Civil procedure — Class actions — Certification — Common issues — Preferable procedure — Representative plaintiff — Defendants operating clinics for administration of electroencephalogram tests — Patients alleged to have been exposed to carrier of Hepatitis B — Class action certified — Class comprised infected patients, cross-infected patients and Family Law Act claimants — Uninfected patients who were alleged to suffer nervous shock as a result of notification of possible infection not forming part of class certified — No cause of action for nervous shock in absence of recognizable psychological or psychiatric illness having occurred as result of shock — Class Proceedings Act, 1992, S.O. 1992, c. 6 — Family Law Act, R.S.O. 1990, c. F.3.

   Between July of 1989 and 1996, the defendants operated five clinics for the administration of electroencephalogram ("EEG") tests. It was alleged that, as a result of the administration of EEG tests at the defendants' clinics, the plaintiff A had become a carrier of Hepatitis B and the plaintiff F had become severely ill with the disease and nearly died. The plaintiffs commenced an action that was certified by the order of Jenkins J. as a class proceeding against the defendants for $95 million in damages on behalf of former client patients. It was alleged that the defendants had been negligent in the administration of the EEG tests. The plaintiffs asserted that the rate of Hepatitis B among clinic patients was at least 500 times greater than the rate in the general population, that there was evidence to link the specific viral strain of infected patients to the viral strain of a clinic employee who was known to be a carrier of the disease and who administered the tests.

   The class certified by the order of Jenkins J. consisted of: (1) infected patients; (2) cross-infected patients, that is, persons contracting Hepatitis B from infected patients; (3) uninfected patients who had been notified of their possible infection; and (4) Family Law Act claimants.

   Leave having been granted, the defendants appealed the certification order and argued that the motions judge had erred (1) in holding that there were common issues of liability and of punitive and exemplary damages; (2) in finding that the statement of claim disclosed a cause of action for nervous shock; (3) in his analysis of the preferable procedure; (4) in failing to define subclasses; and (5) in finding that the proposed representative plaintiffs were properly representative.

   Held, the appeal should be allowed in part and the order of the motions judge should be amended.

   The motions judge did not err in holding that there were common issues, but he did err in his description of those issues. The allegations of the plaintiffs of the greater incidence of Hepatitis B in clinic patients, if proved, provided a strong substratum of common issues. In order to proceed with a class action, it is not necessary that the common issues in themselves determine liability; they need only be issues of fact or law that move the litigation forward. Notwithstanding the argument of the defendants, the certification of the class action in respect of the infected patients would not reverse the onus of proof. Relatively simple elements could be added to the litigation plan to ensure that the defendants have a fair opportunity to test the possibility that any one or more of the infected clinic patients contracted Hepatitis B elsewhere. "Liability and punitive and exemplary damages", however, did not describe with sufficient precision the common issues. The common issues were: Did the defendants breach the standard of care for infection control practices? Did the clinics provide a common source of infection for those patients who contracted Hepatitis B? 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? The individual issues could be addressed through a litigation plan.

   The claim of the class of uninfected patients should be struck out as disclosing no cause of action. Their claim was based on fear for their health, mental distress and nervous shock after they had been notified and until they were advised that tests for the disease were negative. However, there was no allegation or evidence that any of the uninfected patients suffered a recognizable psychological or psychiatric illness as a result of receiving the notice or taking the test, and damages for mental shock are not recoverable in the absence of this element. The definition of the family law claimants should also be amended to make it clear that their claims did not include claims for nervous shock.

   The motions judge did not err in finding that certification was the preferable procedure for resolving the dispute. If the plaintiffs can prove what they say they can prove, there would be a great increase in judicial economy and access to justice. The crucial issue of negligence and the issue of the common source of infection would be disposed of and the crucial issue of causal connection would be very largely disposed of, subject to the individual determinations addressed in the litigation plan. The mere fact that it might be necessary to determine a number of individual issues did not destroy the advantage of a class action.

   The motions judge did not err in finding that the presence of two or more of the grounds cited in s. 6 of the Class Proceedings Act, 1992, which provides that certain matters are not a bar to certification, ought not to be factored in the analysis of the preferable procedure under s. 5(1)(d). In this case, the consideration of the factors would not have changed the outcome. The defendants relied on the factors that separate damages would be required, that each patient had separate contacts with the defendant Dr. W., and that the identity and number of class members is not known. These factors were not individually or cumulatively significant to outweigh the degree of judicial economy and increased access to justice provided by the certification of the class action.

   The motions judge did not err in failing to define subclasses. While the defendants argued that the family law claimants, with their typically smaller claims, might be prejudiced by a settlement and should have a subclass, this problem was hypothetical. Settlements commonly take place involving both direct and derivative claims and a conflict was not apparent at this point. Further, while the defendants argued that there was a conflict in the class as constituted because infected patients might be sued by cross-infected patients for negligence or deliberate infection, there was no indication of the degree of the potential for such claims. The issue was largely hypothetical and, if it emerged, further motions could be made to the case management judge.

   There was no error in the motions judge's finding that the representative plaintiffs could properly represent the proposed class. It is not necessary for the representative plaintiffs to share every characteristic of every member of the class or even to be typical of the class.

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.); Amchem Products v. Windsor, U.S.S.C., June 25, 1997; 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] B.C.J. No. 2477 (C.A.); Dube (Litigation Guardian of) v. Penlon Ltd. (1994), 21 C.C.L.T. (2d) 268 (Ont. Gen. Div.); Duwyn v. Kaprielian (1978), 22 O.R. (2d) 736, 94 D.L.R. (3d) 424, 7 C.C.L.T. 121 (C.A.); 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, 40 C.P.C. (3d) 245, 127 D.L.R. (4th) 552 (Gen. Div.); Pittman Estate v. Bain (1994), 112 D.L.R. (4th) 257, 19 C.C.L.T. (2d) 1 (Ont. Gen. Div.) [supp. reasons 112 D.L.R. (4th) 482 (Ont. Gen. Div.); 112 D.L.R. (4th) 494, 35 C.P.C. (3d) 55 (Ont. Gen. Div.); 35 C.P.C. (3d) 67 (Ont. Gen. Div.)]; Spitzfaden v. Dow Corning (Dist. Ct., December 1, 1997); 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.); Tiemstra v. Insurance Corp. of British Columbia (1997), 38 B.C.L.R. (3d) 377, 149 D.L.R. (4th) 419 (B.C.C.A.); Walker v. Liggett Group, U.S. Dist. Ct., W. Virg. So. Dist., Haded J. (August 5, 1997); Walker v. York-Finch Hospital, [1997] O.J. No. 4017 (Gen. Div.)

Statutes referred to

Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 5, 6 Family Law Act, R.S.O. 1990, c. F.3, s. 61

Authorities referred to

Linden, A.M., Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997), pp. 389-93
Ontario Law Reform Commission, Report on Class Actions, vol. 2, p. 373

   APPEAL with leave from an order of Jenkins J. (1997), 32 O.R. (3d) 400 (Gen. Div.), certifying an action as a class proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6.

   Colin L. Campbell, Q.C., and David Leonard, for appellant, Ronald H. Wilson.
   Francis G. Csathy, for appellant, Nicholas Kyprianou.
   Michael L. McGowan, Michael F. Head and Dorothy H. Fong, for respondents.

   The judgment of the court was delivered by

   CAMPBELL J.: —

The Appeal

   This is an appeal by the defendants, pursuant to leave to appeal granted by McRae J., from the order of Jenkins J. [reported 32 O.R. (3d) 400] in Whitby certifying this action as a class proceeding under the Class Proceedings Act, 1992, S.O. 1992, c. 6 ("C.P.A.").

   The defendants, Dr. Ronald H. Wilson and an electroneurodiagnostic technician, Nicholas Kyprianou, operated in partnership five clinics for the administration of electroencephalogram tests ("EEGs") in Scarborough, North York, Pickering and Ajax between July of 1989 and February of 1996.

   The claim against them for $95 million in compensatory damages and $10 million in punitive and exemplary damages is brought on behalf of former clinic patients by reason of their involvement in one of Canada's largest Hepatitis B outbreaks, as a result of the alleged negligence of Dr. Wilson and Mr. Kyprianou in the operation of the clinics and the administration of EEGs.

Overview of the Facts

   There is little dispute about the underlying facts. An interim report from the public health authorities was considered by the motions judge and the final report was admitted as fresh evidence on appeal.

   In early 1996 a public health inspector identified a possible link between the defendants' clinics and an outbreak of Hepatitis B. The public health authorities in North York, Scarborough, and Durham and York Regions sent information packages to over 18,000 patients who had EEGs in the clinics over the six-year period, notifying them that there was a risk they may have contracted Hepatitis B and that they should be tested. About 11,000 patients responded to the mailout after being tested, and it is possible that others were tested but did not respond to the mailout.

   Seventy-five former clinic patients (the "outbreak" cases) are known to have come down with Hepatitis B within nine months of their EEG. Three became so ill that they required hospitalization. Because there are no symptoms in 30 per cent to 50 per cent of the cases the actual number of outbreak cases is more likely to be in the range of 150 to 250 people.

   Another group of 1,124 former clinic patients (the "suspect" cases) who went for testing showed some serological evidence of past infection. Although this past infection was resolved in 91 per cent of the suspect cases, 9 per cent or 87 of them were Hepatitis B carriers. Of all the 99 Hepatitis B carriers identified in the public health investigation, 27 persons were known to be chronic Hepatitis B carriers prior to having their EEG.

   Hepatitis B is a viral infection that affects the liver. Transmitted through blood and bodily fluids, it can cause serious illness or it can, in up to one-half of the cases, be completely asymptomatic. In its acute phase (usually 60 to 90 days from infection) it can cause fatigue, lethargy, loss of appetite, jaundice, dark urine, and malaise. Ninety per cent of those who go through the acute phase have no remaining after-effects although they may become carriers of the disease.

   Deborah Fischer, one of the proposed representative plaintiffs is a 45-year-old bank manager, married, with two children. She went to the North York clinic for an EEG on March 23, 1995. She became severely ill with Hepatitis B and nearly died twice. She was hospitalized for about ten days and off work for about ten weeks.

   Robert Anderson, the other proposed representative plaintiff, is 57 years old, not presently employed, and married with three children. He went to the Ajax clinic on June 29, 1993 for an EEG. He became a carrier of the Hepatitis B virus and is expected to remain an infection carrier for the rest of his life.

The Issues

The Certified Class

   The class certified by Jenkins J. is:

Common Issues

   Did the motions judge err in holding there were common issues and in defining the common issues as liability and punitive and exemplary damages? (C.P.A., s. 5(1)(c)).

   The scheme of the CPA is to try common issues first and then, if the plaintiff gets the appropriate findings, to proceed to the individual issues. Montgomery J. said in Sutherland v. Canadian Red Cross Society (1994), 17 O.R. (3d) 645 at p. 650, 112 D.L.R. (4th) 504 at p. 509 (Gen. Div.):

   An absence of appropriate common issues will defeat a proposed class proceeding. In Sutherland there was no appropriate common issue because the receipt of blood products was the least common means by which HIV was transmitted, because there were different kinds and sources of blood and blood products involved in the different treatment modalities, and because there were so many different doctors, hospitals, and laboratories and clinical settings involved in the treatment of different members of the proposed plaintiff class.

   The appellants say this case is governed by the same principle. They point to the blood indicators of one prospective plaintiff and say he likely contracted Hepatitis B from a source other than the clinics. They say this demonstrates that every case must be examined individually on the basis of serological evidence specific to each individual patient in order to rule out the possibility that the Hepatitis B was contracted from some other risk factors such as travel to certain countries, blood transfusions, sexual partners, or intravenous drug use. The defendants also say that different cases may produce different results because the standard of care for proper infection control practices changed between 1990 and 1996, because there were some differences in the types of tests administered to different patients, and because a different kind of sterilization procedure for the EEG needles was used during a brief period from November 1995 to January 1996.

   The proposed plaintiffs however assert that the rate of Hepatitis B among clinic patients is at least 500 times greater than the rate of Hepatitis B in the general population, that there is evidence of poor infection control practices in the clinics, and that there is evidence to link the specific viral strain of infected patients to the specific viral strain of a clinic employee, now known to be a particularly infectious Hepatitis B carrier, who administered the tests,

   These allegations, if proved, provide a strong substratum of common issues in respect of the infected patients. If the plaintiffs can demonstrate a common breach of the standard of care for infection control practices, a 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 the bulk of the fact-finding has been done for all the cases subject to a relatively simple exploration of individual details and potential differences.

   These potential differences, which may or may not affect liability in individual cases, are overwhelmed by the central importance, both factually and legally, of the common issues.

   There is a common single clinical management, a basically common single treatment modality, a common alleged breach of the standard of infection control, a common single alleged infection carrier, and a common body of epidemiological evidence which if proved goes very far towards proof of causation.

   This is not a case like Spitzfaden v. Dow Corning (Dist. Ct., December 1, 1997) where individual questions regarding the lifestyle and medical condition of each breast implant patient were paramount to causation.

   It is not necessary, in order to proceed with a class action, to demonstrate that the common issues will in themselves determine liability. The common issues need only be issues of fact or law that move the litigation forward: Campbell v. Flexwatt Corp., [1997] B.C.J. No. 2477 (C.A.), per Cumming J.A. at para. 53.

   It would defeat the purpose of the class proceedings legislation, having regard to the strong and potentially determinative common features of the claims of those infected with Hepatitis B in this mass outbreak associated with the defendants' clinics, to deny class certification to those actually infected.

   The appellant says that certifying this class action will reverse the onus of proof and require the defendants to prove that they did not cause the infection.

   But if the plaintiffs can establish a common breach of the standard of care for infection control practices, a common a 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.

   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.

   Individual differences can be explored relatively simply by taking into consideration, depending on the date of administration of each EEG test, any significant differences in EEG test and infection control practices or standards of care. These issues do not appear particularly significant. Needle electrodes were used in most cases and there was very little change in the infection control procedures during the relevant time. It was only towards the very end of the relevant time, in the late fall of 1995, that new infection control practices were introduced to sterilize EEG electrodes with a steam autoclave and a glutaraldehyde solution.

   The possibility that any of the infected patients were infected elsewhere can be explored simply by testing for serological markers and by limited discovery of their medical history and any personal Hepatitis B risk factors.

   Although the defendants say that there was a change in the standard of care for infection control practices during the six-year period in question, it does not appear on the evidence now available that there is enough difference to prevent the class proceeding from going forward at this time on behalf of all infected patients. If it turns out later that there was a change in the standard of care at point in time X that could affect liability, it would be possible then to divide the class between those treated before point in time X and those treated later. That potential issue is no impediment to proceeding at this time with a class action on behalf of all the infected patients.

   Although there are sufficient common issues to justify a class action in this case, liability and damages are issues in every case. "Liability and punitive and exemplary damages" do not describe with sufficient precision what the common issues actually are in this case. The common issues of fact and of mixed fact and law, in respect of the infected people, are these:

The individual issues can be addressed through an appropriate litigation plan.

Nervous Shock

   By far the largest group of potential plaintiffs are those who did not get infected with Hepatitis B but took blood tests after receiving a notice from the health department that they may have been exposed to risk and should be tested. About 1,800 notification packages were mailed out, a number were returned by the postal authorities and a further number were probably not received by the addressees. It appears likely that the notification was received by 10,000 to 18,000 people. It must be remembered that the respondents want to include in the claim all of the living parents, grandparents, children, grandchildren, siblings and spouses of everyone who got the notice and tested negative.

   The claim of the uninfected patients who did not contract Hepatitis B or become ill is based on fear for their health, mental distress and nervous shock after they got the notice and before they got their negative test results. There is no allegation or evidence that any of the uninfected patients suffered a recognizable psychological or psychiatric illness as a result of receiving the notice or taking the test. Noticeably absent from these proceedings is any proposed representative plaintiff who got the notice followed by a negative test, and noticeably absent is any evidence to give the court a concrete sense of what might be involved in the litigation of the claims of such potential class members.

   In the absence of a diagnosed psychiatric or psychological illness, the law does not award damages for mental distress or nervous shock standing alone: see, generally, Dube (Litigation Guardian of) v. Penlon Ltd. (1994), 21 C.C.L.T. (2d) 268 (Ont. Gen. Div.), per Zuber J. at pp. 299-302, A.M. Linden, Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997), pp. 389-93, Duwyn v. Kaprielian (1978), 22 O.R. (2d) 736 at p. 755, 7 C.C.L.T. 121 at pp. 142-43, per Morden J.A.

   As Zuber J. pointed out, the law limits claims for nervous shock on policy grounds, having partly to do with the potential for such claims to get out of control [at p. 300]:

   The principle that damages are not recoverable for mental distress or nervous shock standing alone in the absence of a diagnosed psychiatric or psychological illness, was questioned by a trial judge in Mason v. Westside Cemeteries Ltd. (1996), 135 D.L.R. (4th) 361, 29 C.C.L.T. (2d) 125 (Ont. Gen. Div.), where a son recovered $1,000 from the cemetery that lost his father's ashes. Apart from that one trial judgment it is the current state of the law in Ontario that fear and nervous shock do not, in the absence of a diagnosed psychological or psychiatric illness, support claims for damages.

   It may be that the law, when ripe for change, will permit such claims in the future. But that kind of judicial legislation should take place incrementally on a case-by-case basis. Judge-made law should evolve in a way that permits the experience of each case to be considered in the next case until the correct path of the law becomes clear. This case-by-case experiential evolution cannot take place in a mass class nervous shock proceeding with over 10,000 claimants. There are enough complicated issues to manage in this case already without turning it into an experimental laboratory for fundamental change in the law of tort.

   The claims on behalf of uninfected patients are struck out as disclosing no cause of action. The uninfected patients and their family law derivative claimants are removed from the class certification and the definition of the family law claimants is amended to make it clear that their claims are purely derivative and do not include claims for nervous shock or apprehension of contracting Hepatitis B.

Preferable Procedure

   Did the motions judge err in finding that certifying this action is the preferable procedure for resolving this dispute? (C.P.A., s. 5(1)(d)).

   The appellants say that medical torts are generally inappropriate for class certification and that individual trials are the best way to sort out the issues of fact and law.

   The appellants rely on the statement of Donald J.A. in Tiemstra v. Insurance Corp. of British Columbia, B.C.C.A., July 7, 1997 [now reported 38 B.C.L.R. (3d) 377, 149 D.L.R. (4th) 419] at p. 5, refusing certification for a class of insured motorists denied no-fault benefits where vehicle damage was minimal, even though the claimant may have received medical treatment [p. 425 D.L.R.]:

   In that case the best the applicants could get would be a declaration that each claim should be assessed on its own merits, and the members of the class would still face the same cost-benefit analysis that deterred them in the first place; would it be worth the trouble and expense.

   That is not the case here. If the plaintiffs can prove what they say they can prove, there will be a great increase in judicial economy and access to justice. The crucial issues of negligence and common source of infection will be disposed of and the crucial issue of causal connection will be very largely disposed of, subject to the individual determinations referred to above and addressed in the litigation plan.

   The mere fact that it might be necessary to determine a number of individual issues does not destroy the advantage of a class action.

   As Cumming J.A. pointed out in Campbell v. Flexwatt, supra, at para. 53, a class proceeding does not have to be the preferable procedure for resolving the whole controversy, but merely the preferable procedure for resolving the common issues.

   The judicial experience of this court with individual trials in tainted blood cases suggests that individual trials are not always the best way to deal with mass medical catastrophes. The problems of proceeding with separate trials in cases of common medical catastrophe are referred to by Lang J. in Pittman Estate v. Bain (1994), 19 C.C.L.T. (2d) 1 at p. 202, 112 D.L.R. (4th) 257 (Ont. Gen. Div.), and Borins J. in Walker v. York-Finch Hospital, [1997] O.J. No. 4017 (Gen. Div.) at para. 203ff. As Borins J. said at para. 212:

A class action like this is an innovative procedure of the kind suggested by Borins J.

   For the reasons given above, the common issues are so central that a class action, for reasons of judicial economy and increased access to the courts, is superior to other available methods for the fair and efficient resolution of the controversy. Although individual tests and limited discovery might be necessary the advantages of trying the common issues together, in order to achieve judicial economy and greater access to justice, outweigh any potential problems caused by the individual issues.

Presence of Grounds in C.P.A., s. 5(1)(d)

   Did the motions judge err in finding that the presence of two or more of the grounds cited in s. 6 of the Class Proceedings Act, 1992 ought not to be factored into the analysis of the preferable procedure under s. 5(1)(d)?

   Section 5(1)(d) provides that the court shall certify a class proceeding if a class proceeding would be the preferable procedure for the resolution of the common issues.

   Section 6 provides:

   The motions judge agreed with the obiter dictum of Brockenshire J. in Nantais v. Telectronics Proprietary (Canada) Ltd. (1995), 25 O.R. (3d) 331, 40 C.P.C. (3d) 245 (Gen. Div.), that "any one of the following grounds" should be read as "any one or more of the following grounds" and disagreed with the following obiter dictum of Moldaver J. in Abdool v. Anaheim Management Ltd. (1995), 21 O.R. (3d) 453 at p. 473, 31 C.P.C. (3d) 197:

(Emphasis in original)

   Each case will turn on its own facts and not on abstract arguments about the interpretation of s. 6. Even if there is a conflict between these two obiter dicta, it makes no difference on the facts of this case.

   The three factors in s. 6 relied on by the defendants are the fact that separate damage assessments are required, that each patient had a separate contract with Dr. Wilson, and that the identity and number of class members is not known, particularly in respect of the cross-infected and family law claimants.

   The fact of separate contracts makes no difference.

   The need for some separate assessment of damages is inherent in many class actions and the statute provides machinery to provide separate assessments to the extent they are necessary.

   So far as the identity and number of class members is concerned, the class is defined in a way that is capable of later determination and, as the Ontario Law Reform Commission said in its Report on Class Actions, vol. 2, p. 373:

   Even if there was an error in the interpretation of s. 6 it could not affect the result because none of the three factors present in this case, individually or cumulatively, are significant enough to outweigh the degree of judicial economy and increased access to justice provided by certification as a class action.

Subclasses and Representative Plaintiffs

   Did the motions judge err in failing to define subclasses? (C.P.A., s. 5(2))

   Section 5(2) provides:

   The two potential subgroups are the cross-infected patients and the family law claimants share the common issues noted above.

   The family law claimants and the infected patients have the same liability issues. The defendants say that the family law claims will be much smaller than those of the infected patients and that in any settlement of the action the smaller family law claims may be prejudiced for the benefit of the claims of the infected patients.

   The problem, at this stage, appears hypothetical. Most family law damage claims can be settled or assessed on the basis of relatively small conventional amounts. Settlements take place every day, without any suggestion of conflict or improper compromise, of actions that involve both direct claims and derivative family law claims.

   There will often in class actions be a range or continuum of damages between members of the same class. That does not in itself constitute any bar to certification.

   It is not apparent at this stage that the family law claimants, to paraphrase s. 6, share common issues which are not shared by all the class members or that they have, on their common issues, an interest in conflict with other class members.

   A number of the cross-infected patients and infected patients may have potential conflicts of interest because some cross-infected patients might have claims against the infected patients for negligent or deliberate infection.

   There is however no indication of the degree of the potential for claims by cross-infected patients against infected patients. It is not apparent at this stage that the cross-infected patients, to paraphrase s. 6, share common issues which are not shared by all the class members or that they have, on their common issues, an interest in conflict with the interests of the infected patients or the cross-infected patients.

   This issue appears largely hypothetical at this state. If it becomes an issue during the course of the proceedings, or if the present litigation plan proves inadequate to address any potential problem arising from this issue, further motions may be made to the case management judge.

   This is not a case like Amchem Products v. Windsor, U.S.S.C., June 25, 1997, where there was a crystallized conflict of interest, in the proposed settlement of asbestos claims, between sick claimants who needed generous immediate payments and "exposure only" claimants who might never get sick.

   In this case, anyone who will get sick from Hepatitis is sick already. Any conflict of interest between class members in this case at this stage is hypothetical at best.

   Any emerging conflicts can be dealt with as they arise. As Montgomery J. said 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.):

   Certification has been denied, on the basis of Amchem, in a number of later cases. Walker v. Liggett Group (U.S. Dist. Ct., Southern Division of West Virginia, August 5, 1997), involved a proposed settlement and certification in a tobacco case of a class of tens of millions of smokers, former smokers, and people exposed to second-hand smoke. The proposed class involved the same conflict of interest that prevented certification in Amchem -- the conflict between the people who were seriously ill and those who might or might not get ill in the future. In Walker v. Liggett the proposed class was so huge and its individual members so different that the court identified other conflicts of interest. Chief Judge Charles H. Haded II noted at pp. 14-15:

   A number of other American cases, which followed Amchem, on similar grounds and grounds involving American concepts of class typicality and predominance of common issues, have little if any relevance to this case under our very different Ontario statutory regime.

   There was no error in failing to define subclasses at this stage of the proceedings.

Representative Plaintiffs

   Did the motions judge err in finding that the proposed representative plaintiffs are properly representative of the proposed class (C.P.A., 5(1)(e))?

   For the reasons noted above, subclasses are not required for the family law or cross-infected claimants.

   It is not necessary for the representative plaintiffs to share every characteristic of every member of the class or even to be typical of the class. Although the representative plaintiffs are infected claimants, there is at this stage no apparent conflict of interest between them and other members of the class and no error in the finding that they properly represent the proposed class.

Potential Conflicts

   Although the appellants have raised serious issues in relation to potential conflicts of interest between the family law claimants, the infected claimants, and the cross-infected claimants, and in relation to the representative plaintiffs the potential conflicts appear largely hypothetical at this stage.

   The class action procedures are flexible enough that there will be ample scope down the line to create subclasses with new representative plaintiffs, should the need arise.

Conclusion

   For these reasons the appeal is allowed in part and the order of the motions judge is amended:

   The appeal is dismissed in all other respects.

   The parties may exchange and file written submissions on costs.