Healey v. Lakeridge Health,

• Jurisdiction: Ontario
• Judge: Winkler, C.J.O., Moldaver, Feldman, Sharpe and Simmons, JJ.A.
• Neutral Citation: 2011 ONCA 55
• Citation: 2011 ONCA 55,(2011), 273 O.A.C. 179 (CA),103 OR (3d) 401,328 DLR (4th) 248,81 CCLT (3d) 67,[2011] OJ No 231 (QL),273 OAC 179,273 O.A.C. 179,[2011] O.J. No 231 (QL),(2011), 273 OAC 179 (CA),328 D.L.R. (4th) 248,103 O.R. (3d) 401
• Date: 21 January 2011
• Court: Court of Appeal (Ontario)

Healey v. Lakeridge Health (2011), 273 O.A.C. 179 (CA)

MLB headnote and full text

Temp. Cite: [2011] O.A.C. TBEd. JA.032

Garrett Joseph Healey (plaintiff/appellant) v. Lakeridge Health Corporation and David J. Ross (defendants/respondents)

(C51777)

Michael David Horgan (plaintiff/appellant) v. Lakeridge Health Corporation, David J. Ross and Hak Ming Chiu (defendants/respondents)

(C51778; 2011 ONCA 55)

Indexed As: Healey v. Lakeridge Health Corp. et al.

Ontario Court of Appeal

Winkler, C.J.O., Moldaver, Feldman, Sharpe and Simmons, JJ.A.

January 21, 2011.

Summary:

On separate occasions in 2003 and 2004, thousands of persons at Lakeridge's health facilities were potentially exposed to two persons with tuberculosis (TB). Health authorities sent out notices advising those persons that there was little risk that they contracted TB, but that they should be tested. Two class actions were commenced by the plaintiffs on behalf of persons who received notices of potential exposure. The actions alleged that Lakeridge and the two treating doctors were negligent in failing to properly diagnose the two patients' TB and in failing to take adequate steps to prevent the spread of TB. There were three classes: (1) persons infected with TB; (2) persons not infected; and (3) family members of the above two classes with derivative claims under the Family Law Act. The uninfected class and their family members claimed damages for alleged psychological harm resulting from being told of the possibility of TB infection. The defendants applied under rule 20 for summary judgment dismissing the psychological injuries claims. The uninfected class and their family members sought partial summary judgment that their injuries were compensable in law and that damages be assessed on an aggregate basis.

The Ontario Superior Court, in a judgment reported [2010] O.T.C. Uned. 725, granted the defendants summary judgment dismissing the claims of the uninfected class and dismissed the application for partial summary judgment. The judge held that Lakeridge did not owe the uninfected class a duty of care on an application of the Cooper/Anns test. In any event, the psychological injuries failed to meet the threshold of a "recognizable psychiatric illness", which was the threshold for compensable damages. The injuries suffered were too remote and an aggregate assessment of damages was not available where the prerequisites of s. 24 of the Class Proceedings Act were not met. In a subsequent judgment, reported [2010] O.T.C. Uned. 1884, the judge awarded Lakeridge partial indemnity costs of $180,000 and the defendant doctors $80,000. The uninfected class appealed the dismissal of their claims and the costs decision.

The Ontario Court of Appeal dismissed the appeal. The judge erred in misdescribing the alleged duty of care and in finding that no duty of care existed. The defendants owed uninfected persons a duty to take appropriate steps to prevent the potential transmission of TB infection. This was a well-recognized category, so resort to the Cooper/Anns test was unnecessary. However, the judge correctly decided that the alleged psychiatric illnesses were not compensable in law. The threshold remained a "recognizable psychiatric illness", which was not met. Even if the threshold was lowered, the psychological harm suffered would still not be sufficient to meet any minimum acceptable threshold. The judge was correct to find that aggregate damages were inappropriate and there was no error in the costs award.

Damages - Topic 533

Limits of compensatory damages - Remoteness - Torts - Purely psychiatric loss - The plaintiffs were potentially exposed to two persons with tuberculosis (TB) at the defendant's hospital - The plaintiffs received notices advising that they were potentially exposed and that, although there was little risk that they contracted TB, they should be tested - None of the plaintiffs tested positive, but sued the defendants for damages, alleging negligence in failing to properly diagnose the two patients' TB and in failing to take adequate steps to prevent the spread of TB - The plaintiffs claimed that they suffered psychological injuries as a result of receiving the notices - At issue was whether their psychological injuries method the threshold required to be compensable at law - The Ontario Court of Appeal affirmed the trial judge's decision that the type of psychological injuries suffered by the plaintiffs were not compensable - The law limited compensable damages to a plaintiff suffering a "recognizable psychiatric illness", which none of the plaintiffs established - The plaintiffs alleged that the notices resulted in them suffering from depression, fear, shock, anxiety, anger, frustration, shame, outrage, distress and sleeplessness - The court rejected the plaintiffs' submission that since Mustapha v. Culligan of Canada Ltd. (SCC 2008) it was no longer necessary to prove a "recognizable psychiatric illness"; that the threshold was lowered to "the need to show harm that goes beyond 'upset, disgust, anxiety, agitation or other mental states that fall short of injury' and amounts to 'serious trauma or illness' that is 'serious and prolonged and ris[ing] above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept'" - The law remained that to recover damages for psychological injury independent of any claim for physical injury, a plaintiff must suffer from a "recognizable psychiatric illness" - Even if the threshold was lowered, the plaintiffs did not suffer harm of sufficient gravity and duration to qualify for compensation under any minimum acceptable threshold - See paragraphs 39 to 66.

Damages - Topic 2542

Torts affecting the person - Particular damage claims - Nervous shock - [See Damages - Topic 533 ].

Practice - Topic 208.4

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class actions - Aggregate damages - The plaintiffs were all potentially exposed to tuberculosis (TB) at the defendant's hospital - They claimed damages for the psychological injuries they suffered when they were notified of the potential exposure and that, even though the risk of contracting TB was low, they should be tested - The plaintiffs submitted that if their claim succeeded, this would be an appropriate case to award aggregate damages for the class under s. 24(1) of the Class Proceedings Act without proof of the damages suffered by individual plaintiff class members - The Ontario Court of Appeal opined that the trial judge was correct in finding aggregate damages inappropriate - Given the nature of the claims advanced, assessment of damages required proof of the harm suffered by each individual class member - The plaintiffs' claims were inherently individual in nature and could not reasonably be determined without proof of each individual injury - See paragraphs 70 to 74.

Practice - Topic 7029

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Novel or important point - [See Practice - Topic 7053.1 ].

Practice - Topic 7029.5

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Public interest or test case - [See Practice - Topic 7053.1 ].

Practice - Topic 7053.1

Costs - Party and party costs - Entitlement to party and party costs - Class or representative actions - On separate occasions in 2003 and 2004, thousands of persons at the Lakeridge's health facilities were potentially exposed to two persons with tuberculosis (TB) - Notices were sent to those persons advising that there was little risk that they contracted TB, but that they should be tested - Two class actions were commenced by the plaintiffs on behalf of persons who received notices - The actions alleged that Lakeridge and the two treating doctors were negligent in failing to properly diagnose the two patients' TB and in failing to take adequate steps to prevent the spread of TB - There were three classes: (1) persons infected with TB; (2) persons not infected; and (3) family members of the above two classes with derivative claims under the Family Law Act - The uninfected class and their family members claimed damages for alleged psychological harm resulting from being told of the possibility of TB infection - The trial judge allowed the defendants' rule 20 application for summary judgment dismissing the psychological injuries claims - They failed to reach the threshold to be compensable - The judge awarded Lakeridge partial indemnity costs of $180,000 and the defendant doctors $80,000 - The uninfected class appealed the costs award, arguing that the issues were novel, qualified as a test case, involved matters of public interest, and provided access to justice to a vulnerable class of persons - The Ontario Court of Appeal held that there was no basis for appellate intervention - The threshold for compensable psychological injuries was not novel or a test case - The court held that given the detailed and comprehensive reasons provided by the judge and the dubious and speculative nature of the damage claims advanced, there was no justification for moving from the "loser pays" rule in a class action - See paragraphs 77 to 80.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See Torts - Topic 8703 ].

Torts - Topic 8703

Duty of care - Particular relationships - Claims for nervous shock and emotional suffering - Psychiatric illness - The plaintiffs were persons potentially exposed to patients with tuberculosis (TB) from two TB infected patients at the defendant's health facilities - The plaintiffs were notified by the defendant of the potential exposure, the limited risk of contracting TB and the advisability of getting tested - None of the plaintiffs became infected, but they claimed damages for the alleged psychological harm they suffered upon receipt of the notification - The trial judge held that the defendant did not owe the plaintiffs a duty of care, because there was no previously recognized duty to the plaintiffs to prevent psychological injury incidental to giving notice of possible exposure to TB and no duty imposed on an application of the Cooper/Anns test - The Ontario Court of Appeal disagreed - The judge erred in describing the duty - The proper description was whether the defendants owed the plaintiffs a duty to take appropriate steps to prevent the potential transmission of TB - That was a previously recognized duty of care, so resort to the Cooper/Anns test was unnecessary - The defendant had conceded that it owed a duty of care to patients and visitors at its facilities to take reasonable care to prevent the transmission of infectious diseases - Whether the type of psychological injury suffered was compensable in law was a separate issue from whether a duty of care existed - The judge conflated the two separate issues - See paragraphs 29 to 38.

Torts - Topic 8711

Duty of care - Particular relationships - Claims for nervous shock and emotional suffering - Negligent infliction of - [See Torts - Topic 8703 ].

Cases Noticed:

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, refd to. [para. 18].

Cooper v. Hobart - see Cooper v. Registrar of Mortgage Brokers (B.C.) et al.

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 18].

Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114; 375 N.R. 81; 238 O.A.C. 130, refd to. [para. 34].

Hinz v. Berry, [1970] 1 All E.R. 1074 (C.A.), refd to. [para. 45].

Duwyn et al. v. Kaprielian (1978), 22 O.R.(2d) 736 (C.A.), refd to. [para. 46].

Koerfer v. Davies (c.o.b. Caeleon Farms), [1994] O.J. No. 1408 (C.A.), refd to. [para. 46].

White et al. v. Chief Constable of South Yorkshire et al., [1999] 2 A.C. 455; 234 N.R. 121 (H.L.), refd to. [para. 48].

Tame v. New South Wales (2002), 211 C.L.R. 317 (Aust. H.C.), refd to. [para. 49].

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. 50].

McDermott v. Ramadanovic Estate (1988), 44 C.C.L.T. 249 (B.C.S.C.), refd to. [para. 51].

Rhodes v. Canadian National Railway (1990), 75 D.L.R.(4th) 248 (B.C.C.A.), refd to. [para. 51].

Graham v. MacMillan (2003), 179 B.C.A.C. 309; 295 W.A.C. 309; 15 C.C.L.T.(3d) 155 (C.A.), refd to. [para. 51].

Mason v. Westside Cemeteries Ltd. (1996), 135 D.L.R.(4th) 361 (Ont. Gen. Div.), refd to. [para. 52].

Vanek v. Great Atlantic & Pacific Co. of Canada Ltd. et al. (1997), 39 O.T.C. 54 (Gen. Div.), revd. (1999), 127 O.A.C. 286; 48 O.R.(3d) 228 (C.A.), leave to appeal denied (2000), 264 N.R. 191; 145 O.A.C. 200 (S.C.C.), refd to. [para. 53].

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. 56].

Fakhri et al. v. Capers Community Markets (2004), 203 B.C.A.C. 227; 332 W.A.C. 227 (C.A.), refd to. [para. 57].

Kotai v. Ship Queen of the North et al., [2009] B.C.T.C. Uned. 1405; 70 C.C.L.T.(3d) 221 (S.C.), refd to. [para. 58].

Frazer et al. v. Haukioja (2010), 261 O.A.C. 138; 101 O.R.(3d) 528 (C.A.), refd to. [para. 58].

Bywater v. Toronto Transit Commission (1998), 83 O.T.C. 1; 27 C.P.C.(4th) 172 (Gen. Div.), refd to. [para. 71].

Caputo et al. v. Imperial Tobacco Ltd. et al., [2004] O.T.C. 112; 236 D.L.R.(4th) 348 (Sup. Ct.), refd to. [para. 71].

Statutes Noticed:

Class Proceedings Act, S.O. 1992, c. 6, sect. 24(1) [para. 70]; sect. 31(1) [para. 77].

Authors and Works Noticed:

Bélanger-Hardy, Louise, Droit et émotion: réflexion novatrice sur le préjudice moral, in Critical Torts (2009), pp. 221 to 225 [para. 59].

Butler, Des, Damages for Psychiatric Injuries (2004), pp. 135, 136 [para. 59].

Campbell, D. Spencer, and Montigny, Chris, Psychological Harm and Tort Law: Reassessing the Legal Test for Liability, in Annual Review of Civil Litigation (2003), pp. 145, 146 [para. 59].

Linden, Allen M., and Fedthusen, Bruce, Canadian Tort Law (8th Ed. 2006), pp. 402 [para. 54]; 425, 426 [para. 39]; 439, 440 [para. 59].

Osborne, Philip H., The Law of Torts (3rd Ed. 2007), pp. 82 to 89 [para. 59].

Counsel:

Kirk Baert and Jonathan Ptak, for the plaintiffs/appellants;

Barry Glaspell and Tanya Goldberg, for Lakeridge Health Corp.;

Mary Thomson and Belinda Bain, for David J. Ross and Hak Ming Chiu

Leah Price, for the intervenor, Law Foundation of Ontario.

This appeal was heard on December 6-7, 2010, before Winkler, C.J.O., Moldaver, Feldman, Sharpe and Simmons, JJ.A., of the Ontario Court of Appeal.

On January 21, 2011, Sharpe, J.A., released the following judgment for the Court of Appeal.