Gay v. Regional Health Authority 7 et al., (2014) 421 N.B.R.(2d) 1 (CA)

JudgeDrapeau, C.J.N.B., Deschênes and Robertson, JJ.A.
CourtCourt of Appeal (New Brunswick)
Case DateFebruary 27, 2014
JurisdictionNew Brunswick
Citations(2014), 421 N.B.R.(2d) 1 (CA);2014 NBCA 10

Gay v. Health Authority (2014), 421 N.B.R.(2d) 1 (CA);

    421 R.N.-B.(2e) 1; 1094 A.P.R. 1

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2014] N.B.R.(2d) TBEd. MY.027

Renvoi temp.: [2014] N.B.R.(2d) TBEd. MY.027

Albert John Gay, Kimberley Ann Doyle and James Bliss Wilson (appellants) v. Regional Health Authority 7, a corporation incorporated under the laws of the Province of New Brunswick (respondent) and Dr. Rajgopal S. Menon (respondent)

(27-12-CA; 2014 NBCA 10)

Indexed As: Gay v. Regional Health Authority 7 et al.

Répertorié: Gay v. Regional Health Authority 7 et al.

New Brunswick Court of Appeal

Drapeau, C.J.N.B., Deschênes and Robertson, JJ.A.

May 8, 2014.

Summary:

Résumé:

A proposed class action was brought against Dr. Menon and Regional Health Authority 7 on behalf of over 15,000 patients whose biopsies were independently reviewed after concerns of competency were raised with respect to the delivery of pathology services by Dr. Menon at the Miramichi Regional Hospital. Special, general and aggravated damages were sought on behalf of all members of the proposed class. The causes of action asserted were founded in tort, breach of contract, breach of fiduciary duties and "equitable fraud". The plaintiffs moved for certification of the action as a class proceeding under the Class Proceedings Act.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at (2012), 389 N.B.R.(2d) 150; 1008 A.P.R. 150, dismissed the motion. The motion judge concluded that the plaintiffs had failed to establish an identifiable class, define a workable and manageable common issue or establish that a class action would be the preferable procedure. The plaintiffs appealed.

The New Brunswick Court of Appeal, Robertson, J.A., dissenting, allowed the appeal. The statutory conditions for certification had been met. The court concluded that it should issue a certification order. The court crafted an order at variance, in some respects, with the order sought in the Amended Notice of Motion.

Contracts - Topic 9007

Rights and liabilities of strangers to contract - General - Third party beneficiary identified by the contract - [See Hospitals - Topic 2061 and second Medicine - Topic 4361 ].

Damages - Topic 1532

General damages - General principles - Mental distress or emotional upset - A proposed class action was brought against Dr. Menon and Regional Health Authority 7 on behalf of over 15,000 patients whose biopsies were independently reviewed after concerns of competency were raised with respect to the delivery of pathology services by Dr. Menon at the Miramichi Regional Hospital - The plaintiffs' motion for certification as a class proceeding was dismissed - The New Brunswick Court of Appeal allowed the plaintiffs' appeal - Tthe court stated, inter alia, that "the motion judge turned his attention to the action's merits and chances of success at trial, finding 'it is plain and obvious that the Plaintiffs could not succeed in establishing the causes of action for mental stress in the absence of a physical injury' and that '[n]o evidence [had been] submitted in that regard' ... this consideration of the merits of the case reflects a line of inquiry that is beyond the scope of the certification process ... The appellants allege in their Amended Statement of Claim that all members of the proposed Class have suffered mental distress and anxiety to 'a degree sufficient to warrant compensation' as a result of the respondents' wrongful acts and omissions. Assuming those allegations are true, there is no question in our minds that the Amended Statement of Claim discloses a cause of action for damages for mental distress and anxiety" - The court added that the recoverability of damages for psychological harm that fell short of a medically recognized illness remained an open question, at least in the context of class proceedings for systemic failures in the provision of healthcare services for potential cancer or cancer-related diseases - See paragraphs 89 to 93.

Equity - Topic 3641

Fiduciary or confidential relationships - Breach of fiduciary relationship - General - A proposed class action was brought against Dr. Menon and Regional Health Authority 7 on behalf of over 15,000 patients whose biopsies were independently reviewed after concerns of competency were raised with respect to the delivery of pathology services by Dr. Menon at the Miramichi Regional Hospital - The plaintiffs plead that the Regional Hospital was liable for, inter alia, breach of fiduciary duty and "equitable fraud" - The plaintiffs' motion for certification as a class proceeding was dismissed - The New Brunswick Court of Appeal allowed the plaintiffs' appeal - The court stated, inter alia, that "The label 'equitable fraud' may be inapt, but that does not mean the wrongdoing described in paragraphs 71-72 of the Amended Statement of Claim, unconscionable withholding of critical healthcare information, is not actionable" - It was also not plain and obvious that the Amended Statement of Claim failed to disclose a cause of action for breach of fiduciary duties - See paragraphs 74 to 76.

Equity - Topic 3653

Fiduciary or confidential relationships - Breach of fiduciary relationship - By doctor - A proposed class action was brought against Dr. Menon and Regional Health Authority 7 on behalf of over 15,000 patients whose biopsies were independently reviewed after concerns of competency were raised with respect to the delivery of pathology services by Dr. Menon at the Miramichi Regional Hospital - It was alleged in paragraph 74 of the Amended Statement of Claim that Dr. Menon owed the duty of competency particularized in paragraph 73 by virtue of the law of fiduciary duties - The plaintiffs' motion for certification as a class proceeding was dismissed - The New Brunswick Court of Appeal allowed the plaintiffs' appeal - The court held, inter alia, that while the cause of action based upon Dr. Menon's breach of those duties might be novel, it was not plain and obvious that it was not legally cognizable - See paragraph 83.

Hospitals - Topic 2054

Liability of hospitals - To patients - General - Failure to provide adequate personnel, equipment, training, protocols and procedure - A proposed class action was brought against Dr. Menon and Regional Health Authority 7 on behalf of over 15,000 patients whose biopsies were independently reviewed after concerns of competency were raised with respect to the delivery of pathology services by Dr. Menon at the Miramichi Regional Hospital - The Amended Statement of Claim alleged the Regional Hospital was "corporately liable to the plaintiffs in tort of negligence", its conduct having fallen "below the reasonable standard of care expected of it under the circumstances and was corporate or systemic in nature" - It was specifically asserted that the Regional Hospital was negligent in connection with Dr. Menon's hiring, his credentialing over the years and its response to reports of substandard work on his part - A key complaint was that the Regional Hospital was negligent in failing to establish systems for the safe operation of the pathology department and laboratory - The plaintiffs' motion for certification as a class proceeding was dismissed - The New Brunswick Court of Appeal allowed the plaintiffs' appeal - The court held, inter alia, that it was far from plain and obvious that the Amended Statement of Claim did not disclose a cause of action in tort against the Regional Hospital - See paragraphs 54 to 61.

Hospitals - Topic 2061

Liability of hospitals - To patients - Breach of contract - General - A proposed class action was brought against Dr. Menon and Regional Health Authority 7 on behalf of over 15,000 patients whose biopsies were independently reviewed after concerns of competency were raised with respect to the delivery of pathology services by Dr. Menon at the Miramichi Regional Hospital - The plaintiffs plead that the Regional Hospital was liable for, inter alia, breach of contract - The plaintiffs' motion for certification as a class proceeding was dismissed - On appeal, the New Brunswick Court of Appeal stated that it was at least arguable that the proposed class, qua patients, were parties to a contract (deemed or implied) with the Regional Hospital - The law of privity of contract had also been changed by s. 4 of the Law Reform Act - The court stated that "The members of the proposed Class, qua patients, were arguably the intended beneficiaries of any contract for services, to which the Regional Hospital and Dr. Menon, as Chief of Pathology, Director of Clinical Laboratory Services and on-site pathologist, were parties. Tracking the wording of s. 4(3.1)(b), the members of the proposed Class, although not named in any such contract, might well be 'member[s] of a class of persons intended to receive the performance' of some of the Regional Hospital's obligations thereunder. Under s. 4(1), members of the proposed Class, as members of the class referenced in s. 4(3.1)(b) 'may enforce that performance [...] by a claim for damages or otherwise'" - See paragraphs 77 to 80.

Medicine - Topic 4241.3

Liability of practitioners - Negligence or fault - Duty of care - A proposed class action was brought against Dr. Menon and Regional Health Authority 7 on behalf of over 15,000 patients whose biopsies were independently reviewed after concerns of competency were raised with respect to the delivery of pathology services by Dr. Menon at the Miramichi Regional Hospital - The proposed representative plaintiffs asserted in paragraph 73 of the Amended Statement of Claim, under the heading of "Fault or Negligence", that Dr. Menon owed them qua patients a duty to maintain competency - Paragraph 73 concluded with the more general complaint that Dr. Menon did not possess the skill and knowledge expected by his patients, and which were necessary to meet the standard of a competent anatomical pathologist or of a competent Chief of Pathology - The plaintiffs' motion for certification as a class proceeding was dismissed - The New Brunswick Court of Appeal allowed the plaintiffs' appeal - It was far from plain and obvious that Dr. Menon, as Chief of Pathology, Director of Clinical Laboratory Services and on-site pathologist, did not owe "a duty to patients to maintain competency", as particularized in the Amended Statement of Claim - Nor was it plain and obvious that the particulars formulated in paragraph 73 of the Amended Statement of Claim failed to evince actionable fault or negligence - It was far from plain and obvious that the Amended Statement of Claim failed to disclose a cause of action in tort against Dr. Menon, as Chief of Pathology, Director of Clinical Laboratory Services and/or as on-site anatomical pathologis - See paragraphs 62 to 70.

Medicine - Topic 4361

Liability of practitioners - Breach of contract - General - A proposed class action was brought against Dr. Menon and Regional Health Authority 7 on behalf of over 15,000 patients whose biopsies were independently reviewed after concerns of competency were raised with respect to the delivery of pathology services by Dr. Menon at the Miramichi Regional Hospital - The proposed representative plaintiffs plead, inter alia, that as Chief of Pathology, Director of Clinical Laboratory Services and on-site anatomical pathologist, Dr. Menon was under an implied contractual relationship to maintain his competency - The plaintiffs' motion for certification as a class proceeding was dismissed - The New Brunswick Court of Appeal allowed the plaintiffs' appeal - It was not plain and obvious that the claim in contract against Dr. Menon did not disclose a cause of action - Dr. Menon's responsibilities, and his services were not provided free of charge - Valuable consideration flowed to him from Medicare - According to the Amended Statement of Claim, it was foreseeable that a failure on Dr. Menon's part "to maintain competency leading to a general questioning of his surgical pathology diagnoses and the need to repeat or reread his tests, would cause mental distress to [his] patients" - A key component of that relationship was the provision of "peace of mind and psychological benefit" - See paragraph 81.

Medicine - Topic 4361

Liability of practitioners - Breach of contract - General - A proposed class action was brought against Dr. Menon and Regional Health Authority 7 on behalf of over 15,000 patients whose biopsies were independently reviewed after concerns of competency were raised with respect to the delivery of pathology services by Dr. Menon at the Miramichi Regional Hospital - The proposed representative plaintiffs plead, inter alia, that as Chief of Pathology, Director of Clinical Laboratory Services and on-site anatomical pathologist, Dr. Menon was under an implied contractual relationship to maintain his competency - The plaintiffs' motion for certification as a class proceeding was dismissed - The New Brunswick Court of Appeal allowed the plaintiffs' appeal - It was not plain and obvious that the claim in contract against Dr. Menon did not disclose a cause of action - The court stated, inter alia, "Section 4(1) of the Law Reform Act may allow the members of the proposed Class to enforce, by a claim for damages, the performance of some of Dr. Menon's obligations under the contract(s), whether express or implied, with the Regional Hospital. That would be the case if the claimants, although not named in any such contract, are found to be 'member[s] of a class of persons intended to receive the performance;' of Dr. Menon's contracted services as Chief of Pathology, Director of Clinical Laboratory Services and as on-site anatomical pathologist" - See paragraph 82.

Practice - Topic 208.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Aggregate damages - A proposed class action was brought against Dr. Menon and Regional Health Authority 7 on behalf of over 15,000 patients whose biopsies were independently reviewed after concerns of competency were raised with respect to the delivery of pathology services by Dr. Menon at the Miramichi Regional Hospital - The plaintiffs' motion for certification as a class proceeding was dismissed - The New Brunswick Court of Appeal allowed the plaintiffs' appeal - The statutory conditions for certification were satisfied - The court concluded that it should issue a certification order - The court crafted an order at variance, in some respects, with the order sought in the Amended Notice of Motion - It was preferable, at this time, to separate the liability-related issues from other issues, including damages-related issues - The objection to stating the availability of an aggregate monetary award as a common issue was two-pronged - First, there was no claim for an aggregate award for damages in the Amended Statement of Claim - Second, the litigation plan did not offer a plan for the adjudication of any claim for an aggregate award of damages - Moreover, the Court of Queen's Bench had full authority, on proper cause being shown, to amend the order and to allow all amendments to the pleadings and the litigation plan that might be required in the interests of justice - See paragraphs 125 to 135.

Practice - Topic 209

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - General principles - The New Brunswick Court of Appeal stated that "The provisions of the Class Proceedings Act stand to be interpreted with a view to furthering its objects: facilitating access to justice, modifying harmful behaviour and conserving judicial resources. The Supreme Court of Canada has emphasized that the requirements for authorization of a class action under Quebec law have 'on a consistent basis been interpreted and applied broadly' (see Marcotte v. Longueuil (City) ... and Infineon Technologies ...). As was noted in those two cases, the jurisprudence favours 'easier access' to class actions as a means of achieving the twin goals of deterrence and victim compensation. Despite the particular wording of Quebec class action legislation, there is no principled basis for a less generous approach to the interpretation and application of s. 6 of this province's Class Proceedings Act" - See paragraph 46.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - A proposed class action was brought against Dr. Menon and Regional Health Authority 7 on behalf of over 15,000 patients whose biopsies were independently reviewed after concerns of competency were raised with respect to the delivery of pathology services by Dr. Menon at the Miramichi Regional Hospital - The plaintiffs' motion for certification as a class proceeding was dismissed - The New Brunswick Court of Appeal allowed the plaintiffs' appeal - The "identifiable class" criterion was met - The motion judge erred in concluding otherwise - The court stated, inter alia, "Once he concluded the appellants failed to establish any common issue under s. 6(1)(c), it was no longer open to the motion judge, as a matter of logic, to discern the rational relationship between the proposed Class and common issues ... Had the motion judge correctly applied the test to determine the 'common issues' question, their existence could not have been overlooked and we have no doubt he would have acknowledged a rational relationship between members of the proposed Class and common issues, an essential requirement of the 'identifiable class' criterion" - See paragraphs 102 to 103.

Practice - Topic 209.1

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Members of class - General - A proposed class action was brought against Dr. Menon and Regional Health Authority 7 on behalf of over 15,000 patients whose biopsies were independently reviewed after concerns of competency were raised with respect to the delivery of pathology services by Dr. Menon at the Miramichi Regional Hospital - The plaintiffs' motion for certification as a class proceeding was dismissed - The New Brunswick Court of Appeal allowed the plaintiffs' appeal - The "identifiable class" criterion was met - The motion judge erred in concluding otherwise - The motion judge concluded that the proposed class offended the "objectivity" criterion by reason of the possibility members might have to consult an expert to determine if their specimen(s) had been tested for cancer-related diseases - The "objectivity" criterion was not affected, even assuming such an eventuality - Membership in the proposed class was defined by the objective requirement that the class member be a person "whose tissue samples underwent pathology testing for potential cancer or potential cancer-related disease, and were reported by [Dr. Menon], to the [Regional Hospital] during the class period, and whose tissue samples the [Regional Hospital] subsequently caused to be retested" - The proposed class was not open-ended and it was circumscribed by objective criteria - See paragraphs 104 to 106.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations - A proposed class action was brought against Dr. Menon and Regional Health Authority 7 on behalf of over 15,000 patients whose biopsies were independently reviewed after concerns of competency were raised with respect to the delivery of pathology services by Dr. Menon at the Miramichi Regional Hospital - The plaintiffs' motion for certification as a class proceeding was dismissed - The New Brunswick Court of Appeal allowed the plaintiffs' appeal - The motion judge erred in concluding that the plaintiffs had not identified a common issue susceptible of supporting certification - Whether the respondents bore legal obligations and owed legal duties for the benefit of the proposed class members that were breached by the way the respondents managed and operated the pathology department and laboratory at the Regional Hospital was a necessary and substantial part of each member's claims - The common issues in respect of the respondents' legal obligations and duties and their breach, if any, were far from negligible when viewed in the context of the case as a whole - See paragraphs 107 to 115.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations - A proposed class action was brought against Dr. Menon and Regional Health Authority 7 on behalf of over 15,000 patients whose biopsies were independently reviewed after concerns of competency were raised with respect to the delivery of pathology services by Dr. Menon at the Miramichi Regional Hospital - The plaintiffs' motion for certification as a class proceeding was dismissed - The New Brunswick Court of Appeal allowed the plaintiffs' appeal - The motion judge's suggestion that individual simplified proceedings under rule 79 or small claims actions would be the preferable procedure was driven by two closely-related misapprehensions - The first was that the Amended Statement of Claim disclosed no more than individual claims based on a run-of-the-mill medical malpractice in relation to each proposed class member - The Amended Statement of Claim did much more than that: it formulated on behalf of all members of the proposed class a case of hospital-based malpractice founded on systemic failures with class-wide effects (e.g., out-of-pocket expenses, as well as compensable mental distress and anxiety) - The second misapprehension was that the record did not reveal common issues - The record revealed "common issues" within the meaning of s. 6(1)(c) of the Class Proceedings Act - That finding and the principles set out in AIC Ltd. v. Fischer (2013 SCC) militated strongly in favour of the conclusion that a class proceeding would be the preferable procedure - See paragraphs 116 to 124.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations - A proposed class action was brought against Dr. Menon and Regional Health Authority 7 on behalf of over 15,000 patients whose biopsies were independently reviewed after concerns of competency were raised with respect to the delivery of pathology services by Dr. Menon at the Miramichi Regional Hospital - The plaintiffs' motion for certification as a class proceeding was dismissed - The New Brunswick Court of Appeal allowed the plaintiffs' appeal - The court held that the Amended Statement of Claim disclosed an action for compensable mental distress and anxiety - The court further stated that "Let us assume, for the sake of argument only, that the motion judge was entitled to determine as a matter of fact that none of the representative plaintiffs suffered mental distress or anxiety to a degree compensable at law. Any such determination would not necessarily put an end to the prosecution of the action under the Class Proceedings Act, as the motion judge seems to have thought. That is so for at least two reasons. First, the Amended Statement of Claim includes a claim for 'out of pocket expenses'. ... Accordingly, even if the claim for general damages in relation to mental distress and anxiety could not succeed at trial, the claims for out-of-pocket expenses would remain and require adjudication. ... Second, there are indications that some members of the proposed Class suffered particularly severe non-physical harm, in addition to physical injury, as a result of the fault or negligence alleged in the Amended Statement of Claim. Their claims should stand and be processed by way of class action even if it were concluded that damages are not recoverable for so-called 'routine' or 'every-day' mental distress and anxiety on a class-wide basis" - See paragraphs 94 to 96.

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations - The plaintiffs' motion for certification of the action under the Class Proceedings Act was dismissed - The New Brunswick Court of Appeal allowed the plaintiffs' appeal - The statutory conditions for certification of the action as a class proceeding were satisfied - The court concluded that it should issue a certification order, and not refer the whole case back to the Court of Queen's Bench - However, three considerations prompted the court to craft an order at variance, in some respects, with the order sought in the Amended Notice of Motion - The court stated that "First, the terms of the Court's order seek to reflect what is contained in and what is omitted from the Amended Statement of Claim and the proposed litigation plan. Second, there are issues that this Court can appropriately determine, and others that it cannot or should not. Third, absent exceptional circumstances, the management of class proceedings is best left to the Trial Division of the Court of Queen's Bench whose expertise in this important area of the law must be given an opportunity to develop. Moreover, and most importantly, in class proceedings, very little, if anything, is beyond adjustment. Procedural flexibility is essential if meaningful access to justice is to be achieved" - See paragraphs 125 to 127.

Practice - Topic 209.7

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Evidence and proof - [See Damages - Topic 1532 ].

Practice - Topic 209.7

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Evidence and proof - The plaintiffs appealed from the dismissal of their motion for certification of the action as a class proceeding - The New Brunswick Court of Appeal stated that "The motion judge's reasons for decision suggest he was aware of the test to be applied when deciding whether or not the pleadings 'disclose a cause of action' ... However, the motion judge went beyond the Amended Statement of Claim and considered the affidavit evidence in the record to find it was plain and obvious that the claims for damages for mental distress and anxiety could not succeed at trial. This was so because, in the judge's assessment of the evidential record, whatever non-physical harm had been suffered, it did not reach the threshold level of psychological or psychiatric injury required for compensation. In our view, the motion judge addressed the wrong question. On a certification motion, the question is not whether the claims are likely to succeed on the merits at trial, but whether a cause of action is formally advanced in the pleadings ... The issue under s. 6(1)(a) of the Class Proceedings Act must be determined solely by reference to the pleadings as is the case on a Rule 23.01(1)(b) motion to strike a statement of claim for failure to disclose a reasonable cause of action" - See paragraphs 50 to 53.

Practice - Topic 210.5

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Procedure - Pre-certification matters (incl. particulars, production, pleadings, etc.) - [See Practice - Topic 1616 ].

Practice - Topic 1616

Pleadings - The defence - Time for filing - The plaintiffs' motion for certification of the action as a class proceeding was dismissed - On consent of all parties, the motion judge had relieved the defendant Dr. Menon of his obligation under the Rules of Court to file a Statement of Defence and a Defence to Cross-Claim until after the hearing of the motion on certification - The New Brunswick Court of Appeal stated its disapproval of this circumvention of s. 3(4)(a) of the Class Proceedings Act and rule 29.03(1) - Section 3(4)(a) contemplated that a motion for certification would only be presented after the Statement of Defence had been served and the close of pleadings - Rule 29.03(1) required Dr. Menon to file his Statement of Defence and Cross-Claim within the applicable deadline under rule 20.01 - Despite the parties' consent, certification judges should, as a general rule, insist on the filing and exchange of a full set of pleadings before hearing the parties - See paragraphs 24 to 25.

Contrats - Cote 9007

Droits et obligations des tiers - Généralités - Tiers bénéficiaire identifié par le contrat - [Voir Contracts - Topic 9007 ].

Dommages-intérêts - Cote 1532

Dommages-intérêts généraux - Eléments de dommages-intérêts généraux - Souffrances morales ou troubles émotifs - [Voir Damages - Topic 1532 ].

Equity - Cote 3641

Rapports fiduciaux ou de créance - Violation d'un rapport fiducial - Généralités - [Voir Equity - Topic 3641 ].

Equity - Cote 3653

Rapports fiduciaux ou de créance - Abus de confiance par un médecin - [Voir Equity - Topic 3653 ].

Hôpitaux - Cote 2054

Responsabilité des hôpitaux - Envers les patients - Généralités - Omission de fournir du personnel, de l'équipement, une formation, des protocoles et une procédure convenables - [Voir Hospitals - Topic 2054 ].

Hôpitaux - Cote 2061

Responsabilité des hôpitaux - Envers les patients - Violation de contrat - Généralités - [Voir Hospitals - Topic 2061 ].

Médecine - Cote 4241.3

Responsabilité des praticiens - Negligence - Devoir de diligence - [Voir Medicine - Topic 4241.3 ].

Médecine - Cote 4361

Responsabilité des praticiens - Rupture de contrat - Généralités - [Voir Medicine - Topic 4361 ].

Procédure - Cote 208.4

Personnes pouvant ester en justice - Particuliers et personnes morales - Qualité pour agir - Recours collectif - Dommages globaux - [Voir Practice - Topic 208.4 ].

Procédure - Cote 209

Personnes pouvant ester en justice - Particuliers et personnes morales - Qualité pour agir - Recours collectif - Principes généraux - [Voir Practice - Topic 209 ].

Procédure - Cote 209.1

Personnes pouvant ester en justice - Particuliers et personnes morales - Qualité pour agir - Recours collectif - Membres du groupe - Généralités - [Voir Practice - Topic 209.1 ].

Procédure - Cote 209.3

Personnes pouvant ester en justice - Particuliers et personnes morales - Qualité pour agir - Recours collectif ou représentatif - Certification - Facteurs à considérer (y compris si le recours collectif est le recours approprié) - [Voir Practice - Topic 209.3 ].

Procédure - Cote 209.7

Personnes pouvant ester en justice - Particuliers et personnes morales - Qualité pour agir - Recours collectif ou représentatif - Certification - Preuve - [Voir Practice - Topic 209.7 ].

Procédure - Cote 210.5

Personnes pouvant ester en justice - Particuliers et personnes morales - Qualité pour agir - Recours collectif ou représentatif - Procédure - Questions précédant la certification (y compris précisions, production, plaidoiries, etc.) - [Voir Practice - Topic 210.5 ].

Procédure - Cote 1616

Plaidoiries - Exposé de la défense - Moment du dépôt - [Voir Practice - Topic 1616 ].

Cases Noticed:

Bryson et al. v. Canada (Attorney General) et al. (2009), 353 N.B.R.(2d) 1; 910 A.P.R. 1; 2009 NBQB 204, refd to. [paras. 5, 189].

O'Neill et al. v. St-Isidore Asphalte ltée (2013), 400 N.B.R.(2d) 111; 1038 A.P.R. 111; 2013 NBQB 72, refd to. [para. 5].

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, consd. [para. 6].

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; 2001 SCC 69, consd. [paras. 6, 145].

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, consd. [paras. 6, 150].

Pro-Sys Consultants Ltd. et al. v. Microsoft Corp. et al., [2013] 3 S.C.R 477; 450 N.R. 201; 2013 SCC 57, refd to. [paras. 6, 164].

Sun-Rype Products Ltd. et al. v. Archer Daniels Midland Co. et al. (2013), 450 N.R. 287; 345 B.C.A.C. 87; 589 W.A.C. 87; 2013 SCC 58, refd to. [para. 6].

Infineon Technologies AG et al. v. Option consommateurs et al. (2013), 450 N.R. 355; 2013 SCC 59, refd to. [para. 6].

AIC Ltd. v. Fischer - see/voir Fischer et al. v. IG Investment Management Ltd. et al.

Fischer et al. v. IG Investment Management Ltd. et al. (2013), 452 N.R. 80; 312 O.A.C. 128; 2013 SCC 69, refd to. [para. 6].

Pennyfeather v. Timminco Ltd. et al., [2011] O.T.C. Uned. 4257; 2011 ONSC 4257, refd to. [para. 25].

Labourers' Pension Fund of Central and Eastern Canada et al. v. Sino-Forest Corp. et al., [2012] O.T.C. Uned. 1924; 2012 ONSC 1924, refd to. [para. 25].

United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 772 v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada et al. (2013), 404 N.B.R.(2d) 332; 1048 A.P.R. 332; 2013 NBCA 33, refd to. [para. 25].

Dell'Aniello v. Vivendi Canada Inc. (2014), 453 N.R. 150; 2014 SCC 1, refd to. [para. 40].

Marcotte et al. v. Longueuil (Ville), [2009] 3 S.C.R. 65; 394 N.R. 1; 2009 SCC 43, refd to. [para. 46].

Cloud et al. v. Canada (Attorney General) et al. (2004), 192 O.A.C. 239 (C.A.), leave to appeal refused (2005), 344 N.R. 192 (S.C.C.), refd to. [paras. 46, 218].

Anderson et al. v. Canada (Attorney General) (2011), 315 Nfld. & P.E.I.R. 314; 981 A.P.R. 314; 2011 NLCA 82, refd to. [para. 48].

Cassano et al. v. Toronto-Dominion Bank (2007), 230 O.A.C. 224; 2007 ONCA 781, leave to appeal refused (2008), 386 N.R. 389; 252 O.A.C. 399, refd to. [para. 48].

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321, refd to. [para. 50].

Sewell v. ING Insurance Co. of Canada - see/voir Sewell v. Sewell.

Sewell v. Sewell (2007), 314 N.B.R.(2d) 330; 812 A.P.R. 330; 2007 NBCA 42, refd to. [para. 52].

Cannon v. Lange et al. (1998), 203 N.B.R.(2d) 121; 518 A.P.R. 121 (C.A.), refd to. [para. 53].

Anderson et al. v. Wilson et al. (1999), 122 O.A.C. 69; 44 O.R.(3d) 673 (C.A.), refd to. [paras. 54, 170].

Healey v. Lakeridge Health Corp. et al. (2011), 273 O.A.C. 179; 2011 ONCA 55, refd to. [paras. 54, 171].

Comeau v. Saint John Regional Hospital et al. (2001), 244 N.B.R.(2d) 201; 634 A.P.R. 201; 2001 NBCA 113, refd to. [paras. 58, 168].

Bateman et al. v. Doiron et al. (1991), 118 N.B.R.(2d) 20; 296 A.P.R. 20 (T.D.), affd. (1993), 141 N.B.R.(2d) 321; 361 A.P.R. 321 (C.A.), refd to. [para. 58].

Yepremian v. Scarborough General Hospital, [1980] O.J. No. 3592 (C.A.), refd to. [paras. 58, 167].

Crits and Crits v. Sylvester et al., [1956] O.J. No. 526 (C.A.), affd. [1956] S.C.R. 991, refd to. [paras. 64, 166].

Thompson v. Creaghan and Miramichi Hospital (1983), 46 N.B.R.(2d) 271; 121 A.P.R. 271 (C.A.), refd to. [para. 64].

Beshara v. Dysart (1998), 207 N.B.R.(2d) 14; 529 A.P.R. 14 (C.A.), refd to. [para. 64].

Elder Advocates of Alberta Society et al. v. Alberta et al., [2011] 2 S.C.R. 261; 416 N.R. 198; 499 A.R. 345; 514 W.A.C. 345; 2011 SCC 24, refd to. [paras. 76, 185].

Walsh v. Nicholls et al. (2004), 273 N.B.R.(2d) 203; 717 A.P.R. 203; 2004 NBCA 59, refd to. [para. 80].

Beaulieu v. Day & Ross Inc. (2005), 280 N.B.R.(2d) 201; 734 A.P.R. 201; 2005 NBCA 25, refd to. [para. 80].

Fidler v. Sun Life Assurance Co. of Canada (2006), 350 N.R. 40; 227 B.C.A.C. 39; 374 W.A.C. 39; 2006 SCC 30, refd to. [para. 81], dist. [para. 143].

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. [paras. 89, 165].

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. 90].

M.C.C. v. Canada (Attorney General), [2003] O.J. No. 2698 (Sup. Ct.), refd to. [para. 112].

Burke Estate et al. v. Royal & Sun Alliance Insurance Co. of Canada (2011), 381 N.B.R.(2d) 81; 984 A.P.R. 81; 2011 NBCA 98, refd to. [para. 132].

Fulawka v. Bank of Nova Scotia (2012), 293 O.A.C. 204; 2012 ONCA 443, leave to appeal refused (2013), 452 N.R. 393 (S.C.C.), refd to. [paras. 134, 148].

Robb Estate v. St. Joseph's Health Care Centre, [1998] O.J. No. 4419 (Ct. J.), refd to. [para. 181].

Rintoul v. St.Joseph's Health Centre - see/voir Robb Estate et al. v. Canadian Red Cross Society et al.

Farrow v. Canadian Red Cross Society - see/voir Robb Estate et al. v. Canadian Red Cross Society et al.

Robb Estate et al. v. Canadian Red Cross Society et al. [2000] O.T.C. 23 (Sup. Ct.), affd. (2001), 152 O.A.C. 60 (C.A.), refd to. [para. 181].

British Columbia v. Imperial Tobacco Canada Ltd. et al., [2011] 3 S.C.R. 45; 419 N.R. 1; 308 B.C.A.C. 1; 521 W.A.C. 1; 2011 SCC 42, refd to. [para. 184].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 185].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 185].

Cooper v. Registrar of Mortgage Brokers (B.C.) et al., [2001] 3 S.C.R. 537; 277 N.R. 113; 160 B.C.A.C. 268; 261 W.A.C. 268; 2001 SCC 79, refd to. [para. 185].

Levasseur et al. v. New Brunswick Securities Commission, [2012] N.B.R.(2d) Uned. 58; 2012 NBQB 137, refd to. [para. 189].

Collette v. Great Pacific Management Co. et al. (2004), 195 B.C.A.C. 79; 319 W.A.C. 79; 2004 BCCA 110, leave to appeal dismissed (2004), 333 N.R. 393; 213 B.C.A.C. 320; 352 W.A.C. 320 (S.C.C.), dist. [para. 194].

White v. Chief Constable of South Yorkshire, [1999] 2 A.C. 455 (H.L.), refd to. [para. 198].

Tame v. New South Wales (2002), 211 C.C.R. 317 (H.C.A.), refd to. [para. 198].

Doucette v. Eastern Regional Integrated Health Authority (2007), 271 Nfld. & P.E.I.R. 39; 826 A.P.R. 39; 2007 NLTD 138, dist. [para. 208].

Koubi v. Mazda Canada Inc., [2010] B.C.T.C. Uned. 650; 2010 BCSC 650, varied (2012), 325 B.C.A.C. 172; 553 W.A.C. 172; 2012 BCCA 310, refd to. [para. 218].

Caputo et al. v. Imperial Tobacco Ltd. et al., [2004] O.T.C. 112 (Sup. Ct.), refd to. [para. 218].

Bywater v. Toronto Transit Commission (1998), 83 O.T.C. 1 (Gen. Div.), refd to. [para. 218].

Healey v. Lakeridge Health Corp. et al., [2006] O.T.C. 981 (Sup. Ct.), refd to. [para. 220].

Healey v. Lakeridge Health Corp. et al., [2010] O.T.C. Uned. 725; 2010 ONSC 725, refd to. [para. 220].

Pro-Sys Consultants Ltd. v. Infineon Technologies AG et al. (2009), 277 B.C.A.C. 271; 469 W.A.C. 271; 2009 BCCA 503, leave to appeal refused (2010), 409 N.R. 385; 299 B.C.A.C. 322; 508 W.A.C. 322 (S.C.C.), refd to. [para. 222].

Markson v. MBNA Canada Bank (2007), 224 O.A.C. 71; 2007 ONCA 334, leave to appeal refused (2007), 383 N.R. 381; 248 O.A.C. 396 (S.C.C.), refd to. [para. 224].

Statutes Noticed:

Class Proceedings Act, R.S.N.B. 2011, c. 125, sect. 3(4)(a) [para. 25]; sect. 6(1) [para. 35]; sect. 7(2) [para. 40]; sect. 9 [para. 41]; sect. 10(1) [para. 42]; sect. 10(4) [para. 43]; sect. 29(1), sect. 30 [para. 44]; sect. 31(1) [para. 45].

Law Reform Act, R.S.N.B. 2011, c. 184, sect. 3(1) [para. 85]; sect. 4 [para. 79].

Rules of Court (N.B.), rule 20.01, rule 29.03(1) [para. 25].

Authors and Works Noticed:

Bélanger-Hardy, Louise, Reconsidering the "Recognized Psychiatric Illness" Requirement in Canadian Negligence Law (2013), 38:2 Queen's L.J. 583, generally [para. 93].

Canadian Medical Association, CMA Code of Ethics, online: <http://policybase. cma.ca/dbtw-wpd/PolicyPDF/PD04-06.pdf>, paras. 5, 6 [para. 64].

Downie, Jocelyn, Caulfield, Timothy, and Flood, Colleen, eds., Canadian Health Law and Policy (4th Ed. 2011), pp. 147, 148 [para. 58].

Klar, Lewis N., Tort Law (5th Ed. 2012), p. 497 et seq. [para. 233].

Kozel, R., and Rosenberg, D., Solving The Nuisance-Value Settlement Problem: Mandatory Summary Judgment (2004), 90 Va. L. Rev. 1849, generally [para. 151].

McCarthy Tétrault, Defending Class Actions in Canada (3rd Ed. 2011), pp. 16 [para. 151]; 191 et seq. [para. 230].

Osborne, Philip H., The Law of Torts (3rd Ed. 2007), p. 82 [para. 93].

Picard, Ellen I., and Robertson, Gerald, Legal Liability of Doctors and Hospitals in Canada (3rd Ed. 1996), generally [para. 168]; p. 367 [para. 111].

Pitch, Harvin, and Sokolsky, Matthew, Class Action Damages: Assessing Aggregate Damages in Class Action Litigation (2005), 2:1 Can Class Action Rev. 41, p. 61 [para. 217].

Sharpe, Gilbert, The Law & Medicine in Canada (2nd Ed. 1987), pp. 123 to 125 [para. 58].

Counsel:

Avocats:

Chesley F. Crosbie, Q.C., Michael F. Donovan, Q.C., and Raymond F. Wagner, Q.C., for the appellant;

David T. Hashey, Q.C., Catherine M. Bowlen and Philippe M. Frenette, for the respondent, Regional Health Authority 7;

Charles A. LeBlond, Q.C., Catherine A. Fawcett and Mary M. Thomson, for the respondent, Dr. Menon.

This appeal was heard on January 16, and June 11 to 13, 2013, before Drapeau, C.J.N.B., Deschênes and Robertson, JJ.A., of the New Brunswick Court of Appeal. The judgment of the Court of Appeal was rendered on February 27, 2014, and written reasons were delivered on May 8, 2014, including the following opinions:

Drapeau, C.J.N.B., and Deschênes, J.A. - see paragraphs 1 to 137;

Robertson, J.A., dissenting - see paragraphs 138 to 236.

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