuant to the Family Law Act to assert a derivative claim (the “Family Class”)

[9] As common issues affecting all members of the primary class, the plaintiff proposes a number of questions. They may be paraphrased as follows. Firstly, whether the defendants owed patients at the clinic a duty of care to follow proper procedures and standards and whether that duty is founded in contract, tort or a fiduciary relationship? Secondly, whether the failure of the defendants to adhere to those protocols was a breach of the standard of care? Thirdly, whether the failure on the part of the defendants exposed the members of the class to increased risk of infection? Fourthly, whether the defendants are liable to members of the class for damages in respect of inconvenience, nervous shock, anguish, emotional distress, psychological distress or anxiety? Finally, whether this is a case that should attract aggravated, exemplary or punitive damages and whether the defendants should be jointly and severally liable?

[10] The defendants oppose certification. They concede that the pleadings disclose a cause of action, and the plaintiff is a suitable class representative. They also concede the Divisional Court ruling that the Primary Class meets the identifiable class criterion. The defendants argue that there are not truly common issues because the common issues proposed by the plaintiff are simply recitals of the component parts of a cause of action. In reality, it is argued, every class member would have to prove both damages and causation and there may be a myriad of personal circumstances that make a global determination of liability unreasonable. The defendants argue that the onus is on the plaintiff to present evidence for the court to assess the remaining criteria and she has not done so.

[11] It is to these issues that I turn my attention.

Analysis

[12] This action was launched in 2011 and as such the criteria for certification are those set out in the act as it read on September 30, 2020.[^4] Those criteria appear in s. 5 (1) and read as follows.

(a) the pleadings or the notice of application discloses a cause of action;

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

(c) the claims or defences 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 or defendant who,

(i) would fairly and adequately represent the interests of the class,

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

[13] While the amendments did not alter s. 5 (1), they did add s. 5 (1.1) which reads as follows:

(1.1) In the case of a motion under section 2, a class proceeding is the preferable procedure for the resolution of common issues under clause (1) (d) only if, at a minimum,

(a) it is superior to all reasonably available means of determining the entitlement of the class members to relief or addressing the impugned conduct of the defendant, including, as applicable, a quasi-judicial or administrative proceeding, the case management of individual claims in a civil proceeding, or any remedial scheme or program outside of a proceeding; and

(b) the questions of fact or law common to the class members predominate over any questions affecting only individual class members. 2020, c. 11, Sched. 4, s. 7 (2).

[14] There is some debate as to whether this amendment introduces a change in the law or simply reflects the jurisprudence that had already evolved under subsection 5 (1) (d). The defendant asserts the latter. It is unnecessary for me to determine that question with precision. This motion turns on the question of common issues and preferable procedure since the other criteria are readily established in this case.

[15] The defendants focus their arguments on subsections 5 (1) (c), 5 (1) (d) and 5 (1) (e) (ii). Dealing firstly with the common issues, I am not bound to accept the precise formulation of the issues proposed by the plaintiff. Rather, pursuant to s. 8 of the Act, it is the duty of the judge granting certification to define the common issues in the resulting order.

[16] The analysis of common issues and the jurisprudence surrounding the question is extensively described in a number of cases cited by the parties. I find the analysis by Perrell J. in Batten v. Boehringer[^5] to be particularly helpful. That case involved marketing of an anticoagulant medication for which there was no antidote. There was no antidote, but it was possible to control the effects of the medication by simply stopping its administration and the evidence also indicated that an antidote would rarely be used because of the concomitant risk of blood clots. There was no basis in fact to conclude that exposure to the risk of bleeding from marketing the anticoagulant without an antidote was a genuine common issue.

[17] That is unlike the present case. The risk of infection from the use of unsterilized instruments was a real risk even if it was low. Even if the instruments were actually sterilized on some occasions, the failure to follow a recognized protocol gave rise to the need for Ottawa Public Health to implement a notice, warning and testing program. The entire class was affected by the receipt of that notice and the need to take action.

[18] It is apparent that the question of the existence of a duty of care and the extent of the duty of care are questions common to all members of the class. Similarly, there is a common issue as to whether or not the failure to follow the protocols and procedures and to document them fell below the standard of care. Negative answers to those question would end the litigation for the entire class whereas a positive answer would be the basis of potential liability to the class.[^6] This is a genuine issue because the defendant alleges that during much of the period of time the clinic was operating, there was no clear standard for disinfecting and sterilizing equipment used in endoscopy clinics. The power of the College to inspect such clinics and to impose a standard was relatively new, having been granted by statute in 2010.

[19] While the defendants contrast this case to cases in which certification was granted because there was an infectious outbreak, the absence of an infectious outbreak cannot be determinative of this question. There is a basis, in fact, for the plaintiff’s allegations. It is undisputed that the clinic failed the inspection by the CPSO because it had not been following disinfection protocols. It is undisputed that on this basis OPH considered there to be sufficient risk of infection to notify all patients and provide them with access to testing. A substantial number of patients were sufficiently concerned to take advantage of the testing.

[20] A central question is whether or not the defendants can be liable for anxiety, inconvenience and the need to submit to blood tests without proof of physical injury or actual infection. Essentially that is a question of foreseeability. Should it have been plain and obvious to the defendants that failure to follow proper procedures would result in a response by public health officials and these types of negative impacts on the members of the class? There is some basis in fact for this argument. CPSO had a duty to report the failure to OPH and no one has suggested that the response of OPH was unexpected or unforeseeable. To the extent that there may be a Mustapha type of policy defence available, that is also a question in common to the resolution of this question and affects the entire class.[^7] Permitting this matter to proceed as a class proceeding will avoid duplicate findings of fact and legal analysis. The fact that there may also have to be individual trials for certain class members or sub-classes is not a bar to certification.[^8]

[21] The next question is whether a class proceeding is the preferable procedural manner of advancing this case. This is not simply a question of whether a class proceeding is preferable to numerous individual actions, but also whether there are other mechanisms which might be preferable. This might include regulatory action, access to a compensation fund, test cases or other possible avenues for compensation. In conducting this analysis, however, the court must read the Act generously to give full effect to its benefits. The Act was adopted to “ensure that the courts had a procedural tool sufficiently refined to allow them to deal efficiently, and on a principled rather than ad hoc basis, with the increasingly complicated cases of the modern era”.[^9]

[22] This is a case in which there was a mass wrong affecting thousands of individuals. Given the pleading and the focus on damages for exposure to increased risk, anxiety and the need to be tested as opposed to individual personal injury, damages for individual class members are likely to be modest. 6800 individuals with modest individual claims is almost an exemplar of the kind of case the Act was designed to capture. As described by the Supreme Court of Canada in Hollick, supra, the objectives of the Act are as follows. First, by aggregating similar individual actions, class actions serve judicial economy by avoiding unnecessary duplication in fact-finding and legal analysis. Second, by distributing fixed litigation costs amongst a large number of class members, class actions improve access to justice by making economical the prosecution of claims that any one class member would find too costly to prosecute on his or her own. Third, class actions serve efficiency and justice by ensuring that actual and potential wrongdoers modify their behaviour to take full account of the harm they are causing, or might cause, to the public.[^10]

[23] Finally, I do not accept the argument that the plaintiff’s litigation plan is so deficient that it is a bar to certification. There will be arguments about the use of experts certainly. It is a common argument that American experts are not qualified to speak to the standard of care in Ontario, but at this preliminary stage of the litigation, the plaintiff should not be locked into its list of proposed witnesses. The relevance of the litigation plan at the certification stage is to provide the court with a tool for assessing whether or not a class proceeding is a viable procedural tool. The litigation plan can be refined and revised in the context of the case management that is a feature of all class proceedings. The court has broad powers to devise and supervise procedure pursuant to s. 12 of the Act.

Conclusion

[24] In conclusion, I am satisfied that this is an appropriate case for certification as a class proceeding. I agree with the plaintiff that a class proceeding will provide a fair, efficient and manageable method to answer the common questions and is preferable to any of the hypothetical alternatives.

[25] The defendant does not argue that the proposed class definitions are inappropriate. There will therefore be a Primary Class and a Family Class as proposed.

[26] I am of the view that the proposed common issues may be simplified as follows:

a. Did the defendants owe a duty of care to the members of the Primary Class and the Family Class?

b. What was the nature of the duty of care? Was there a fiduciary relationship leading to an enhanced duty of care or was the duty of care limited or expanded by contract?

c. Did the defendants fall below the standard of care of physicians carrying out the procedures in question or operating an endoscopy clinic?

d. Did the members of the classes suffer compensable injury or harm as the result of lack of care on the part of the defendants and was the harm that was suffered reasonably foreseeable? Specifically, is there liability on the defendants for exposure to increased risk, anxiety, stress and inconvenience and the need to undergo blood testing whether or not any members of the class were actually infected?

e. Is this a case in which punitive damages would be appropriate?

[27] I would be open to a different wording of the common issues if counsel can agree. In that event, it may be addressed when the formal order is taken out. It will also be necessary to formalize the procedures for notice to the class and for opting out. I invite counsel to confer and seek agreement on those matters as well.

[28] As indicated in the introduction to these reasons, the next step should be a case conference to finalize the form of the order and to give direction concerning procedural steps and the timing of the common issues trial.

Costs

[29] I indicated I would deal with costs after rendering my decision. I encourage counsel to reach agreement on this point but will otherwise entertain submissions within the next 30 days.

Justice C. MacLeod

Date: July 12, 2022

COURT FILE NO.: CV-11-52738-CP

DATE: 2022/07/12

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Fern McGee, Plaintiff

AND:

Dr. Christiane Farazli and C. Farazli Medicine Professional Corporation, Defendants

BEFORE: Regional Senior Justice Calum MacLeod

COUNSEL: Evatt Merchant Q.C and Anthony Tibbs, for the plaintiff

Josh Hanet and Rachel McMillan, for the defendants

DECISION AND REASONS

Regional Senior Justice C. MacLeod

Released: July 12, 2022

[^1]: RSO 1990, c C.43 as amended [^2]: See McGee v. Farazli, 2019 ONSC 6917 [^3]: See McGee v. Farazli, 2020 ONSC 7066 [^4]: See s. 39 (1) of the Class Proceedings Act as amended by SO 2020, c. 11, Sched 4 [^5]: Batten v Boehringer Ingelheim (Canada) Ltd., 2017 ONSC 53 [^6]: Pro‑Sys Consultants Ltd. v. Microsoft Corporation, 2013 SCC 57, [2013] 3 SCR 477 [^7]: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27; [2008] 2 S.C.R. 114, 293 D.L.R. (4th) 29 [^8]: See s. 6 of the Act and Doucet v. The Royal Winnipeg Ballet, 2018 ONSC 4008 [^9]: Hollick v. Toronto (City), 2001 SCC 68, [2001] 3 SCR 158 [^10]: Supra, at para. 15