Bruce Estate et al. v. Toderovich et al., 2010 ABQB 709

• Judge: Macklin, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: October 12, 2010
• Citations: 2010 ABQB 709;(2010), 497 A.R. 256 (QB)

Bruce Estate v. Toderovich (2010), 497 A.R. 256 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. NO.098

Hazel Bruce, Executor of the Estate of Robert Edward Bruce, Deceased, on Behalf of the Estate of Robert Edward Bruce, Deceased, and on Behalf of and for the Benefit of Hazel Bruce, Jackie Farion, Sharon Gerlach, Kathy Pozerniuk, Heather Zakordinoski, Barry Bruce and Connie Marcincoski (plaintiffs) v. Eugene Toderovich, Mbongani Kabila, East Central Health and St. Joseph's General Hospital (defendants)

(0703 00431; 2010 ABQB 709)

Indexed As: Bruce Estate et al. v. Toderovich et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Macklin, J.

November 15, 2010.

Summary:

The plaintiffs brought an action alleging that the defendants East Central Health (ECH) and Lakeland Regional Health Authority (LRHA) were negligent in the maintenance and operation of the defendant St. Joseph's General Hospital (SJGH), and in the manner that medical treatments were provided to patients, putting them at risk of exposure to infectious diseases including Methicillin-Resistant Staphylococcus aureus (MRSA), the Hepatitus B virus (HBV), the Hepatitis C virus (HCV) and the Human immunodeficiency virus (HIV). The claim also alleged inadequate handling of cleaning and disinfection/sterilization of equipment in the Central Sterilization Room (CSR) of the SJGH during the class period, resulting in transmission to certain individuals of blood-borne diseases, namely HBV, HCV and HIV, and screening/testing of many other individuals. The plaintiffs sought to certify their action as a class action.

The Alberta Court of Queen's Bench held that only the CSR infected patients fulfilled the requirement for certification. The application was otherwise dismissed.

Editor's note: for a case dealing with procedural issues between these parties, see 483 A.R. 322.

Hospitals - Topic 2044

Liability of hospitals - To patients - General - Duty of care - [See first Practice - Topic 209.3 ].

Hospitals - Topic 2061

Liability of hospitals - To patients - Breach of contract - General - [See first Practice - Topic 209.3 ].

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - The plaintiffs brought an action alleging that the defendants East Central Health (ECH) and Lakeland Regional Health Authority (LRHA) were negligent in the maintenance and operation of the defendant St. Joseph's General Hospital (SJGH), and in the manner that medical treatments were provided to patients, putting them at risk of exposure to infectious diseases including Methicillin-Resistant Staphylococcus aureus (MRSA), the Hepatitus B virus (HBV), the Hepatitis C virus (HCV) and the Human immunodeficiency virus (HIV) - The claim also alleged inadequate handling of cleaning and disinfection/sterilization of equipment in the Central Sterilization Room (CSR) of the SJGH during the class period, resulting in transmission to certain individuals of blood-borne diseases, namely HBV, HCV and HIV, and screening/testing of many other individuals - The plaintiffs sought to certify their action as a class action - At issue was, inter alia, whether the pleadings disclosed a cause of action (Class Proceedings Act, s. 5(1)(a)) - The Alberta Court of Queen's Bench held that that former patients who might have been infected with MRSA had a potential cause of action in negligence against some or all of the defendants - A hospital had a duty to establish appropriate systems and protocols to promote patient safety and provide good patient care, to protect patients from infection and to assure that aseptic procedures were followed - Further, it was not plain and obvious that these individuals did not have a potential breach of contract cause of action - The reach of the proposed class in relation to the CSR was broader, extending first to former patients of SJGH who had a procedure that penetrated the skin or mucous membrane involving use of instruments sterilized in the CSR and who developed an acute bacterial infection within two weeks - As in the case of former patients infected with MRSA, these infected former patients also had potential claims in both negligence and contract - There were two remaining groups of proposed class members: 1) former patients who were notified for testing in relation to CSR instruments but who did not develop an acute bacterial infection within two weeks and 2) others notified for testing due to potential exposure to blood-borne diseases from contact with CSR exposed patients - With respect to the first group, it was impossible for the plaintiffs to succeed on a claim that breach of a duty of care to prevent infection resulted in harm of any kind to the uninfected CSR patients - It was plain and obvious that the pleadings did not disclose a viable cause of action on the part of the uninfected CSR patients - With respect to the second group, presuming it to be true that the secondarily exposed persons became infected in relation to the alleged CSR problem, it was not plain and obvious that they did not have a potential cause of action - In summary, those potential members of the proposed class who satisfied the first cause of action requirement were the MRSA infected patients and the CSR infected patients including the secondarily exposed persons - See paragraphs 22 to 44.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - The plaintiffs brought an action alleging that the defendants East Central Health (ECH) and Lakeland Regional Health Authority (LRHA) were negligent in the maintenance and operation of the defendant St. Joseph's General Hospital (SJGH), and in the manner that medical treatments were provided to patients, putting them at risk of exposure to infectious diseases including Methicillin-Resistant Staphylococcus aureus (MRSA), the Hepatitus B virus (HBV), the Hepatitis C virus (HCV) and the Human immunodeficiency virus (HIV) - The claim also alleged inadequate handling of cleaning and disinfection/sterilization of equipment in the Central Sterilization Room (CSR) of the SJGH during the class period, resulting in transmission to certain individuals of blood-borne diseases, namely HBV, HCV and HIV, and screening/testing of many other individuals - The plaintiffs sought to certify their action as a class action - At issue was, inter alia, whether there was an identifiable class of two or more persons - The Alberta Court of Queen's Bench held that there was an identifiable class - See paragraphs 45 to 56.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - The plaintiffs brought an action alleging that the defendants East Central Health (ECH) and Lakeland Regional Health Authority (LRHA) were negligent in the maintenance and operation of the defendant St. Joseph's General Hospital (SJGH), and in the manner that medical treatments were provided to patients, putting them at risk of exposure to infectious diseases including Methicillin-Resistant Staphylococcus aureus (MRSA), the Hepatitus B virus (HBV), the Hepatitis C virus (HCV) and the Human immunodeficiency virus (HIV) - The claim also alleged inadequate handling of cleaning and disinfection/sterilization of equipment in the Central Sterilization Room (CSR) of the SJGH during the class period, resulting in transmission to certain individuals of blood-borne diseases, namely HBV, HCV and HIV, and screening/testing of many other individuals - The plaintiffs sought to certify their action as a class action - At issue was, inter alia, whether the claims of the prospective class members raised a common issue - The Alberta Court of Queen's Bench found that there were common issues for the infected members of each of the MRSA and CSR groups - The real question in this regard was whether there was a common issue as between those groups - The issues here were common only when stated in the most general terms - A finding that the defendants breached a duty of care or contract in relation to controlling MRSA infection would likely not significantly advance the claims of the CSR group, or vice versa - See paragraphs 57 to 71.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - The plaintiffs brought an action alleging that the defendants East Central Health (ECH) and Lakeland Regional Health Authority (LRHA) were negligent in the maintenance and operation of the defendant St. Joseph's General Hospital (SJGH), and in the manner that medical treatments were provided to patients, putting them at risk of exposure to infectious diseases including Methicillin-Resistant Staphylococcus aureus (MRSA), the Hepatitus B virus (HBV), the Hepatitis C virus (HCV) and the Human immunodeficiency virus (HIV) - The claim also alleged inadequate handling of cleaning and disinfection/sterilization of equipment in the Central Sterilization Room (CSR) of the SJGH during the class period, resulting in transmission to certain individuals of blood-borne diseases, namely HBV, HCV and HIV, and screening/testing of many other individuals - The plaintiffs sought to certify their action as a class action - At issue was, inter alia, whether a class proceeding was the preferable procedure for the fair and efficient resolution of the common issues - The Alberta Court of Queen's Bench found that the questions of fact or law common to the prospective class members did not predominate over questions affecting only the CSR group or the MRSA group - Beyond that finding, however, questions of fact or law common to the prospective class members of the CSR group predominated over any questions affecting only individual prospective class members - The common issues identified would move the action forward and would promote judicial economy - With respect to the CSR group, the defendants had not established that another means was more practical or efficient - However, proceeding with the MRSA claim as a test case for the MRSA group of claimants would be both more practical and more efficient in the circumstances - See paragraphs 72 to 92.

Cases Noticed:

Elder Advocates of Alberta Society et al. v. Alberta et al. (2009), 469 A.R. 270; 470 W.A.C. 270; 2009 ABCA 403, refd to. [para. 22].

Healey v. Lakeridge Health Corp. et al., [2010] O.T.C. Uned. 725; 2010 ONSC 725, affd. (2011), 273 O.A.C. 179 (C.A.), consd. [para. 27].

Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114; 375 N.R. 81; 238 O.A.C. 130; 2008 SCC 27, refd to. [para. 27].

Neuzen v. Korn, [1995] 3 S.C.R. 674; 188 N.R. 161; 64 B.C.A.C. 241; 105 W.A.C. 241, refd to. [para. 28].

ter Neuzen v. Korn - see Neuzen v. Korn.

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201; 2003 SCC 69, refd to. [para. 30].

Hollick v. Metropolitan Toronto (Municipality) et al., [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, refd to. [para. 37].

Windsor v. Canadian Pacific Railway Ltd. (2006), 402 A.R. 162; 2006 ABQB 348, refd to. [para. 37].

Wolfert et al. v. Shuchuk et al., [2003] A.R. Uned. 157; 2003 ABCA 109, refd to. [para. 37].

Healey v. Lakeridge Health Corp. et al., [2006] O.T.C. 981; 38 C.P.C.(6th) 145 (Sup. Ct.), refd to. [para. 42].

Wenden v. Trikha et al. (1991), 116 A.R. 81 (Q.B.), refd to. [para. 42].

Pittman Estate v. Bain (1994), 112 D.L.R.(4th) 257 (Ont. Gen. Div.), refd to. [para. 42].

Anderson et al. v. Wilson et al. (1999), 122 O.A.C. 69; 44 O.R.(3d) 673 (C.A.), leave to appeal denied (2000), 258 N.R. 194; 138 O.A.C. 200 (S.C.C.), refd to. [para. 42].

Phillip v. Whitecourt General Hospital et al. (2004), 359 A.R. 259; 2004 ABQB 761, refd to. [para. 42].

Western Canadian Shopping Centres Inc. et al. v. Dutton et al., [2001] 2 S.C.R. 534; 272 N.R. 135; 286 A.R. 201; 253 W.A.C. 201; 2001 SCC 46, refd to. [para. 45].

Bywater v. Toronto Transit Commission (1998), 83 O.T.C. 1; 27 C.P.C.(4th) 172 (Gen. Div.), refd to. [para. 46].

Hollick v. Metropolitan Toronto (Municipality) et al. (1999), 127 O.A.C. 369; 46 O.R.(3d) 257 (C.A.), affd. [2001] 3 S.C.R. 158; 277 N.R. 51; 153 O.A.C. 279; 2001 SCC 68, refd to. [para. 46].

Glover et al. v. Workers' Compensation Board (B.C.), [2006] B.C.T.C. 1071; 2006 BCSC 1071, refd to. [para. 46].

Glover et al. v. Toronto (City) et al., [2009] O.T.C. Uned. 932; 2009 CanLII 16740 (Sup. Ct.), refd to. [para. 47].

Stone v. Board of Education of Wellington County (1999), 120 O.A.C. 296; 1999 CarswellOnt 1039 (C.A.), refd to. [para. 48].

Cloud et al. v. Canada (Attorney General) et al. (2004), 192 O.A.C. 239; 73 O.R.(3d) 401 (C.A.), refd to. [para. 64].

Elder Advocates of Alberta Society et al. v. Alberta et al. (2008), 453 A.R. 1; 94 Alta. L.R.(4th) 10; 2008 ABQB 490, refd to. [para. 65].

Rumley et al. v. British Columbia, [2001] 3 S.C.R. 184; 275 N.R. 342; 157 B.C.A.C. 1; 256 W.A.C. 1, refd to. [para. 66].

Fulawka v. Bank of Nova Scotia, [2010] O.T.C. Uned. 1148; 2010 ONSC 1148, refd to. [para. 66].

Rose v. Pettle et al., [2004] O.T.C. 203; 23 C.C.L.T.(3d) 21 (Sup. Ct.), refd to. [para. 69].

Vezina et al. v. Loblaw Companies Ltd. et al., [2005] O.T.C. 365; 17 C.P.C.(6th) 307 (Sup. Ct.), refd to. [para. 69].

Fakhri et al. v. Capers Community Markets (2004), 203 B.C.A.C. 227; 332 W.A.C. 227; 2004 BCCA 549, refd to. [para. 69].

Farkas v. Sunnybrook and Women's College Health Sciences Centre, [2004] O.J. No. 5134 (Sup. Ct.), refd to. [para. 69].

Endean v. Canadian Red Cross Society et al., [1997] B.C.T.C. Uned. 766; 148 D.L.R.(4th) 158 (S.C.), refd to. [para. 69].

Rideout v. Health Labrador Corp., [2005] Nfld. & P.E.I.R. Uned. 54; 2005 NLTD 116, refd to. [para. 69].

Ayrton v. PRL Financial (Alta.) Ltd. et al. (2006), 384 A.R. 1; 367 W.A.C. 1; 2006 ABCA 88, refd to. [para. 72].

Ward-Price v. Mariners Haven Inc. et al., [2002] O.T.C. 871; 36 C.P.C.(5th) 189 (Sup. Ct.), refd to. [para. 81].

Brogaard et al. v. Canada (Attorney General), [2002] B.C.T.C. 1149 (S.C.), refd to. [para. 84].

Knight v. Imperial Tobacco Canada Ltd. et al. (2006), 225 B.C.A.C. 291; 371 W.A.C. 291; 2006 BCCA 235, refd to. [para. 85].

Smith v. Vancouver City Savings Credit Union, [2010] B.C.T.C. Uned. 120; 2010 BCSC 120, refd to. [para. 87].

Statutes Noticed:

Class Proceedings Act, S.A. 2003, c. C-16.5, sect. 5 [para. 21].

Authors and Works Noticed:

Branch, W.K., Class Actions in Canada (1996), § 4.220 [para. 80].

Eizenga, M.A., Peerless, M.J., and Wright, C.M., Class Actions Law and Practice (1999), §§ 3.65 [para. 80]; 3.86 [para. 66].

Picard, Ellen I., and Robertson, Gerald B., Legal Liability of Doctors and Hospitals in Canada (4th Ed. 2007), pp. 458 to 459 [para. 24]; 460, 468 [para. 23].

Counsel:

Philip S. Tinkler (Fraser Milner Casgrain LLP), for the plaintiffs;

D.M. McLaughlin and P. Jonathan Faulds, Q.C. (Field LLP), for the defendants, East Central Health and St. Joseph's General Hospital.

This application was heard on October 12, 2010, by Macklin, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on November 15, 2010.