Nardi v. Sorin Group Deutschland GMBH, 2022 ONSC 4126

Superior Court of Justice

COURT FILE NO.: CV-17-00579153-00CP

DATE: 20220713

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BRUNO NARDI

Plaintiff

• and –

SORIN GROUP DEUTSCHLAND GMBH and LIVANOVA CANADA CORP.

Defendants

Counsel:

Sean A. Brown for the Plaintiff

Proceeding under the Class Proceedings Act, 1992

HEARD: In writing

REASONS FOR DECISION

PERELL, J.

1Pursuant to the Class Proceedings Act, 1992,¹ this is a certified class action brought by Bruno Nardi against Sorin Group Deutschland GMBH and Livanova Canada Corp.² The action is brought on behalf of what is described as the “Patient Class.” The Patient Class is comprised of persons in Canada who underwent open chest cardiac surgery during which the Sorin 3T Heater-Cooler System was used. The fundamental allegation against the Defendants is that the Sorin 3T Heater-Cooler System was contaminated with M. chimaera bacteria causing personal injuries to the Class Members.

2On this unopposed motion, Mr. Nardi seeks an order that 10 Ontario hospitals, 10 Québec hospitals, and one hospital from Newfoundland and Labrador produce their mailing lists of the patients they contacted alerting them to the possible contamination of the Sorin 3T Heater-Cooler System during their surgeries. More precisely, Mr. Nardi seeks the mailing lists from:

Ontario Hospitals

1. Hamilton Health Sciences
2. Health Sciences North
3. Kingston Health Sciences Centre
4. The University of Ottawa Heart Institute
5. Southlake Regional Health Centre
6. Sunnybrook Health Sciences Centre
7. The Hospital for Sick Children
8. University Health Network
9. Trillium Health Partners
10. London Health Sciences Centre – University Hospital

Québec Hospitals

11. Centre universitaire de santé McGill - site Glen
12. CHU Sainte-Justine
13. CHUL - Centre Mère-Enfant Soleil
14. CHUM - Hôtel-Dieu de Montréal
15. CIUSSS du Saguenay-Lac-Saint-Jean
16. Hôpital général de Montréal (CUSM)
17. Hôpital de Montréal pour enfants (CUSM)
18. Hôpital général juif Sir Mortimer B. Davis
19. Institut de cardiologie de Montréal
20. Institut universitaire de cardiologie et de pneumologie de Québec

Newfoundland Hospital

21. General Hospital Health Sciences Centre

3More precisely, Mr. Nardi seeks the following relief:

1. An Order that subject to the conditions and limitations set out in paragraph 2, the Non-parties shall produce to Class Counsel a copy of their respective Mailing Lists;

2. An Order that the production of the Mailing Lists if available by the Non-parties under paragraph 1 of this Order is subject to the following conditions and limitations:

(a) The Mailing Lists shall only be used by Class Counsel for effecting notices to the Class, and for the full and fair disposition of the issues in the within action;

(b) Class Counsel shall not disclose the Mailing Lists or any information contained in the mailing list to any person or organization, other than the Court-appointed Notice and/or Claims Administrator;

(c) This Order constitutes an order compelling the production of the information outlined in paragraph 1 within the meaning of applicable privacy laws, and this Order satisfies the requirements of section 7(3)(c) of the Personal Information Protection and Electronic Documents Act, SC 2000, c 5; section 41(1)(d) of the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3, Schedule A; section 41(1)(b) of the Personal Health Information Act, SNL 2008, c p-7.01; and section 19 (1) of the Act respecting Health Services and Social Services, CQLR c S-4.2;

(d) Production of the Mailing Lists by the Non-parties in accordance with this Order shall not result in the Non-parties being held in breach of the Personal Health Information Protection Act, 2004, S.O. 2004, the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, Personal Health Information Act, SNL 2008, c p-7.01, the Act respecting Access to Documents held by Public Bodies and the Protection of Personal Information, CQLR c. A2.1, or the Act respecting Health Services and Social Services, CQLR c. S-4.2 or any other equivalent provincial health information and/or privacy Acts in Canada;

(e) The Non-parties are released from any and all obligations pursuant to any and all applicable privacy laws, including common law, statutes, and regulations in relation to the disclosure of personal information and personal health information required by this Order;

(f) The Non-parties shall not be held liable by or to any person or organization regardless of whether or not the person or organization is directly involved in the within litigation as a result of producing the Mailing Lists to Class Counsel in accordance with this Order;

3. An Order that the Non-parties shall produce a copy of the Mailing Lists if available to Class Counsel within 90 days of receiving this Order;

4. An Order that Class Counsel shall reimburse the Non-parties for the reasonable expense of producing the Mailing Lists, in accordance with this Order. Any disagreement as between Class Counsel and the Non-parties regarding the reasonable expense of producing the Mailing Lists shall be determined by this Honourable Court;

5. An Order that the name and contact information of patients identified in the Mailing Lists shall in no circumstances be placed in the court record without the authorization of said patients; and

6. An Order that there shall be no costs of the motion.

4Mr. Nardi seeks the disclosure of the mailing lists because (a) the Mailing Lists identify the patients who were potentially exposed to the M. chimaera bacteria; (b) the Mailing lists will facilitate communicating with the Class Members about the prosecution of the action and about settlement negotiations, if any; and (c) the Mailing lists will facilitate gathering evidence for the common issues trial.

5In class proceedings, the court has the jurisdiction to make the requested order for the disclosure of contact information in the possession of non-parties,³ but a formal order is necessary because when the court orders the production of the names and contact information of individuals whose information is in the hands of hospitals, the order provides an exception to the statutory privacy protection of the Personal Health Information Protection Act, 2004 (PHIPA), that would prohibit the hospital from disclosing personal health information.⁴

6Having reviewed the motion record, I am satisfied that the relief requested should be granted. I have signed the Order.

Perell, J.

Footnotes

1. 1S.O. 1992, c. 6.
2. 2Nardi v. Sorin Group Deutschland GMBH, 2021 ONSC 3735
3. 3Sheridan Chevrolet v. Denso, 2021 ONSC 3648; Airia Brands v Air Canada, 2016 ONSC 1371, Iovine v. Toronto Sun Wah Trading Inc., 2014 ONSC 6555.
4. 4Iovine v. Toronto Sun Wah Trading Inc., 2014 ONSC 6555.