Anderson v. Wilson, (1999) 122 O.A.C. 69 (CA)

• Judge: McMurtry, C.J.O., Carthy and Weiler, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: Wednesday July 07, 1999
• Jurisdiction: Ontario
• Citations: (1999), 122 O.A.C. 69 (CA);1999 CanLII 3753 (NS CA);1999 CanLII 3753 (ON CA);44 OR (3d) 673;175 DLR (4th) 409;[1999] CarswellOnt 2073;[1999] OJ No 2494 (QL);122 OAC 69;36 CPC (4th) 17;89 ACWS (3d) 441

Anderson v. Wilson (1999), 122 O.A.C. 69 (CA)

MLB headnote and full text

Temp. Cite: [1999] O.A.C. TBEd. JL.016

Robert Anderson And Deborah Fischer (plaintiffs/appellants/respondents by cross-appeal) v. Ronald H. Wilson, Nicholas Kyprianou, John Doe and Jane Doe

(defendants/respondents/appellants by cross-appeal)

Indexed As:Anderson et al. v. Wilson et al.

Ontario Court of Appeal

McMurtry, C.J.O., Carthy and Weiler, JJ.A.

July 7, 1999.

Summary:

Between 1990 and 1996, an outbreak of Hepatitis B was traced to clinics operated by Wilson and Kyprianou. It was alleged that over 100 patients had contracted the disease after receiving E.E.G. tests. The Ontario Ministry of Health notified 18,000 former patients and their relatives that they should be tested for the presence of the disease. Two former patients who had the Hepatitis B virus commenced an action against Wilson, Kyprianou and members of their staff. They sued in negligence, claiming failure to sterilize. The two former patients applied to have the action certified as a class action. They claimed $95,000,000 compen­satory damages and $10,000,000 punitive and exemplary damages.

The Ontario Court (General Division), in a decision reported at 25 O.T.C. 204, certified the action. However, the court limited the description of those persons who were not infected and not potentially cross-infected. The court ruled that only those who received notices from the Ministry of Health and responded to those notices by attending a hospital or medical clinic for testing, ought to be represented. The defendants appealed.

The Ontario Divisional Court, in a decision reported at 107 O.A.C. 274, allowed the appeal in part. The court struck out the claims of uninfected patients as disclosing no cause of action and removed them and their derivative family law claimants from the class definition. The court amended the class definition of the remaining family law claim­ants (i.e., those whose claims were derivative of infected patients) to make it clear that their claims were purely derivative and did not include claims for nervous shock or apprehension of contracting Hepatitis B. The court redefined the common issues. The plaintiffs and the defendants were granted leave to appeal and cross-appeal.

The Ontario Court of Appeal reinstated the claims of uninfected persons who received the notice and their derivative family law claimants. The court defined their com­mon issues to be lia­bility and puni­tive and exem­p­lary dam­ages. The court upheld the inclu­sion of infected patients and their derivative claimants in the class definition, but restricted the common issue to whether the defendants breached the standard of care for infection control practices.

Practice - Topic 208

Persons who can sue and be sued - Indi­viduals and corporations - Status or stand­ing - Class or representative actions - For damages - [See both Practice - Topic 209.1].

Practice - Topic 209.1

Persons who can sue and be sued - Indi­viduals and corporations - Status or stand­ing - Class actions - Members of class - General - A Hepatitis B outbreak was traced to clinics operated by Wilson and Kyprianou - The Ontario Ministry of Health notified 18,000 former patients and their relatives that they should be tested for the disease - Two former patients who had the Hepatitis B virus sued Wilson, Kyprianou and members of their staff - They applied to have the action certified as a class action - The motions judge ruled that only those who received notices from the Ministry of Health and responded to those notices by attending a hospital or medical clinic for testing, ought to be represented - The Ontario Court of Appeal considered the claims of uninfected pa­tients as a subclass of the whole - The court defined the common issues for unin­fected persons who received the notice, and their derivative family law claimants, to be liability and punitive and exemplary damages - See paragraphs 13 to 23.

Practice - Topic 209.1

Persons who can sue and be sued - Indi­viduals and corporations - Status or stand­ing - Class actions - Members of class - General - A Hepatitis B outbreak was traced to clinics operated by Wilson and Kyprianou - The Ontario Ministry of Health notified 18,000 former patients and their relatives that they should be tested for the disease - Two former patients who had the Hepatitis B virus sued Wilson, Kyprianou and members of their staff - They applied to have the action certified as a class action - The Ontario Court of Ap­peal upheld the inclusion of infected pa­tients and their derivative claimants in the class definition, but restricted the common issue to whether the defendants breached the standard of care for infection control practices - Causation was not a proper common issue where an injured person might or might not be able to relate the infection to the defendants and their clinics - If causation could not be handled as a common issue, then liabil­ity and damages also had to fall - See paragraphs 24 to 38.

Practice - Topic 865

Parties - Striking out parties - Lack of cause of action - A Hepatitis B outbreak was traced to clinics operated by Wilson and Kyprianou - The Ontario Ministry of Health notified 18,000 former patients and their relatives that they should be tested for the disease - Two former patients who had the Hepatitis B virus sued Wilson, Kyprianou and members of their staff - They applied to have the action certified as a class action - The Ontario Divisional Court held that the claims of uninfected patients should be struck out as disclosing no cause of action - The Ontario Court of Appeal disagreed - Given the uncertain state of the law on tort relief for nervous shock (mental distress), it was not "plain and obvious" that the claim would fail - See paragraphs 13 to 19.

Torts - Topic 8711

Duty of care - Particular relationships - Claims for nervous shock - Negligent infliction of - [See Practice - Topic 865].

Cases Noticed:

White et al. v. Chief Constable of South Yorkshire et al. (1998), 234 N.R. 121 (H.L.), refd to. [para. 13, footnote 1].

Mason v. Westside Cemeteries Ltd. (1996), 135 D.L.R.(4th) 361 (Ont. Gen. Div.), refd to. [para. 13].

Vanek v. Great Atlantic & Pacific Co. of Canada Ltd. et al. (1997), 39 O.T.C. 54 (Gen. Div.), refd to. [para. 13].

Nespolon v. Alford et al. (1998), 110 O.A.C. 108; 161 D.L.R.(4th) 646 (C.A.), refd to. [para. 14].

Hunt v. T & N plc et al. (1990), 117 N.R. 321; 43 C.P.C.(2d) 105 (S.C.C.), refd to. [para. 16].

Chippewas of Sarnia Indian Band v. Canada (Attorney General) et al. (1996), 9 O.T.C. 32; 29 O.R.(3d) 549 (Gen. Div.), refd to. [para. 16].

Snell v. Farrell (1990), 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289 (S.C.C.), refd to. [para. 30].

Bendall et al. v. McGhan Medical Corp. et al. (1993), 14 O.R.(3d) 734 (Gen. Div.), dist. [para. 31, footnote 3].

Harrington v. Dow Corning Corp. (1996), 48 C.P.C.(3d) 28 (B.C.S.C.), dist. [para. 31, footnote 3].

Naken et al. v. General Motors of Canada Ltd., [1983] 1 S.C.R. 72; 46 N.R. 139, refd to. [para. 31, footnote 4].

Abdool v. Anaheim Management Ltd. (1995), 78 O.A.C. 377; 21 O.R.(3d) 453 (Div. Ct.), refd to. [para. 31, footnote 5].

Campbell et al. v. Flexwatt Corp. et al. (1998), 105 B.C.A.C. 158; 171 W.A.C. 158; 15 C.P.C.(4th) 1 (C.A.), refd to. [para. 35].

Counsel:

Michael McGowan and Dorothy H. Fong, for the appellants;

Mary M. Thomson and David E. Leonard, for the respondent, Ronald H. Wilson;

Frank G. Csathy, for the respondent, Nicholas Kyprianou.

This appeal was heard on February 2-4, 1999, by McMurtry, C.J.O., Carthy and Weiler, JJ.A., of the Ontario Court of Appeal. Carthy, J.A., delivered the following decision for the Court of Appeal on July 7, 1999.