Civil procedure — Class proceedings — Certification — Defendants operating clinics providing electroencephalogram tests (EEGs) — Patients alleged to have been exposed to Hepatitis B — Class action certified — Class for infected patients — Subclass for uninfected patients alleged to have suffered nervous shock as result of notification of possible infection — Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5.
Civil procedure — Class proceedings — Certification — Common issue — Defendants operating clinics providing electroencephalogram tests (EEGs) — Patients alleged to have been exposed to Hepatitis B — Class action certified — Class for infected patients — Common issue of standard of care of clinics — No common issue on issue of liability and damages because question of causation individual to each claimant — Common issue on causation would be unfair to defendants — Class Proceedings Act, 1992, S.O. 1992, c. 6, s. 5.
In 1996, a public health inspector identified a possible link between an outbreak of Hepatitis B and the clinics where the defendants provided electroencephalogram tests (EEGs). Authorities notified over 18,000 patients by letter that they should be tested. The plaintiff DF was one of those who had contracted the disease and the plaintiff RA had become a carrier of it. The plaintiffs brought a proposed class proceeding and claimed in negligence and for breach of contract. Their motion for certification under the Class Proceedings Act, 1992 was granted, and the certification order was upheld but amended by the Divisional Court. By the order of the Divisional Court, a group who did not contract the disease, but who had been informed of the possibility and who were tested, was removed from the class of plaintiffs. The Divisional Court also amended the description of the common issue in the certification order. The plaintiffs sought and were granted leave to appeal; they sought to restore the original order. The defendants were granted leave to cross-appeal; they sought to have the certification order dismissed in its entirety.
Held, the order of the Divisional Court should be set aside and the certification order should be varied.
The Divisional Court was wrong to put aside the group of persons who received notice of the possibility of infection, were tested, and were uninfected. Given the uncertain state of the law on tort relief for nervous shock, it was not appropriate that the court should reach a conclusion at this early stage and without a complete factual foundation. On the assumption that a legal obligation existed, this segment of the class proceeding was ideally suited for certification. There were many persons with the same complaint, each of which would typically represent a modest claim that would not justify an independent action. In addition, the nature of the overall claim lent itself to aggregate treatment because individual reactions would likely be similar responses of fear of infection and of anxiety during the period waiting for a test result, and a class proceeding was the preferable mode of bringing these claims to trial. The uninfected constituted a subclass for which there was a common issue for trial about l iability and punitive and exemplary damages. In reaching this conclusion about the common issue, it was contemplated that the claims could be tried without a significant involvement of the uninfected members and, if appropriate, s. 24 of the Act could be used to assess aggregate relief and proportional or average application of that relief. At this stage of the action, there was no substance to the argument that the subclass of uninfected claimants and family law claimants could not be represented by the representative plaintiffs who were infected patients. If and when real problems arose, separate representation could easily be established.
As for the infected patients, there was a cause of action and there was a commonality that suggested resolution of their claims as a class action. The problematic aspect, however, was whether the common issue could encompass liability and damages, and, in particular, there was a problem about causation. The Divisional Court stated for the infected class the common issue of whether the evidence of causation, in the absence of evidence to the contrary, could be proof of causation on a balance of probabilities; this definition, however, was too expansive and was unfair to the defendants because causation was an individual issue with respect to every member of the class. The Divisional Court definition of this common issue contemplated a hearing as to causation without the hearing of class members and reflected the reasoning in Snell v. Farrell that a trial judge may apply common sense and draw an inference that the failure to meet the required standard of care was the cause of the injury. While that might be the ultimate test, it was, however, too soon to anticipate it, and it should only follow discoveries and a trial involving each claimant. Causation could not be handled as a common issue, and it followed that liability and damages failed as common issues. There was, however, a common issue that remained and, given the number of potential plaintiffs and the similarities evident in their claims, the potential efficiency and flexibility in advancing their claims under the Act should be utilized where reasonable. In this case, the common issue was the standard of conduct expected from the clinics from time to time and whether they fell below the standard. This could fairly be tried as a common issue and involved a matter that, if determined, would move the litigation forward. The participation of the class members was not needed for this inquiry. In the result, the order of the Divisional Court should be set aside and the certification order should be varied in accordance with these reasons.
Cases referred to
Abdool v. Anaheim Management Ltd. (1995), 21 O.R. (3d) 453, 121 D.L.R. (4th) 496, 31 C.P.C. (3d) 197 (Div. Ct.); Bendall v. McGhan Medical Corp. (1993), 14 O.R. (3d) 734, 106 D.L.R. (4th) 339, 16 C.P.C. (3d) 156 (Gen. Div.); Campbell v. Flexwatt Corp. (1997), 44 B.C.L.R. (3d) 343, [1998] 6 W.W.R. 275, 15 C.P.C. (4th) 1 (B.C.C.A.) [leave to appeal to S.C.C. refused (1998), 228 N.R. 197n]; Chippewas of Sarnia Band v. Canada (Attorney General) (1996), 29 O.R. (3d) 549, 137 D.L.R. (4th) 239, 2 C.P.C. (4th) 295 (Gen. Div.), supp. reasons 2 C.P.C. (4th) 322 (Ont. Gen. Div.); General Motors of Canada Ltd. v. Naken, [1983] 1 S.C.R. 72, 144 D.L.R. (3d) 385, 46 N.R. 139, 32 C.P.C. 138; Harrington v. Dow Corning Corp. (1996), 22 B.C.L.R. (3d) 97, [1996] 8 W.W.R. 485, 31 C.C.L.T. (2d) 48, 48 C.P.C. (3d) 28 (B.C.S.C.); Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, 49 B.C.L.R. (2d) 273, 74 D.L.R. (4th) 321, 117 N.R. 321, [1990] 6 W.W.R. 385, 4 C.C.L.T. (2d) 1, 43 C.P.C. (2d) 105 (sub nom. Hunt v. T & N plc); Mason v. Westside Cemeteries Ltd. (1996), 135 D.L.R. (4th) 361, 29 C.C.L.T. (2d) 125 (Ont. Gen. Div.); Nespolon v. Alford (1998), 40 O.R. (3d) 355, 161 D.L.R. (4th) 646, 41 C.C.L.T. (2d) 258, 35 M.V.R. (3d) 280 (C.A.) [leave to appeal to S.C.C. refused (1999), 236 N.R. 183n]; Snell v. Farrell, [1990] 2 S.C.R. 311, 107 N.B.R. (2d) 94, 72 D.L.R. (4th) 289, 110 N.R. 200, 267 A.P.R. 94, 4 C.C.L.T. (2d) 229; Vanek v. Great Atlantic & Pacific Co. of Canada, [1997] O.J. No. 3304 (Gen. Div.); White v. Chief Constable of South Yorkshire, H.L., December 3, 1998 (unreported)
Statutes referred to
Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 1 "common issues", 5(1)(a), (2), 8(1)(e), (2), 24
APPEAL from a decision of the Divisional Court (1998), 37 O.R. (3d) 235, 156 D.L.R. (4th) 735, 18 C.P.C. (4th) 208 varying an order of Jenkins J. (1997), 32 O.R. (3d) 400 (Gen. Div.) certifying an action under the Class Proceedings Act, 1992, S.O. c. 6.
Michael L. McGowan and Dorothy H. Fong, for appellants.
Mary M. Thomson and David E. Leonard, for respondent, Ronald
H. Wilson.
Frank G. Csathy, for respondent, Nicholas Kyprianou.
The judgment of the court was delivered by
CARTHY J.A.: — This appeal, by leave from the Divisional Court, concerns the certification of a class action in a medical negligence proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6 ("CPA").
Facts
The respondent, Dr. Wilson, operated five clinics that provided electroencephalogram tests (EEGs) between 1989 and 1996 in the Durham Region and in the eastern part of Metropolitan Toronto. The respondent, Kyprianou, was a technician who administered EEG tests. The defendants, John Doe and Jane Doe, represent the other, presently unidentified, workers in Dr. Wilson's clinics who also administered EEG tests.
In 1996, a public health inspector identified a possible link between the defendant's clinics and an outbreak of Hepatitis B. Public Health Authorities notified over 18,000 patients, by letter, that they may have been infected and that they should be tested. At least 75 of the patients are known to have contracted the disease and three became violently ill and were hospitalized.
Of those who responded, 75 persons showed symptoms of recent infection, and approximately 1,100 were termed "suspect cases" because there was evidence of earlier infection with Hepatitis B. Because there are no symptoms in a substantial percentage of infected persons, these numbers are expected to increase. These two groups, plus some carriers of Hepatitis B, comprise the class of "infected" patients identified by both Jenkins J. on the motion for certification and the Divisional Court on appeal. The patients who received the notification letter and showed no symptoms after testing comprise the "uninfected" portion of the class.
The representative plaintiffs claim in negligence and breach of contract alleging that they contracted Hepatitis B during performance of EEGs at the clinics operated by Dr. Wilson.
Robert Anderson, one of the proposed representative plaintiffs, is 57 years old. He is married with three children and is not presently employed. Mr. Anderson attended Dr. Wilson's Ajax clinic for an EEG on June 29, 1993. Mr. Anderson now carries the Hepatitis B virus. He is expected to remain an infection carrier for the rest of his life. The other proposed representative plaintiff, Deborah Fischer, is a 45-year-old bank manager. She is married with two children. She attended Dr. Wilson's North York clinic for an EEG on March 23, 1995. She contracted Hepatitis B. Ms. Fischer became severely ill and twice neared death. She was hospitalized for about ten days and was off work for approximately ten weeks.
Procedural History
The initial certification motion proceeded before Jenkins J. on January 13, 1997. In reasons reported at (1997), 32 O.R. (3d) 400 (Ont. Gen. Div.), Jenkins J. certified the plaintiffs' action as a class proceeding and defined the class to include:
| 1. | all patients of Dr. Wilson any time after January 1, 1990 who contracted Hepatitis B after being given an EEG at one of the clinics, or the estate of those now deceased; |
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| 2. | all persons who contracted the disease from an infected patient (or their estates) (herein called "derivative claimants"); |
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| 3. | all patients any time after January 1, 1990 who did not contract the disease from the test but who nonetheless were sent a notice by public health officials to be tested and were tested (or their estates); |
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| 4. | all living parents, grandparents, children, grandchildren, siblings and spouses of infected patients, cross-infected persons and uninfected patients (family law claimants). |
Jenkins J. defined the common issue as "liability and punitive and exemplary damages".
On appeal to the Divisional Court, Campbell J., in reasons reported at (1998), 37 O.R. (3d) 235, 156 D.L.R. (4th) 735 (Div. Ct.), upheld certification of the class but removed from it the group of plaintiffs who did not contract Hepatitis B but had been informed of the possibility and were tested. The basis for their claim was in nervous shock, i.e., the psychological trauma of being told of the possibility of infection and the resultant uncertainty as to their condition until they received negative test results. Campbell J. stated that the weight of Ontario law does not recognize claims for fear and nervous shock in the absence of a diagnosed psychological or psychiatric illness.
Further, Campbell J. amended the description of the common issues in the certification order. Campbell J. redefined the common issues as follows [at p. 244]:
| -- | Did the defendants breach the standard of care for infection control procedures? |
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| -- | Did the clinics provide a common source of infection for those patients who contracted Hepatitis B? |
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| -- | Does the evidence of causation, in the absence of evidence to the contrary, amount to proof of causation on a balance of probabilities? |
| -- | Is this a case for punitive and exemplary damages? |
Thus, both courts concluded that a class should be certified, the Divisional Court confining the class to infected persons, and the Divisional Court selecting a more particularized statement of the common issues.
The plaintiffs sought, and were granted, leave to appeal the decision of the Divisional Court. They seek to restore the order of Jenkins J. The defendants were granted leave to cross-appeal and seek to have the certification application dismissed in its entirety.
Analysis
This is the first time this court has considered the certification of a class action and I am mindful of the deference which is due to the Superior Court judges who have developed expertise in this very sophisticated area of practice. The Act provides for flexibility and adjustment at all stages of the proceeding and any intervention by this court at the certification level should be restricted to matters of general principle.
| 1. | Does the statement of claim disclose a cause of action for uninfected patients? |
In my view the Divisional Court was wrong to put aside the class of persons who received notice from the Public Health Authorities of the possibility of infection, were tested and are unaffected. The basis for their claim is in nervous shock. Although the House of Lords [See Note 1 at end of document] has decided that emotional suffering without psychiatric symptoms does not qualify for tort relief, two recent Ontario Superior Court judges have held to the contrary. In Mason v. Westside Cemeteries Ltd. (1996), 135 D.L.R. (4th) 361, 29 C.C.L.T. (2d) 125 (Ont. Gen. Div.), Madam Justice Molloy awarded damages for nervous shock to a son when a funeral home lost the cremated remains of his parents' bodies. Similarly, in Vanek v. Great Atlantic & Pacific Co. of Canada, [1997] O.J. No. 3304 (Gen. Div.), Cosgrove J. adopted Molloy J.'s reasoning in Mason and awarded damages for mental distress to a father who suffered chronic anxiety after his daughter swallowed some contaminated juice.
In Nespolon v. Alford (1998), 40 O.R. (3d) 355 at p. 368, 161 D.L.R. (4th) 646 at pp. 660-61 (C.A.) [See Note 2 at end of document] this court, in a majority decision, denied damages for nervous shock arising out of a motor vehicle accident, but in doing so Abella J.A. commented as follows:
A number of circumstances have been held by the courts to fall within the ambit of risk leading to liability for nervous shock. These include whether there was a relationship between the tortfeasor and the injured person, whether the injured person was acting as a rescuer, and whether the injured person anticipated or saw the accident. None of these circumstances are present here. |
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The issue then becomes whether there are any policy reasons to add someone in Nespolon's circumstances to this class of persons entitled to recover damages for nervous shock. In Hall v. Herbert, [1993] 2 S.C.R. 159 at p. 203, 101 D.L.R. (4th) 129, Cory J. said: |
. . . even if a duty of care is found to exist, the court will have to determine whether, for public policy reasons, that duty should be limited in part or in whole. |
The cautionary words of Griffiths J.A. [in Bechard v. Haliburton Estate (1991), 5 O.R. (3d) 512 (C.A.) at p. 520], are particularly apposite in deciding whether policy grounds justify Nespolon recovering damages from the three boys: |
The "policy grounds" that have concerned the courts in these cases is that there should not be unlimited liability to persons who suffer nervous shock. The perceived danger is that every accident may generate an ever-widening circle of plaintiffs including, possibly, the casual passerby who witnesses the accident and those who come to gaze at the scene later, as well as the relatives of all of those to whom the details will be recounted. |
In my view, there are no policy reasons to justify expanding the category of those whose nervous shock is compensable, to include a stranger in Nespolon's circumstances. |
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Section 5(1)(a) of the Class Proceedings Act states: |
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5(1) The court shall certify a class proceeding on a motion under section 2, 3 or 4 if, |
| (a) | the pleadings or the notice of application discloses a cause of action; |
(Emphasis added)
Wilson J. articulated the general test for whether a pleading discloses a cause of action in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959 at p. 977, 43 C.P.C. (2d) 105 at p. 123:
Thus, the Ontario Court of Appeal has firmly embraced the "plain and obvious" test, and has made clear that it too is of the view that the test is rooted in the need for courts to ensure that their process is not abused. The fact that the case the plaintiff wishes to present may involve complex issues of fact and law or may raise a novel legal proposition should not prevent a plaintiff from proceedings with his action. |
Superior Court judges have applied this "plain and obvious" test in the context of class actions: see, for example, Chippewas of Sarnia Band v. Canada (Attorney General) (1996), 29 O.R. (3d) 549 at p. 564, 137 D.L.R. (4th) 239 (Gen. Div.).
In the present case it is at least arguable that the defendant's alleged negligence had the foreseeable consequence of a general notice to patients that a test was required to determine if they were infected. It was also arguably foreseeable that some suffering from shock would be occasioned by the notice. When the claimants are limited to those who received the notice and family law claimants it can further be argued that there is no ever widening circle of potential liability created in these circumstances and that there is no policy concern to justify excluding recovery.
Given the uncertain state of the law on tort relief for nervous shock, it is not appropriate that the court should reach a conclusion at this early stage and without a complete factual foundation. It cannot be said, in this case, that it is plain and obvious that the claim for the tort of mental distress standing alone will fail. On the assumption that a legal obligation may exist, this segment of the class proceeding is ideally suited for certification. There are many persons with the same complaint, each of which would typically represent a modest claim that would not itself justify an independent action. In addition, the nature of the overall claim lends itself to aggregate treatment because individual reactions to the notices would likely be similar in each case -- fear of a serious infection and anxiety during the waiting period for a test result. If evidence from patients to support such reactions to the notices is necessary, it would probably suffice to hear from a few typical claimants. The balanc e of the evidence as to liability would relate to the conduct of the clinics, the reaction of the Public Health Authorities and foreseeability issues.
Thus, in my view, the claim in tort for mental distress for this group of persons should proceed as the preferable mode of bringing these claims forward.
| 2. | What is the appropriate definition of the common issues for uninfected persons who received the notice? |
Section 8(1)(e) of the Class Proceedings Act provides: |
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8(1) An order certifying a proceeding as a class proceeding shall, |
(e) set out the common issues for the class;
Section 1 of the CPA defines "common issues" as
| (a) | common but not necessarily identical issues of fact, or |
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| (b) | common but not necessarily identical issues of law that arise from common but not necessarily identical facts. |
Section 8(2) of the Act contemplates a subclass and the order of Jenkins J. includes both infected and uninfected patients in separate paragraphs describing a single class. I consider the uninfected a subclass of the whole. The infected patients must establish that the clinics failed to meet an appropriate standard of care for infection control and that they were infected as a result. The factual basis for the uninfected patients will obviously not include the same causation factor. Their claim is based on an allegation that the conduct of the defendants occasioned the notices which, in turn, foreseeably caused them nervous shock. The difference in what each group must prove affects the definition of the common issues for each group.
I would define the common issue for the uninfected patients, and their derivate claimants, in the broadest terms, as did Jenkins J. The common issues for trial should be "liability and punitive and exemplary damages".
This is in contemplation that the evidence as to the alleged negligence and reaction of the authorities can be conveniently tried without a significant involvement of the uninfected members of this subclass and, if appropriate, the use of s. 24 of the Act to assess aggregate relief and proportional or average application of that relief.
The Infected Patients
I have no difficulty agreeing with both Jenkins J. and the Divisional Court and their reasons for finding that these patients comprise a class, that the pleadings disclose a cause of action, and that there is a commonality which suggests resolution in the context of a class action. My concern is with the definition of the common issues and whether it can encompass liability and damages. In particular, I am concerned about causation, and its necessary link to each individual claimant.
The defendants put their position as follows in the factum of the respondent Wilson, referring to affidavit evidence of Dr. Loutman:
| 16. | In order to determine if there is a causal relationship between a patient receiving an EEG at one of the clinics and their Hepatitis B status, serologic data on each patient is necessary. While not being conclusive proof of causation, the serologic data is a critical factor in assessing whether there is a temporal and therefore, causal relationship between the EEG and infection. |
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| 17. | In addition to obtaining and analysing this serologic data, each plaintiff must be assessed for other risk factors for Hepatitis B such as lifestyle, age, blood transfusions, recent travel to high risk areas, sexual partners and IV drug use. This examination is required to determine whether a particular event, namely an EEG, was the source of infection. The mere fact that an individual underwent an EEG at one of the clinics and presently shows a positive test for Hepatitis B is insufficient to establish a causal relationship between the two events. |
The reasons of Campbell J. deal with the issue of causation at p. 243:
But if the plaintiffs can establish a common breach of the standard of care for infection control practices, a common highly infectious EEG technician, with a particular strain of the Hepatitis B virus and a common body of epidemiological evidence that patients treated at these clinics by that infected technician are over 500 times more likely than the general population to come down with Hepatitis B, then they have gone a long way towards discharging the onus of proof. A trial judge might easily conclude that proof of those facts, in the absence of evidence to the contrary, amounts to proof of causation on a balance of probabilities. |
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The certification of the class action in respect of the infected patients would not reverse the onus of proof. Relatively simple elements can be added to the litigation plan to ensure, if the plaintiffs prove what they say they can prove, that the defendants have a fair opportunity to test the possibility that any one or more of the infected clinic patients contracted their hepatitis B elsewhere. |
(Emphasis added)
My concern is that Campbell J. has been too expansive in his approach to defining the common issues and has imposed a consequent unfairness upon the defendants; in particular by his inclusion of the issue: "Does the evidence of causation, in the absence of evidence to the contrary, amount to proof of causation on a balance of probabilities?"
Causation is an individual issue with respect to every infected member of the class. Some of the patients who answered the questionnaire were carriers and probably contracted the virus prior to attending the clinic. The evidence of causation as to some individuals may be equivocal in the sense that there may be other competent sources. In such cases the only approach is for one judge to assess the evidence concerning all competent sources and make a finding of liability on the basis of probability on all the evidence. If there were only one plaintiff, the trial would deal with the appropriate standard of care, the actual standard of care, the plaintiff's evidence as to treatment, and the plaintiff's medical and lifestyle history. Evidence on all of these issues would be necessary to arrive at a balanced conclusion as to whether there was negligent conduct and whether this was the probable cause of the plaintiff's complaint.
The order under appeal contemplates a hearing as to causation without the involvement of the class members. It invites a judgment on only a portion of the issue of causation, which under the Act, is a res judicata against the parties, and not only stands in the way of a balancing of all evidence by one judge at one hearing, but also will appear as a reversal of the onus of proof. Assuming an initial finding against Dr. Wilson and Mr. Kyprianou, it will be left to them to produce evidence and satisfy a court that actual causation is elsewhere.
I think that what Campbell J. had in mind was the reasoning in Snell v. Farrell, [1990] 2 S.C.R. 311, 72 D.L.R. (4th) 289, to the effect that it is not essential to have a positive medical opinion to determine causation. The trial judge may apply common sense to the evidence and thus draw an inference that the failure to meet the required standard of competence was the cause of the injury. That may be the ultimate test, but it is too soon to anticipate it, and it should only follow discoveries and a trial involving each claimant.
No case has been produced either here or in the United States where the class members and their evidence and medical records were essential to a finding of liability. Implants [See Note 3 at end of document], motor vehicle malfunctions [See Note 4 at end of document], improper interest charges [See Note 5 at end of document] and such all lend themselves to resolution as to liability without involvement of the injured parties. That is not the situation here, where an injured person may or may not be able to relate the infection to the defendants and their clinics.
If causation cannot be handled as a common issue, then liability and damages must also fall. The question then becomes whether there are sufficient common issues left to justify certification. In my view, it seems sensible with this number of potential plaintiffs and the similarities that are evident in their claims, that any potential efficiency in advancement of their claims through the flexibility provided by the CPA should, where reasonable, be utilized.
Counsel for Dr. Wilson argued that the representative plaintiffs have failed to identify common issues and in fact, are unable to do so because this is a medical negligence action. They submit that in medical negligence actions liability turns on the medical presentation of each patient. Mr. Kyprianou adopted this position.
In my view, this argument is far too broad. Unlike typical medical negligence cases this action concerns allegations of a general practice over a number of years falling below acceptable standards. Those general allegations can be pulled out and tried separately, to the benefit of all parties.
I agree with the British Columbia Court of Appeal's observation, as did Campbell J., that the common issues need only involve a matter, that if determined, would move the litigation forward. In Campbell v. Flexwatt Corp. (1998), 15 C.P.C. (4th) 1, 44 B.C.L.R. (3d) 343 (C.A.), leave to appeal to the Supreme Court of Canada denied, Cumming J.A., speaking for the court at pp. 17-18 reasoned:
The Class Proceedings Act requires that the claims of the class members raise common issues which, for reasons of fairness and efficiency, ought to be determined within one proceeding. Common issues can be issues of fact or law and do not have to be identical for every member of the class. |
When examining the existence of common issues it is important to understand that the common issues do not have to be issues which are determinative of liability; they need only be issues of fact or law that move the litigation forward. The resolution of a common issue does not have to be, in and of itself, sufficient to support relief. To require every common issue to be determinative of liability for every plaintiff and every defendant would make class proceedings with more than one defendant virtually impossible. |
(Emphasis added)
In this case, the common issue as to the standard of conduct expected from the clinics from time to time, and whether they fell below the standard, can fairly be tried as a common issue. Resolving this issue would move the litigation forward. The participation of the class members is not needed for that inquiry, although their later evidence may bear upon whether standards, such as the use of gloves, were actually met in individual cases. Isolating this one major issue, the class action proceeding clearly appears to be the preferable method of resolution to the benefit of all parties.
Thus, it is my view that the common issues for the uninfected patients and their family law claimants should extend from liability through damages but that the common issue for the infected patients and their derivative claimants should be restricted to whether the defendants breached the standard of care for infection control practices.
These reasons should not be read as saying that there cannot be a certification or a common issue if the claimants' evidence is individually necessary. Subclasses and subissues are recognized by the Act. I have noted above that in this case claimants may have to give evidence as to whether protective gloves were used when they were treated, as one example of what could develop from a finding on the common issue. The use of gloves is something that can be dealt with on discovery and in a mini-trial without prejudice to the defendant. It would be quite otherwise if a general finding was made of prima facie causation and the defendant then had to overcome that by establishing another cause.
In the result, I have, in effect, identified a subclass of uninfected patients and family law claimants and should consider whether separate representation is required as provided in s. 5(2) of the Act. Although the representative plaintiffs are infected patients, and the Act contemplates representatives that have the same complaints as the class, I cannot see any reality at this stage to the argument that they would not fairly and adequately represent the interest of all patients or that there is presently any conflict of interest. Most of the facts pertaining to the issues to be tried are common to all. If and when real problems arise, it will not be difficult to create separate representation. In the meantime, economy favours single representation.
There were other arguments concerning family claimants and cross-infected claimants and the creation of subclasses for each. I agree with the disposition of these issues by the Divisional Court and Jenkins J. There will be later opportunities to make adjustments as may be justified by events and, with the more restricted common issue, there is little likelihood that this will be necessary before the trial of the issue.
I would, therefore, set aside the order of the Divisional Court and vary the order of Jenkins J. in accordance with these reasons.
As in the Divisional Court, success has been divided and I would order no costs of the appeal or motion for leave to appeal.
| Order accordingly. |
Note 1: White v. Chief Constable of South Yorkshire, unreported decision of the House of Lords released December 3, 1998.
Note 2: Court of Appeal decision released before White, but thereafter application for leave to the Supreme Court of Canada dismissed, January 21, 1999.
Note 3: See, for example, Bendall v. McGhan Medical Corp. (1993), 14 O.R. (3d) 734, 106 D.L.R. (4th) 339 (Gen.Div.); Harrington v. Dow Corning Corp. (1996), 48 C.P.C. (3d) 28, 22 B.C.L.R. (3d) 97 (S.C.).
Note 4: See, for example, General Motors of Canada Ltd. v. Naken, [1983] 1 S.C.R. 72, 144 D.L.R. (3d) 385.
Note 5: Abdool v. Anaheim Management Ltd. (1995), 21 O.R. (3d) 453, 121 D.L.R. (4th) 496 (Div.Ct.).