* Leave to appeal to the Ontario Court (General Division), Divisional Court has been granted.
Civil procedure — Class proceedings — Certification — Plaintiffs applying for certification as class proceeding of negligence action against doctor and lab technicians arising out of infection with Hepatitis B of patients who had E.E.G. tests at doctor's clinics — Proposed class to include infected patients, persons who contracted Hepatitis B from infected patients, and uninfected persons who incurred out-of-pocket expenses and suffered nervous shock as result of notification that they might have contacted Hepatitis B — Certification granted — Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 5, 6.
An outbreak of Hepatitis B was traced to clinics operated by the defendant Dr. W, where patients allegedly contracted the viral infection after receiving EEG tests. The Ministry of Health notified approximately 18,000 former patients and relatives of former patients that they should be tested for the presence of Hepatitis B. The plaintiffs moved for certification as a class proceeding of a negligence action against Dr. W and lab technicians. The proposed class included persons who were patients of Dr. W and who contracted Hepatitis B after being administered EEG tests in one of his clinics ("infected patients"); persons who contracted Hepatitis B from one of the infected patients ("cross-infected persons"); persons who did not contract Hepatitis B after being treated by Dr. W, or who were not patients of Dr. W and who did not contract Hepatitis B from an infected person, but who were advised by any public health authority or doctor that they may have contracted Hepatitis B and should be tested ("uninfected patients" and "potentially cross-infected persons", respectively). Damages were claimed on behalf of uninfected patients and potentially cross-infected persons for their out-of-pocket expenses, nervous shock, fear for their health and loss of enjoyment of life.
Held, the motion should be granted.
Section 6 of the Class Proceedings Act, 1992 provides that certification shall not be refused "solely on any of the following grounds". On a fair reading of s. 6, which would give effect to the spirit of this remedial legislation, "any" should be read as "any one or more".
A cause of action existed for the classes proposed in the statement of claim. A cause of action can exist for mental distress notwithstanding the absence of trauma. However, the description of those persons who were not infected and not potentially cross-infected should be limited: only those persons who received notice from the Ministry of Health and responded to those notices by attending a hospital or medical clinic for testing for the Hepatitis B infection ought to be represented.
The issues of liability, punitive and exemplary damages founded in negligence were common issues for the class.
The proposal of counsel for Dr. W that, as an alternative to the Act, test cases could be utilized, was not a satisfactory alternative to a class proceeding. With respect to the goal of modification of behaviour of the tortfeasor, a class action, in the circumstances, was more likely to accomplish that objective.
The plaintiffs were both infected persons. The fact that neither of the plaintiffs was a cross-infected person did not mean that they ought not to be considered plaintiffs' representatives of such individuals. To hold otherwise would require a variety of individual plaintiffs to represent each subclass in a proceeding.
Sutherland v. Canadian Red Cross Society (1994), 17 O.R. (3d) 645, 112 D.L.R. (4th) 504, 21 C.P.C. (3d) 137 (Gen. Div.), distd
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.), consd
Other cases referred to
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.); Godi v. Toronto Transit Commission, Ont. Gen. Div., Winkler J., September 20, 1996; 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.); Mason v. Westside Cemeteries Ltd. (1996), 135 D.L.R. (4th) 361, 29 C.C.L.T. (2d) 125 (Ont. Gen. Div.); Nantais v. Telectronics Proprietary (Canada) Ltd. (1995), 25 O.R. (3d) 331, 127 D.L.R. (4th) 552, 40 C.P.C. (3d) 245 (Gen. Div.); Peppiatt v. Nicol (1993), 16 O.R. (3d) 133, 20 C.P.C. (3d) 272 (Gen. Div.)
Statutes referred to
Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 1 "common
issues", 5, 6, 11, 12, 15(2), 24
Family Law Act, R.S.O. 1990, c. F.3
Rules and regulations referred to
Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(1) (b)
Authorities referred to
Cochrane, Class Actions: A Guide to the Class Proceedings Act,
1992, p. 27
Ontario Law Reform Commission, Report on Class Actions (1982),
vol. 2, pp. 191, 345
MOTION for certification of an action as a class proceeding.
Michael L. McGowan and Dorothy H. Fong, for plaintiffs.
Mary M. Thomson and David E. Leonard, for defendant, Ronald
H. Wilson.
Frank G. Csathy, for defendant, Nicholas Kyprianou.
J.H. JENKINS J.: — This is a motion by the plaintiffs for certification of this action as a class proceeding pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6. Robert Anderson and Deborah Fischer propose to bring this action on behalf of the following class of persons who had direct, indirect and potential indirect contact with medical clinics operated by the defendant Ronald H. Wilson ("Wilson") in the Durham Region and in the eastern part of Metropolitan Toronto. The defendant Nicholas Kyprianou ("Kyprianou") was a technician in Wilson's clinics who administered E.E.G. tests and was responsible for sterilizing the E.E.G. equipment. The defendants John Doe and Jane Doe represent other presently unidentified employees in the Wilson clinics who either administer E.E.G. tests and are responsible for sterilizing the E.E.G. equipment.
From 1990 to approximately February 1996, an outbreak of Hepatitis B was traced to the Wilson clinics. It is alleged that over 100 infected patients contracted Hepatitis B after receiving E.E.G. tests at the Wilson clinics. Since this was 500 times the rate for the general population, the Ontario Ministry of Health notified approximately 18,000 former patients and relatives of former patients, that they should be medically tested for the presence of Hepatitis B.
The proposed class has been delineated by the plaintiffs as follows:
A. All persons who were patients of Dr. Ronald H. Wilson at any time after 1 January 1990 and who contracted hepatitis B after being administered EEG tests in one of Dr. Wilson's clinics, or where such a person is deceased, the personal representative of the estate of the deceased person; (persons included in this paragraph A are hereinafter referred to as "Infected Patients") |
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B. All persons who contracted hepatitis B from one of Dr. Wilson's Infected Patients, or from another Cross Infected Person, or where such a person is deceased, the personal representative of the estate of the deceased persons (persons included in this paragraph B are herein referred to as "Cross Infected Persons"); |
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C. All persons who were patients of Dr. Ronald H. Wilson at any time after 1 January 1990 and who did not contract hepatitis B after being treated by Dr. Wilson but who were sent notices by any public health authority advising that they may have contracted hepatitis B and/or other diseases and should be tested, or where such a person is deceased, the personal representative of the estate of the deceased person; (persons included in this paragraph C are hereinafter referred to as "Uninfected Patients"); |
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D. All persons who were not patients of Dr. Wilson and did not contract hepatitis B but who, as a result of suspicion of having been infected with hepatitis B and/or other diseases by an Infected Patient or Cross Infected Person, were advised by any public health authority or physician that they may have contracted hepatitis B and/or other diseases and should be tested, or where such a person is deceased, the personal representative of the estate of the deceased person; (persons included in this paragraph D are hereinafter referred to as "Potentially-Cross Infected Persons"); |
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E. All living parents, grandparents, children, grandchildren, siblings, and spouses (within the meaning of s. 61 of the Family Law Act) of Infected Patients, Cross Infected Persons, Uninfected Patients, or Potentially Cross-Infected Persons, or where such a family member died after (a) his or her related Infected Patient or Cross Infected Person was diagnosed with hepatitis or (b) his or her related Uninfected Patient or Potentially-Cross Infected Person received a warning notice from a public health authority or physician as the case may be, the personal representative of the estate of the deceased family member, (persons included in this paragraph E are hereinafter referred to as "Family Law Claimants"). |
Compensatory damages are claimed in the sum of $95 million. Punitive and exemplary damages are claimed in the sum of $10 million.
During the hearing of this motion, the plaintiffs abandoned paras. 11A(m) and 11B(k) of the fresh statement of claim, the issue of informed consent.
This action is founded in negligence. The remedies claimed for the infected and cross-infected patients would be dependent on their symptoms, and loss of the usual amenities which flow in injury cases.
Damages are claimed on behalf of uninfected patients and potentially cross-infected persons for their out-of-pocket expenses, nervous shock, fear for their health, and loss of enjoyment of life. A further claim is made on behalf of all members of the proposed class pursuant to the Family Law Act, R.S.O. 1990, c. F.3.
The Signs, Symptoms and Epidemiology of Hepatitis B
Hepatitis B is a viral infection which may be symptomatic or asymptomatic in its presentation. If symptomatic in its acute phase (between 30 days to 180 days, but usually 60 days to 90 days from date of infection), the disease may cause fatigue, lethargy, loss of appetite, jaundice, dark urine and malaise. For 90 per cent of patients who experience an acute phase of the disease, it passes reasonably quickly and there are no remaining sequelae. For the remaining 10 per cent of adult patients, there is a chronic Hepatitis B infection, putting those patients at risk of liver cancer and liver failure.
Hepatitis B is highly infectious. Initially it was thought that the transmission of Hepatitis B primarily occurred through percutaneous (below the skin) routes. It is now recognized that Hepatitis B can be transmitted by contact with infected blood, semen, vaginal secretions, saliva, sweat and tears. Sexual transmission, blood transfusions, IV drug use and travel to highly endemic areas of the world are frequent sources of transmission.
The serologic markers associated with Hepatitis B infection remain with an infected patient indefinitely, whether or not symptoms of the acute phase are present or not. Certain serological markers indicate that the host patient has Hepatitis B and remains capable of infecting others with whom he or she has contact long after his or her own initial exposure to the virus.
It is argued by the defendants that other factors can cause Hepatitis B infections, such as the history of other viral infections, the lifestyle and behavioural components of the patient, the sexual history and partners of the patient, the drug use, blood transfusions and any previous vaccination for Hepatitis B.
The plaintiffs Fischer and Anderson were patients of Dr. Wilson. It is alleged that Ms. Fischer contracted Hepatitis B, her illness was very severe. She nearly died on two occasions. Anderson has been diagnosed as a carrier of the Hepatitis B virus, which condition is expected to continue for the rest of his life.
The Law
The Class Proceedings Act does not create a new cause of action. It is solely procedural. It is remedial legislation and was enacted to accomplish three goals:
| i) | judicial economy, or the efficient handling of potentially complex cases of mass wrongs; |
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| ii) | improved access to the courts for those whose actions might not otherwise be asserted. This involved claims which might have merit but legal costs of proceeding were disproportionate to the amount of each claim and hence many plaintiffs would be unable to pursue their legal remedies; |
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| iii) | modification of behaviour of actual or potential wrongdoers who might otherwise be tempted to ignore public obligations. |
Pursuant to s. 5 of the Class Proceedings Act, 1992, on a motion, the court shall certify the proceeding as a class action if, and only if, all five of the following requirements are met:
| (a) | the pleadings or the notice of application discloses a cause of action; |
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| (b) | there is an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant; |
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| (c) | the claims or defences of the class members raise common issues; |
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| (d) | a class proceeding would be the preferable procedure for the resolution of the common issues; and |
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| (e) | there is a representative plaintiff or defendant who, |
| (i) | would fairly and adequately represent the interests of the class, |
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| (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 |
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| (iii) | does not have, on the common issues for the class, an interest in conflict with the interests of other class members. |
The Class Proceedings Act, 1992 distinguishes among (a) common issues for the class, (b) common issues for a subclass, and (c) individual issues.
| 11(1) | Subject to section 12, in a class proceeding, |
| (a) | common issues for a class shall be determined together; |
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| (b) | common issues for a subclass shall be determined together; and |
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| (c) | individual issues that require the participation of individual class members shall be determined individually in accordance with sections 24 and 25. |
(2) The court may give judgment in respect of the common issues and separate judgments in respect of any other issue. |
Section 12 gives the court a very broad power to make any "order it considers appropriate" respecting the conduct of the class action "to ensure its fair and expeditious determination".
The drafters of the Act were mindful of the problems created by individual issues. Because certification is procedural in nature they have vested broad latitude in the court to deal with individual issues by s. 25 of the Act. |
Peppiatt v. Nicol (1993), 16 O.R. (3d) 133 at p. 142, 20 C.P.C. (3d) 272 at p. 281 (Gen. Div.).
In Bendall v. McGhan Medical Corp. (1993), 14 O.R. (3d) 734 at p. 747, 16 C.P.C. (3d) 156 at p. 171 (Gen. Div.), Montgomery J. held:
It is trite to say that remedial legislation must be given a broad and liberal interpretation. Certification is a fluid, flexible procedural process. It is conditional, always subject to decertification. |
Section 15(2) of the Class Proceedings Act, 1992 provides for a party to move for discovery of the representative party for discovery against the other class members. This section assists the defendants from being deprived of their rights in certain circumstances, and could form the basis of decertification if only a few members were interested in the class action.
Section 5 of the Act must be read in conjunction with s. 6, which I reproduce as follows:
6. The court shall not refuse to certify a proceeding as a class proceeding solely on any of the following grounds: |
| 1. | The relief claimed includes a claim for damages that would require individual assessment after determination of the common issues. |
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| 2. | The relief claimed relates to separate contracts involving different class members. |
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| 3. | Different remedies are sought for different class members. |
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| 4. | The number of class members or the identity of each class member is not known. |
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| 5. | The class includes a subclass whose members have claims or defences that raise common issues not shared by all class members. |
It is my opinion that a fair reading of s. 6, in giving effect to the spirit of this remedial legislation, the proper interpretation of this section should be that "any" should be read as "any one or more". This is the same conclusion reached by Brockenshire J. in Nantais v. Telectronics Proprietary (Canada) Ltd. (1995), 25 O.R. (3d) 331, 40 C.P.C. (3d) 245 (Gen. Div.). In that respect, I would respectfully disagree with Moldaver J. in Abdool v. Anaheim Management Ltd. (1995), 21 O.R. (3d) 453 at p. 473, 31 C.P.C. (3d) 197 at p. 218 (Div. Ct.), wherein he held:
Section 6 of the Act directs that the court, in coming to its decision to certify or not, shall not refuse certification solely if any one of the five delineated grounds is found to exist. Implicit in this, however, is the recognition that a court is entitled to consider the grounds referred to in s. 6 and where two or more of them are found to exist, the cumulative effect of these may legitimately be factored into the s. 5(1)(d) equation. |
(Emphasis added)
Findings
A consideration of s. 5(1)(a) of the Class Proceedings Act, 1992 "do the pleadings or the notice of application disclose a cause of action"? I find the test is the same as the test under rule 21.01(1)(b) of the Rules of Civil Procedure, i.e., whether it is plain and obvious that the claim would fail even if the allegations were proved at trial.
In the case of Mason v. Westside Cemeteries Ltd. (1996), 135 D.L.R. (4th) 361, 29 C.C.L.T. (2d) 125 (Ont. Gen. Div.), Molloy J. held that a cause of action can exist for mental distress notwithstanding the absence of trauma.
I find that a cause of action does exist for the classes proposed in the statement of claim. Counsel for Ronald H. Wilson has conceded for the purposes of this motion that the claim discloses a cause of action with respect to the infected patients and the cross-infected persons. I propose to limit the description of those persons who were not infected and were not potentially cross-infected. In my view, only those persons who received notice from the Ministry of Health and responded to those notices by attending a hospital or medical clinic for testing for the Hepatitis B infection ought to be represented. I agree with Molloy J.'s decision in the case of Mason v. Westside Cemeteries Ltd. I believe that this is a natural extension of the concept of damages arising from a tortious act.
Section 5(1)(b): Is there an identifiable class of two or more persons that would be represented by the representative plaintiff or defendant?
Robert Anderson and Deborah Fischer, the plaintiffs, are persons who are infected with Hepatitis B and who had testing performed on them at the Wilson clinics in the relevant time period. I have identified the class of plaintiffs with the limitation that the description exclude those persons who were not infected and who were not potentially cross-infected and who received notice from the Ministry of Health and have not responded to those notices by attending a hospital or medical clinic for testing for the Hepatitis B infection.
Respecting 5(1)(c): Do the claims or defences of the class members raise common issues? Section 1 of the Class Proceedings Act, 1992 defines "common issues" as follows:
"common issues" means,
| (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; |
The Report on Class Actions (1982) by the Ontario Law Reform Commission at vol. 2, p. 345 stated as follows:
In our view, the benefits of an expanded class action procedure can be secured even where a particular class action gives rise to individual questions as well as common questions. Where the claims of class members are individually recoverable, judicial economy can be achieved by the disposition in one proceeding of questions common to the class; denial of certification in such cases will mean simply that class members' claims will probably be litigated individually. Where the claims of class members are individually nonrecoverable, denial of class status will effectively prevent the assertion of such claims, thereby frustrating the access potential of class actions. Accordingly, we believe that the commonality threshold test for class actions should not be too onerous; a simple common questions requirement, in our opinion, would be sufficient to ensure that every class action certified will either effect certain economies or provide access to the judicial system by those with small claims. |
Undoubtedly, the change from a same interest test to a common questions test may result in a great many more class actions being allowed to go forward. Under the proposed common questions test, the mere fact that a class action may require individual assessment of damages should not bar the action from proceeding as a class action , a position towards which the Ontario courts have been moving in recent years in any event. |
(Emphasis added)
Cochrane, Class Actions: A Guide to the Class Proceedings Act, 1992, at p. 27 states as follows:
The court will examine, pursuant to s. 5(1)(c), whether the claims or defences of the class members raise a common issue. This, in most situations, will be the question of liability and will focus on the activity or transaction which affects members of the class. This may mean the purchase of a similar product, the use of a similar service, the consumption of food, the use of a pharmaceutical product, the purchase of a particular model of automobile and so on. The class should have an activity or transaction in common. |
It is alleged by the plaintiffs that the first common issue in the present case is liability, which is founded on negligence and would apply to all of the proposed class members.
The defendants rely on the case of Sutherland v. Canadian Red Cross Society (1994), 17 O.R. (3d) 645, 112 D.L.R. (4th) 504 (Gen. Div.). That action was a products liability action, relating to the receipt by patients of blood or blood products infected with HIV, which products had been passed on the market by the Canadian Red Cross Society. Montgomery J. held that since the most common modes by which HIV is transmitted are sexual contact and intravenous drug use, it would be necessary to litigate the possibility of alternate causes of each potential class member's HIV infection.
Counsel for Wilson argues inter alia that the common issues are:
Common Issues
| -- | whether needle electrodes should have been used at Dr. Wilson's clinic between 1990 and 1996; |
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| -- | whether the sterilization techniques applied by Dr. Kyprianou met the standard of care at varying periods between 1990 and 1996. |
| Not | Common Issues |
Standard of Care
| -- | clinical status of each patient and requirement for E.E.G.; | ||
| -- | placement of leads; | ||
| -- | how handled by Dr. Kyprianou; |
| -- | whether fresh leads used each time, i.e., whether from freshly sterilized bundle; |
| -- | whether blood drawn on placement of leads; |
| -- | whether any blood drawn from Dr. Kyprianou on placement of leads. |
It is argued by the defendants that no action for medical malpractice has been certified as a class action in the United States and in Canada.
In Canada, several actions of a medical nature that have been certified as class actions are the following product liability cases: Bendall v. McGhan Medical Corp., supra; Nantais v. Telectronics Proprietary (Canada) Ltd., supra; Harrington v. Dow Corning Corp. (1996), 48 C.P.C. (3d) 28, 22 B.C.L.R. (3d) 97 (S.C.).
In Godi v. Toronto Transit Commission, September 20, 1996, Winkler J. held that the issues of liability, punitive and exemplary damages were common issues for the class.
I am satisfied that the issues of liability, punitive and exemplary damages founded in negligence, are common issues for the class that I have defined.
Respecting s. 5(1)(d): Is a class proceeding the preferable procedure for the resolution of the common issues?
The Ontario Law Reform Commission stated: |
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A court should certify an action as a class action only if it is satisfied that a class action would be superior to other available methods for the fair and efficient resolution of the controversy. |
(Emphasis added)
The word "superior" has been replaced in the section by the word "preferable". Montgomery J. in Sutherland, supra, at p. 652 O.R., p. 511 D.L.R., stated [quoting Report on Class Actions]:
The Committee in ss. 4(d) [now s. 5(1)(d)] selected the word "preferable" over other words such as "reasonable" or "superior", as it was thought that the word "preferable" would best draw the court into a consideration of whether or not the class proceeding was a fair, efficient and manageable method of advancing the claim. The class proceeding should also be preferable in the sense of preferable to other procedures such as joinder, test cases, consolidation and so on. |
(Emphasis in original)
In my opinion, the legislature's deliberate substitution of the word "preferable" tends to make it easier for a court to certify class actions. I regard the word "preferable" to be a less stringent test. I would add to Montgomery J.'s considerations of whether or not the class proceeding was fair, efficient and manageable method of advancing the claim, to include reasonableness, financial viability and judicial economy. It is my opinion that the defendants must provide the court with a concrete workable alternative litigation proposal, which demonstrates that the plaintiffs will not be deprived of their day in court.
In considering this aspect of the judicial economy, the possibility exists that there could be 18,000 separate lawsuits arising from the circumstances giving rise to this cause of action.
The Ontario Law Reform Commission, Report on Class Actions, vol. 1, p. 191, recognized that class actions would ordinarily require more judicial attention and therefore place greater burdens upon the courts than non-class actions. However, in their view, the benefits outweigh the disadvantages:
The Commission recognizes that class actions will ordinarily require more judicial attention and, therefore, place greater burdens upon the courts, than nonclass actions. However, in our view, the critical issue is not really the absolute amount of time expended on class actions; rather, it is whether the benefits that the expenditure of this time confer outweigh any additional burdens imposed on the judiciary. Class actions require more time to administer, but they also tend to involve disputes over larger aggregate amounts, and assert the rights of a greater number of people, than nonclass suits. |
The Commission recognized that many claims would not be individually litigated because of economic, social and psychological barriers. Class actions would tend to ameliorate these difficulties. This is particularly accurate when it appears that only a small proportion of the individual claims involved substantial damages. The vast majority of the claims would arise from those who are uninfected or potentially cross-infected persons.
The existence of numerous fairly modest claims is a strong factor in favour of certification:
As a rule, certification should have as its root a number of individual claims which would otherwise be economically unfeasible to pursue. While not necessarily fatal to an order for certification, the absence of this important underpinning will certainly weigh in the balance against certification. |
Per Moldaver J. (Flinn J. concurring in the result) in Abdool v. Anaheim Management Ltd., supra, at p. 473 O.R., p. 218 C.P.C.
In my respectful view this is the kind of case for which the Class Proceedings Act, 1992 was designed. The stupendous financial burden of a case such as this would consume all or almost all of the proceeds of the judgment of any single plaintiff. The defendants (if responsible) would likely therefore be insulated from any of these claims because of the financial consequences alone. It is only by spreading out the cost that the members of the class have any chance of success. Not only is the class proceeding preferable, it is the only procedure whereby the members of the class will have any real access to the courts. |
(Emphasis added)
Per Zuber J. in Nantais v. Telectronics Proprietary (Canada) Ltd., supra, at p. 349.
I agree with O'Brien J. (Flinn J. concurring) in Abdool v. Anaheim Management Ltd., supra, at p. 464 O.R., p. 210 C.P.C., wherein he states:
The goal is to permit advancement of small claims where the legal costs make it uneconomic to advance them. |
Counsel for the defendants argue that if certification is ordered, there will be as many distinct trials as there are members of the proposed class. They argue that all other possible causes would have to be eliminated before there was any possibility of liability attaching to the defendants. They rely on Sutherland, supra, at pp. 650 and 652 O.R., pp. 509 and 511 D.L.R. for this proposition.
Counsel for Dr. Wilson argues as an alternative to the Class Proceedings Act, 1992, test cases could be utilized similar to ones currently before the courts involving patients who are infected with HIV-infected blood and blood products. I agree that it might be an alternative, provided there was a general agreement of counsel for most of the infected patients, but in my view, this would arise only if this action was not certified as a class action. I do not consider this proposal to be a satisfactory alternative. The Sutherland action is readily distinguishable from this action. Third party claims were likely against various doctors, hospitals and laboratories. With respect to the goal of "modification of behaviour" of the tortfeasor, it is my view that a class action in this set of circumstances would more likely accomplish that objective. Requiring separate lawsuits would deprive many potential class members from not only recovering compensatory damages, but punitive and exemplary damages which would undermine the deterrence objective.
I am of the opinion that a class action is the preferable procedure for resolving the common issue of liability.
I am of the view that the court will be in a position to determine the liability issue after a single trial. The potential issues raised by counsel for the defendants can be adequately dealt with by pre-trial proceedings utilizing affidavit evidence, similar to the simplified procedures rules, by examinations for discovery, when required by the defendants and limited to the narrow issues raised by the defendants, by appropriate case management, or by a combination of these factors.
I am of the opinion that the common issue of punitive or exemplary damages can be dealt with in this class action as a preferable procedure.
Respecting s. 5(1)(e): Would the plaintiffs be appropriate representatives who would:
| (i) | would fairly and adequately represent the interests of the class, |
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| (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 |
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| (iii) | does not have, on the common issues for the class, an interest in conflict with the interests of other class members. |
Counsel for the defendant, Kyprianou, argues that since neither of the plaintiffs is a cross-infected person, they ought not to be considered plaintiffs' representatives of such individuals. He quotes Montgomery J. at Sutherland, supra, at p. 653 O.R., p. 512 D.L.R.:
[The plaintiff] is not a cross-infected person, nor has she cross-infected any other person. I do not believe she is a representative plaintiff even if the other subsections of s. 5 were satisfied. |
I must respectfully disagree with Montgomery J.'s opinion in that respect. To hold otherwise would require a variety of individual plaintiffs to represent each subclass in a proceeding, and if such represented plaintiff failed to establish his or her action, is it suggested that the whole subclass would fail? I think not; this is contrary to the spirit and intent of the Class Proceedings Act, 1992.
It is further submitted by the defendants that the plaintiffs' counsel may have conflicts of interest, and may compromise the position of one subclass of the plaintiffs they are representing, because those persons were not in the specific class represented by the plaintiff. In other words, in distributing the assessment of compensatory damages, if liability and damages are proven, they would not be fair in their dealings.
I reject this position out of hand. The proposed representative plaintiffs are represented by counsel who have a duty to the court and to all of the plaintiffs that will be represented. I am not prepared to find that plaintiffs' counsel would not properly represent their clients.
I am satisfied that the plaintiffs have a workable plan. The plaintiffs' plan proposes:
| (a) | notice be given to the class by way of newspaper advertisements; |
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| (b) | the common issues (i.e., general liability and punitive or exemplary damages) be tried together; |
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| (c) | compensatory damages for all class members except those who experienced very serious illness be determined by an aggregate assessment under s. 24 of the Class Proceedings Act, 1992; |
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| (d) | compensatory damages for class members who experienced very serious illness should be assessed individually, possibly by a mini-hearing process; |
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| (e) | the mini-hearing process could also provide a forum to resolve individual causation issues; and |
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| (f) | with respect to distribution of damages, class members who have mini-hearings would be paid directly, and class members whose claims are assessed on an aggregate basis could have their compensation mailed to them. |
I am confident that the court, with the assistance of counsel, can establish procedures to deal with the trial of the common issues, liability, the quantification of compensatory damages, the quantification of punitive and exemplary damages.
I find that there are no bars to the plaintiffs' application for certification as set out in s. 6 of the Class Proceedings Act, 1992.
I have certified this action in accordance with these reasons and with the modification of a class of uninfected and potentially cross-infected patients.
I may be spoken to on the issue of costs.
| Motion granted. |