Paxton v. Ramji, 2008 ONCA 697

• Judge: Moldaver, Feldman and Juriansz, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: October 14, 2008
• Jurisdiction: Ontario
• Citations: 2008 ONCA 697;(2008), 242 O.A.C. 34 (CA)

Paxton v. Ramji (2008), 242 O.A.C. 34 (CA)

MLB headnote and full text

Temp. Cite: [2008] O.A.C. TBEd. OC.055

Dawn Paxton, Paul Paxton, Jaime Paxton, a minor by her Litigation Guardian, Dawn Paxton, Kyle Paxton, a minor by his Litigation Guardian, Dawn Paxton, Tyler Paxton, a minor by his Litigation Guardian, Dawn Paxton, Jordynn Paxton, a minor by his Litigation Guardian, Dawn Paxton (plaintiffs/appellants/respondents by way of cross-appeal) v. Shaffiq Ramji (defendant/respondent/appellant by way of cross-appeal)

(C45264; 2008 ONCA 697)

Indexed As: Paxton v. Ramji

Ontario Court of Appeal

Moldaver, Feldman and Juriansz, JJ.A.

October 14, 2008.

Summary:

The acne drug, Accutane, was a teratogenic drug that carried the risk of causing fetal malformation if taken during or near pregnancy. A doctor prescribed Accutane to Paxton, on the understanding that her husband had a successful vasectomy four and a half years earlier. Paxton became pregnant while on Accutane. She had no sexual partners other than her husband. The child was born with considerable damage caused by Accutane. The child sued the doctor and her parents and siblings brought derivative claims under the Family Law Act.

The Ontario Superior Court, in a decision reported [2006] O.T.C. 301, found that the doctor owed a duty of care to the child before conception not to prescribe Accutane to her mother without taking all reasonable steps to ensure that the mother would not become pregnant while taking the drug. However, the trial judge also found that the doctor met the standard of care by relying on the father's vasectomy as an effective form of birth control. The trial judge thus dismissed the child's action. The child and her parents and siblings appealed.

The Ontario Court of Appeal dismissed the appeal. The court agreed with the trial judge that the action should be dismissed, but on the basis that the doctor owed no duty of care to the child.

Infants - Topic 105

Foetus - Juridical personality (i.e., whether foetus a person) - [See second Medicine - Topic 4241.3 ].

Medicine - Topic 4241.3

Liability of practitioners - Negligence or fault - Duty of care - The acne drug, Accutane, was a teratogenic drug that carried the risk of causing fetal malformation if taken during or near pregnancy - A doctor prescribed Accutane to Paxton, on the understanding that her husband had a successful vasectomy four and a half years earlier - Paxton became pregnant while on Accutane - She had no sexual partners other than her husband - The child was born with considerable damage caused by Accutane - The child sued the doctor - The action was dismissed at trial - The child appealed - The Ontario Court of Appeal dismissed the appeal, on the basis that the doctor owed no duty of care to the child - The court held that its decision did not turn on whether the claim could be characterized as a claim for damages for wrongful life, which would amount to asking the wrong question - Rather, the case had to be analysed using the "Anns test" (i.e., a duty of care analysis) - Applying the first stage of the "Anns test", there was no prima facie duty of care owed by the doctor to the future child (i.e., while the potential harm to the fetus while in utero from exposure to Accutane was clearly foreseeable, there was not sufficient proximity between the doctor and the future child) - The court held that even if a prima facie duty existed, residual policy considerations at the second stage of the "Anns test" made the imposition of the proposed duty unwise - See paragraphs 1 to 88.

Medicine - Topic 4241.3

Liability of practitioners - Negligence or fault - Duty of care - The Ontario Court of Appeal stated that "The question of a doctor's legal proximity with a future child (whether conceived or not yet conceived) at the time of the doctor's impugned conduct has been considered by Canadian courts in a number of contexts. It is important to keep in mind that, in discussing a duty of care that may be owed to a future child, these types of claims only arise where the child is born alive, since only a child who is born alive can assert a cause of action. As McLachlin, J., stated in Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925, at p. 942: 'A child may sue in tort for injury caused before birth. However, only when the child is born does it have the legal status to sue and damages are assessed only as of the date of birth'" - See paragraph 38.

Medicine - Topic 4241.3

Liability of practitioners - Negligence or fault - Duty of care - The Ontario Court of Appeal discussed whether a doctor owed a tort law duty of care to a future child (i.e., a child subsequently born) of the doctor's patient - The court stated that as of October 2008, there was no settled jurisprudence in Canada on the question of whether a doctor could be in a proximate relationship with a future child who was not yet conceived or born at the time of the doctor's impugned conduct - The proposed duty of care did not fall within an established category of relationship giving rise to a duty of care, nor could an existing category be extended by analogy - The court therefore considered the proposed duty to be a novel one, which had to be analysed with the two-stage "Anns test" to determine whether the proposed duty of care should be recognized at law - See paragraphs 38 to 59.

Medicine - Topic 4241.3

Liability of practitioners - Negligence or fault - Duty of care - The Ontario Court of Appeal stated that the issue of whether a doctor owed a tort law duty of care to a future child (i.e., a child subsequently born) of the doctor's patient had to be determined by applying the two-stage "Anns test" - At stage one (i.e., the determination of whether there was a prima facie duty of care), the court held that the question of reasonable foreseeability of possible harm to a future child by actions or omissions of the mother's doctor in prescribing teratogenic medication (in this case the acne medication, Accutane) to the mother was not a difficult one - The potential harm to a fetus while in utero from exposure to Accutane was clearly foreseeable - The court stated that as long as there was the potential for a future child to be born who could be affected by a teratogenic drug being prescribed to a woman who was of childbearing capacity, then at the first stage of the Anns test, the harm to that future child was reasonably foreseeable - The court held, however, that policy considerations militated against a finding of the necessary proximity between the doctor and the future child - Thus no prima facie duty of care arose - See paragraphs 60 to 63.

Medicine - Topic 4241.3

Liability of practitioners - Negligence or fault - Duty of care - The Ontario Court of Appeal stated that the issue of whether a doctor owed a tort law duty of care to a future child (i.e., a child subsequently born) of the doctor's patient had to be determined by applying the two-stage "Anns test" - At stage one (i.e., the determination of whether there was a prima facie duty of care), the court held that as long as there was the potential for a future child to be born who could be affected by a teratogenic drug being prescribed to a woman who was of childbearing capacity, then at the first stage of the Anns test, the harm to that future child was reasonably foreseeable - The court held, however, that policy considerations, such as the conflicting interests of the fetus and the mother, militated against a finding of the necessary proximity between the doctor and the future child - Such conflicting duties could have an undesirable chilling effect on doctors (i.e., imposition of a duty to the patient's future child in addition to the existing duty to the female patient would create a conflict of duties that could prompt doctors to offer treatment to some female patients in a way that might deprive them of their autonomy and freedom of informed choice in their medical care) - Another policy consideration that militated against a finding of a proximate relationship between a doctor and a future child arose from the indirect aspect of that relationship (i.e., the doctor could not advise or take instructions from a future child, nor could the doctor be in a position to fulfill a duty of care to take all reasonable precautions to protect a future child from harm caused by a teratogenic drug) - Thus, there was no prima facie duty of care - See paragraphs 64 to 76.

Medicine - Topic 4241.3

Liability of practitioners - Negligence or fault - Duty of care - The Ontario Court of Appeal stated that the issue of whether a doctor owed a tort law duty of care to a future child (i.e., a child subsequently born) of the doctor's patient had to be determined by applying the two-stage "Anns test" - The court held that, with respect to the first stage of the test, no prima facie duty of care was established (i.e., while the test of reasonable foreseeability was met, sufficient proximity was not established between the mother's doctor and a future child) - The court stated that even if it had been prepared to conclude that a prima facie duty of care arose, residual policy considerations at the second stage of the "Anns test" made the imposition of the proposed duty unwise - Policy considerations that negatived the imposition of the proposed duty of care, included interference with a doctor's existing legal obligations to the patient and implications for society as a whole such as potential interference with a woman's right, in consultation with her doctor, to choose to abort a fetus and with society's recognition of the need to preserve a woman's "bodily integrity, privacy and autonomy rights" - See paragraphs 77 to 79.

Medicine - Topic 4241.3

Liability of practitioners - Negligence or fault - Duty of care - The Ontario Court of Appeal held, on the basis of the "Anns test", that a doctor did not owe a tort law duty of care to a future child (i.e., a child subsequently born) of the doctor's patient - The court acknowledged that there were potentially undesirable consequences to society if such a duty was not recognized - For example, a child born with disabilities as a result of medical treatment that would have been actionable in negligence if a duty of care were recognized will not be able to receive full compensation for the damage suffered, including the cost of lifetime care, loss of income and pain and suffering - The court stated that that was a serious concern, which was only somewhat mitigated by the compensation that could be claimed by the parents from the doctor for the breach of duty to them both, or only to the mother, at least for the ongoing cost of the care of the child - The court stated that "unfortunately, whenever the court concludes that there is no duty of care, a party who has been affected by another's conduct will not be able to recover in tort for the loss. In those situations, if there is to be a remedy, it is best left to the legislature to create and implement. It is for the legislature to consider and assess all of the policy issues and to determine whether and in what circumstances a remedy should be available to a child born with disabilities as a result of the conduct of the mother's doctor, as well as the nature and extent of any remedy" - See paragraphs 80 and 81.

Medicine - Topic 4241.3

Liability of practitioners - Negligence or fault - Duty of care - The Ontario Court of Appeal held that, on the basis of the "Anns test", a doctor did not owe a tort law duty of care to a future child (i.e., a child subsequently born) of the doctor's patient - The court acknowledged that there were potentially undesirable consequences to society if such a duty was not recognized - One such issue being how to protect society's interest in ensuring that doctors met the standard of care when prescribing a teratogenic drug (in this case the acne drug, Accutane) to a woman of childbearing capacity - The court stated that there were two answers to this: (1) a doctor owed a duty to the patient to properly prescribe Accutane and provide full information about the risks and if the doctor breached that duty by failing to meet the standard of care for prescribing Accutane, the doctor would be liable to the mother for the damages she suffered as a consequence of giving birth to a child with disabilities caused by the drug; and (2) doctors, as professionals, had professional and ethical responsibilities and obligations to maintain prescribed standards of practice - The court stated therefore, that even without imposing a duty of care on a doctor to a future child of a female patient, there were safeguards in place, and ways to improve these safeguards as needed, to protect society's interest in preventing children from being unnecessarily affected by Accutane and other teratogenic drugs - See paragraphs 80 to 85.

Medicine - Topic 4242

Liability of practitioners - Negligence or fault - Standard of care - [See eighth Medicine - Topic 4241.3 ].

Medicine - Topic 4244.2

Liability of practitioners - Negligence or fault - Treatment with or withdrawal from drugs (incl. side effects) - [See first Medicine - Topic 4241.3 ].

Medicine - Topic 4255.2

Liability of practitioners - Negligence or fault - Wrongful birth or wrongful life - The Ontario Court of Appeal distinguished between claims for wrongful birth and claims for wrongful life - The court stated that "Wrongful life claims are not to be confused with claims labeled wrongful birth. Actions for wrongful birth are brought by the parents (rather than by the child) who claim that their child would not have been conceived or born but for the doctor's negligence. In such claims, the parents seek damages associated with the birth and care of a child. Wrongful birth claims may arise from the birth of a healthy, but unplanned, child as in cases where a doctor is alleged to have negligently performed a sterilization procedure. More commonly, wrongful birth claims involve the birth of a disabled child, as in cases where parents would have elected not to conceive a child had they received accurate genetic counseling about the likelihood that their child would be born with a disability, or to abort a child had they received advice regarding harm that can be caused in utero by such diseases as Rubella. International courts have generally allowed claims by parents for wrongful birth, but have divided on what damages are recoverable" - See paragraph 27.

Medicine - Topic 4255.2

Liability of practitioners - Negligence or fault - Wrongful birth or wrongful life - The Ontario Court of Appeal noted that in Canada, where claims against medical professionals had been brought by children born with disabilities, some courts approached such claims from the vantage point of whether the claim was accurately characterized as one for wrongful life which was not actionable - If the claim was found not to attract the wrongful life label, then courts had allowed a claim for the injury the doctor caused to the child before birth - The court opined that by asking whether or not the claim before the court should be characterized as one for wrongful life, Canadian courts have asked the wrong question - Rather, in Canada, the governing tort law analysis for determining whether a person would be held liable in negligence for harm done to another was that mandated by the Supreme Court of Canada in a line of cases following the decision of the House of Lords in Anns v. Merton London Borough Council (1978), beginning with Kamloops v. Nielson (1984) and including a number of other cases since (see paragraph 29) - According to that authority, the first question a court must ask is whether there is a duty of care owed by the defendant to the plaintiff - Where a duty of care is found to exist, the court will go on to determine the standard of care and whether the defendant met that standard - See paragraphs 25 to 37.

Medicine - Topic 4255.2

Liability of practitioners - Negligence or fault - Wrongful birth or wrongful life - [See first Medicine - Topic 4241.3 ].

Medicine - Topic 4260.7

Liability of practitioners - Negligence or fault - Duty of care to foetus - [See all Medicine - Topic 4241.3 ].

Practice - Topic 132

Persons who can sue and be sued - Infants - Foetus - [See second Medicine - Topic 4241.3 ].

Torts - Topic 76

Negligence - Duty of care - General principles - The Ontario Court of Appeal reviewed the process for determining whether a duty of care existed - First it had to be determined whether the proposed cause of action fit within an established category of relationship giving rise to a duty of care - Where the relationship between the plaintiff and defendant was of a type that had already been judicially recognized as giving rise to a duty of care, or analogous thereto, a court could usually infer that sufficient proximity was present and that if the risk of injury was foreseeable, a prima facie duty of care would arise - If, however, the proposed duty of care was novel then the court had to conduct the "Anns test", to determine whether the alleged wrongdoer owed a duty of care to the plaintiff - That test included three components which were considered in a two-stage process: (1) reasonable foreseeability of harm; (2) proximity; and (3) policy factor - "The first stage determines whether there is a prima facie duty of care by analyzing reasonable foreseeability and whether there is a sufficiently close and direct relationship of proximity, including policy considerations that affect the relationship. The second stage considers whether, despite finding a prima facie duty of care, there are residual policy reasons to reject a duty of care" - See paragraphs 30 to 36.

Torts - Topic 77

Negligence - Duty of care - Relationship required to raise duty of care - [See first Medicine - Topic 4241.3 and Torts - Topic 76 ].

Torts - Topic 89

Negligence - Duty of care - To children - [See first Medicine - Topic 4241.3 ].

Torts - Topic 8801

Duty of care - Particular relationships - Claims for prenatal injuries (incl. wrongful birth or wrongful life) - General - [See all Medicine - Topic 4241.3 ].

Cases Noticed:

Lacroix v. Dominique (2001), 156 Man.R.(2d) 262; 246 W.A.C. 262; 202 D.L.R.(4th) 121 (C.A.), leave to appeal refused (2002), 289 N.R. 202; 163 Man.R.(2d) 247; 269 W.A.C. 247 (S.C.C.), refd to. [para. 19].

Mickle v. Salvation Army Grace Hospital (1988), 166 D.L.R.(4th) 743 (Ont. Gen. Div.), refd to. [para. 25, footnote 4].

Arndt et al. v. Smith, [1994] B.C.T.C. Uned. 688; [1994] 8 W.W.R. 568 (S.C.), revd. in part (1995), 61 B.C.A.C. 57; 100 W.A.C. 57 (C.A.), revd. [1997] 2 S.C.R. 539; 213 N.R. 243; 92 B.C.A.C. 185; 150 W.A.C. 185, refd to. [para. 25, footnote 4].

Jones et al. v. Rostvig (1999), 7 B.C.T.C. 188; 44 C.C.L.T.(2d) 313 (S.C.), refd to. [para. 25, footnote 4].

Dehler v. Ottawa Civic Hospital (1979), 101 D.L.R.(3d) 686 (Ont. H.C.), affd. (1980), 117 D.L.R.(3d) 512 (C.A.), refd to. [para. 25, footnote 4].

McKay v. Essex Area Health Authority, [1982] 2 All E.R. 771 (C.A.), refd to. [para. 25, footnote 4].

Kush v. Lloyd (1992), 616 So.2d 415 (Fla.), refd to. [para. 25, footnote 4].

Viccaro v. Milunsky (1990), 551 N.E.2d 8 (Mass.), refd to. [para. 25, footnote 4].

Garrison v. Medical Center of Delaware Inc. (1989), 581 A.2d 288 (Del.), refd to. [para. 25, footnote 4].

Lininger v. Eisenbaum (1988), 764 P.2d 1202 (Colo.), refd to. [para. 25, footnote 4].

Bruggeman v. Schimke (1986), 718 P.2d 635 (Kan.), refd to. [para. 25, footnote 4].

Procanik v. Cillo (1984), 478 A.2d 755 (N.J.S.C.), refd to. [para. 25, footnote 4].

Nelson v. Kruzen (1984), 678 S.W.2d 918 (Tex.), refd to. [para. 25, footnote 4].

Cockrum v. Baumgartner (1983), 447 N.E.2d 385 (Ill.), refd to. [para. 25, footnote 4].

Harbeson v. Parke-Davis Inc. (1983), 656 P.2d 483 (Wash.), refd to. [para. 25, footnote 4].

Turpin v. Sortini (1982), 643 P.2d 954 (Cal.), refd to. [para. 25, footnote 4].

Becker v. Schwartz (1978), 386 N.E.2d 807 (N.Y.), refd to. [para. 25, footnote 4].

Bannerman v. Mills (1991), Aust. Torts Rpts. ¶ 81-079 (N.S.W.S.C.), refd to. [para. 25, footnote 4].

Harriton v. Stephens, [2004] N.S.W.L.R. 694 (C.A.), affd. (2006), 226 C.L.R. 52 (Aust. H.C.), refd to. [para. 25, footnote 4].

Waller v. James (2006), 226 C.L.R. 136 (Aust. H.C.), refd to. [para. 25, footnote 4].

Zeitsov v. Katz (1986), 40(2) P.D. 85 (Isr. S.C.), refd to. [para. 25, footnote 4].

Curlender v. Bioscience Laboratories (1988), 106 Cal. App.3d 811 (C.A.), refd to. [para. 26, footnote 5].

Kealey v. Berezowski et al. (1996), 9 O.T.C. 1; 136 D.L.R.(4th) 708 (Gen. Div.), refd to. [para. 27, footnote 6].

Cattanach v. Melchior (2003), 215 C.L.R. 1 (Aust. H.C.), refd to. [para. 27, footnote 7].

McFarlane et al. v. Tayside Health Board, [2000] 2 A.C. 59; 250 N.R. 252 (H.L.), refd to. [para. 27, footnote 7].

Rees v. Darlington Memorial Hospital NHS Trust, [2004] 1 A.C. 309; 313 N.R. 135 (H.L.), refd to. [para. 27, footnote 7].

Parkinson v. St. James and Seacroft University Hospital NHS Trust, [2002] 2 Q.B. 266 (C.A.), refd to. [para. 27, footnote 7].

University of Arizona Health Sciences Center v. Superior Court (1983), 667 P.2d 1274 (Ariz.), refd to. [para. 27, footnote 7].

Custodio v. Bauer (1967), 251 Cal. App.2d 303, refd to. [para. 27, footnote 7].

Lovelace Medical Center v. Mendez (1991), 805 P.2d 603 (N.M.), refd to. [para. 27, footnote 7].

Rouse v. Wesley (1992), 494 N.W.2d 7 (Mich.), refd to. [para. 27, footnote 7].

O'Toole v. Greenberg (1985), 477 N.E.2d 445 (N.Y.), refd to. [para. 27, footnote 7].

Krangle v. Brisco et al., [2002] 1 S.C.R. 205; 281 N.R. 88; 161 B.C.A.C. 283; 263 W.A.C. 283, refd to. [para. 27, footnote 7].

Suite v. Cooke, [1993] R.J.Q. 514 (S.C.), affd. [1995] R.J.Q. 2765 (C.A.), refd to. [para. 27, footnote 7].

Design Services Ltd. et al. v. Canada (2008), 374 N.R. 77; 2008 SCC 22, refd to. [para. 29].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 29].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 29].

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

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. 29].

Edwards et al. v. Law Society of Upper Canada et al., [2001] 3 S.C.R. 562; 277 N.R. 145; 153 O.A.C. 388, refd to. [para. 29].

Odhavji Estate et al. v. Woodhouse et al., [2003] 3 S.C.R. 263; 312 N.R. 305; 180 O.A.C. 201, refd to. [para. 29].

Childs v. Desormeaux et al., [2006] 1 S.C.R. 643; 347 N.R. 328; 210 O.A.C. 315, refd to. [para. 29].

Syl Apps Secure Treatment Centre v. B.D. - see B.D. et al. v. Children's Aid Society of Halton Region et al.

B.D. et al. v. Children's Aid Society of Halton Region et al., [2007] 3 S.C.R. 83; 365 N.R. 302; 227 O.A.C. 161, refd to. [para. 29].

Holland v. Saskatchewan et al. (2008), 376 N.R. 316; 311 Sask.R. 197; 428 W.A.C. 197; 2008 SCC 42, refd to. [para. 29].

Mustapha v. Culligan of Canada Ltd. (2008), 375 N.R. 81; 328 O.A.C. 130; 2008 SCC 27, refd to. [para. 30].

Child and Family Services of Winnipeg Northwest v. D.F.G., [1997] 3 S.C.R. 925; 219 N.R. 241; 121 Man.R.(2d) 241; 158 W.A.C. 241, refd to. [para. 38].

Watt v. Rama, [1972] V.R. 353 (Vict. S.C., Full Ct.), refd to. [para. 38, footnote 8].

Cherry v. Borsman (1992), 16 B.C.A.C. 93; 28 W.A.C. 93; 94 D.L.R.(4th) 487 (C.A.), leave to appeal refused [1993] 2 S.C.R. vi; 152 N.R. 240; 32 B.C.A.C. 79; 53 W.A.C. 79, refd to. [para. 40].

Bovingdon et al. v. Hergott (2008), 233 O.A.C. 84; 88 O.R.(3d) 641 (C.A.), leave to appeal refused (2008), 387 N.R. 389(S.C.C.), refd to. [para. 47].

Dobson v. Dobson and Carter, [1999] 2 S.C.R. 753; 242 N.R. 201; 214 N.B.R.(2d) 201; 547 A.P.R. 201, refd to. [para. 54].

Duval v. Seguin (1973), 1 O.R.(2d) 482 (C.A.), refd to. [para. 56].

Ahmed v. Stefaniu (2006), 216 O.A.C. 323; 275 D.L.R.(4th) 101 (C.A.), refd to. [para. 58].

Spillane (Litigation Guardian of) v. Wasserman (1992), 13 C.C.L.T.(2d) 267 (Ont. Gen. Div.), refd to. [para. 58].

Urbanski v. Patel (1978), 84 D.L.R.(3d) 650 (Man. Q.B.), refd to. [para. 58].

Healey v. Lakeridge Health Corp. et al., [2006] O.T.C. 981; 38 C.P.C.(6th) 145 (Sup. Ct.), refd to. [para. 58, footnote 11].

Authors and Works Noticed:

Andresen, Margot, Accutane registry compulsory in US, but not Canada (2006), C.M.A.J. 174(12):1701, generally [para. 84].

Stretton, Dean, Wrongful Life and the Logic of Non-Existence (2006), 30(3) Melbourne U. L. Rev. 972, p. 973 [para. 25].

Counsel:

Paul J. Pape and Susan M. Chapman, for the appellants/respondents by way of cross-appeal;

Darryl A. Cruz and Sarit E. Batner, for the respondent/appellant by way of cross-appeal.

This appeal was heard on February 25-26, 2008, by Moldaver, Feldman and Juriansz, JJ.A., of the Ontario Court of Appeal. The following decision of the court was delivered by Feldman, J.A., on October 14, 2008.