Some 6,800 patients between 2002 to 2011 were exposed to the risk
The Ontario Superior Court of Justice has refused to allow a class action to proceed against an Ottawa clinic that exposed its patients to a low risk of hepatitis and HIV.
In McGee v. Dr. Farazil, 2023 ONSC 3671, Dr. Christine Farazli operates an endoscopy clinic in Ottawa inspected by the public health authorities. Following the regulatory check, officers found lapses in the sterilization protocols at the clinic, exposing some 6,800 patients to a very low risk of Hepatitis B, Hepatitis C, or HIV. The health authorities sent a letter to all the patients who had undergone an endoscopy at the clinic between 2002 and 2011. The letter advised the patients that blood testing was available to assess their viral status. The Ottawa Public Health (OPH) eventually confirmed that there was "no transmission of Hepatitis B or C or HIV…within the Clinic where the lapse occurred."
Fern McGee was one of the patients who received a notification letter. She commenced a class action seeking compensation for exposure to an enhanced risk of infection and for the shock, trauma, and inconvenience she experienced when she received the notification letter and the following testing. A judge certified her class action, allowing it to proceed.
The defendants appealed, arguing that an action for increased risk cannot be certified without proof that the defendants' conduct had caused an actual infection. The defendants alleged that such evidence is unavailable and there is no possibility it will become available. The court noted that as of the date of the certification motion, no one who was found to be infected in the testing could establish that the lapses at the clinic caused their infection.
The plaintiff presented an expert who conceded that the passage of time since the infection control lapses made it impossible to link any infections to the clinic. While the expert believed that the clinic's lapses caused the patients to be infected, he agreed that no method is available to establish such a link.
The defendants asserted that the plaintiff's claim is one for psychological harm and economic losses based on an increased risk of infection in a situation where there is no possibility of proving that the risk has ever materialized or will ever materialize. Based on the case law, the defendants claimed that there is no cause of action for damages for exposure to increased risk of harm. Consequently, they argued that McGee's claim should not have been certified.
The Ontario Superior Court of Justice noted that the defendants conceded that the cause of action criterion was satisfied. However, as the court explained, this does not mean that they acknowledged that there was some factual basis to support the other aspects of the test for certification, including the requirement that the class members' claims raised common issues. The court acknowledged the expert evidence confirming that while the defendants had caused infections, no methodology was available to prove this was the case.
The court stressed that without establishing by evidence that the defendants' action had caused or would cause infections, the plaintiff's claim becomes one for damages caused by the speculative notion that she was at risk of increased infection.
The court cited jurisprudence, stating that a claim for economic losses that arise in response to an increased risk of harm is not sustainable as there is no cause of action for an increased risk of harm. The court further said that any anxiety experienced as a result of receiving notices from a governmental authority about an increased risk of a medical condition would be unlikely to pass the threshold for compensation set out by the Supreme Court of Canada. The court emphasized that the law does not compensate for the anxiety, upset and fear people often encounter. The psychological injury must rise to severe trauma or illness level to be compensable. The court held that the anxiety caused by undergoing the medical tests, in this case, would unlikely rise to this level. Finally, the court said that the quantum of economic damages might not pass the de minimus threshold set in case law.
The court ultimately concluded that the certification judge made an error in certifying a common issue based on a claim for increased risk of harm. Consequently, the court set aside the certification order.