Buelow v. Morrissey, 2013 ABQB 277

Court of Queen ’ s Bench of Alberta Citation: Buelow v. Morrissey, 2013 ABQB 277 Date: 20130507 Docket: 1003 15638 Registry: Edmonton Between: Jodi Buelow and Kim Bordignon, Personal Representatives of the Estate of Carol Ann Pifko, deceased, Jodi Buelow and Kim Bordignon Plaintiffs - and - Dr. John T. Morrissey, Dr. Douglas G. Faulder, Dr. Asad Brahim, Dr. Rebeccah Rosenblum, Dr. Luke Savage, Dr. Leo E. Malowany, Dr. Rith Chea, Alberta Health Services and Capital Care Group Inc.

Defendants “ Brought Under the Class Proceedings Act ” _______________________________________________________ Reasons for Decision of the Associate Chief Justice J.D. Rooke _______________________________________________________ I. Introduction [ 1 ] The application of the Plaintiffs for certification of this class proceeding is dismissed, with costs, leaving the action as a stand alone private individual action by the Plaintiffs against the Defendants. [1]

[ 2 ] The Plaintiffs, Jodi Buelow and Kim Bordignon, are the daughters and personal representatives of the Deceased (collectively “ the Plaintiffs ” or “ the Estate ” ).

The action is brought on behalf of the Deceased as a class proceeding, and: ... claims on behalf of the Class members damages arising from the negligent prescription of antipsychotic medications (Seroquel and Zyprexa) to elderly patients with dementia, despite clear warnings from Health Canada that these drugs are not approved for such use, and in circumstances where the drugs have no proven efficacy for treating elderly persons with dementia. [Plaintiffs ’ Brief, para 1 - emphasis added ] II.

Background Facts (and Some Early Observations) [ 3 ] The parties provided a significant narrative of the history of the Deceased – more than necessary for these Reasons – but suffice it to say that Carol Ann Pifko ( “ Pifko ” or “ Deceased ” ), died on May 1, 2009, at age 61 (DOB July 5, 1947).

At the time of her death she had been diagnosed with afflictions which included Alzheimer ’ s dementia, corticobasal degeneration, Parkinson ’ s Disease, mild (later severely impaired) cognitive disorder, and (on or after April 28, 2009) a suspected/differential diagnosis, although “not a classic presentation”, of neuroleptic malignant syndrome (NMS). [ 4 ] On and after March 15, 2009, at the direction, and with the continuance, of one or more of the Defendant Physicians ( “ Physicians ” ), the Deceased started a prescription of a drug called Seroquel (also known as Quetiapine), as she did, on April 24, 2009, with Zyprexa (also known as Olanzapine).

The dates, times, dosage administration, knowledge and communication about these drugs, within a class known as antipsychotic drugs (collectively “ AD ” or “ ADs ” ), are details that may be relevant for any resulting personal litigation with which the Plaintiffs are left, but are not specifically germane for the purpose of these Reasons. [ 5 ] The Plaintiffs and the Defendant Physicians agreed that “ [t]he experts [2] on both sides . . . agree [these AD] have serious and harmful side-effects, and elderly patients with dementia are particularly at risk. ” The Plaintiffs pointed to governmental and other authorities [3] , including “ Boxed Warnings ” , which have warned of the risks.

The Physicians argued that the warnings are out of date, but in any event, are only applicable to “ geriatric ” patients, a term “ specifically defined as people ‘ more than 65 years of age. ’ ” [4] Significantly, Ms. Pifko was not 65 years old when she died. These warnings apply to cardiovascular and infection dangers, which did not manifest themselves in this case.

Nevertheless, it appears undisputed that NMS is a potential side effect of these AD and that NMS is potentially lethal/fatal. [ 6 ] At all times from the fall of 2007 or early 2008 until her death, Pifko was a patient of, or resident in, facilities operated by Alberta Health Services (only from April 28, 2009) or Capital Care Group Inc. (Capital Care) [5] (collectively “ Care Facilities ” ). [ 7 ] It is apparent that the AD were not administered as a treatment for any condition Pifko suffered, but rather as a “ chemical restraint ” , which the Defendant, Capital Care, defined as “ the use of medication to alter or reduce a behavior or movement rather than to treat the underlying cause of behavior or medication ” [ emphasis added ].

This reason for administering AD was apparent to the Court from the beginning of the oral argument (TR 10/5-6, 10-11). Indeed, the Physicians pointed to evidence that it was only due to Pifko ’ s “ increased paranoia and hallucinations (i.e. psychoses) ” between January and March 2009 that a prescription of AD resulted for amelioration - not treatment - of her behavior; and “ the medication was given to address [her] psychoses and no other purpose ” (Physicians Brief, paras 80-82).

As we shall shortly see, this recognition is significant because the Plaintiffs ’ have brought this action in the context of treatment , and much of their arguments, based on warnings and experts, relate to treatment, not the use of AD as chemical restraints . The Plaintiffs ’ arguments demonstrated that the manufacturers of these ADs refer to their benefit as chemical restraints only.

Apparently, their marketing practices in this respect have been the subject of some prosecutions and successful civil claims brought by governments in the US. [ 8 ] The Autopsy Report of the Deceased confirmed that she died of NMS due to an adverse or allergic reaction to Olanzapine. [ 9 ] The finding of death from NMS due to an adverse allergic reaction caused the Physicians ’ Counsel to describe the Pifko incident as a “ very unique ” case, such that the proposed representative plaintiff is “ not a representative plaintiff at all ” in the context of a

class proceeding. They also argued that by implication, the proposed representative plaintiff only represents the Deceased personally; and in the result, the issues proposed for resolution are not common issues since they have to be dealt with on a patient-by-patient basis (TR 8/9 -10, 21-22). In oral argument, Counsel for the Care Facilities also argued that, at best, any liability is personal and individual as the evidence suggests that risk of an adverse reaction is very low when AD is prescribed.

The finding of an “ adverse reaction ” is a key finding that highlights the individual aspect of (or experience in) this case, which apparently is very different from the experience that is common to other patients for whom ADs are prescribed (TR 8/40-9/9; 36/17-31). [ 10 ] Counsel for the Care Facilities stated that NMS is a condition that “is a rare, individual idosyncratic reaction not merely to the drugs in question here but to all typical and atypical antipsychotropic medications” (TR 9/8-9).

Further, in oral argument, Counsel for the Physicians related that the rarity of the reaction is such that generally, patients who take the drugs, regardless of the category or makeup, have “less than or equal to .0025 percent chance of having this reaction.” In other words, they argued that patients’ reaction to the drug is not related to and has nothing to do with age or dementia, but due to the nature of the patient; and yet the Plaintiffs try to bring a class proceeding with a class focussed on age and dementia (TR 56/21-27; 58/23-35; 65/35-41; & 68/ 28-29). [ 11 ] The circumstances regarding Pifko ’ s adverse reaction and the purpose of administering the AD are key to my conclusion in this case.

While the evidence would suggest that AD are inherently harmful, they appear to have arguable benefit as a medication to alter or reduce behavior or movement (a chemical restraint ) that outweighs their otherwise harmful effects. Moreover, the Deceased died of an adverse reaction to AD, not due to its anticipated normal, but harmful, effects. There is no evidence that the Deceased or anyone in the proposed class was prescribed AD for treatment . For those in the class who were prescribed AD as a chemical restraint , there is no evidence to suggest that anyone else has a claim.

In effect, right from the beginning no one was “ clamouring ” to be a part of the class proceeding, and there is clearly no evidence that anyone else in the proposed class has a claim for treatment or an adverse reaction (TR 10/17 - 20 and 28 - 31).

Thus, while Counsel for the Plaintiffs tried to get a certification for a harmful drug, there does not appear to be any evidence that anyone other than the Plaintiffs are complaining. [6] [ 12 ] Early in the oral argument, I put an observation to Counsel for the Plaintiffs that the proposed class in the Statement of Claim does not include the factor of having experienced an adverse reaction to the medication.

To this he responded that the class were still entitled to “ have explained to them the dangers and risks associated with the drugs ” , that they worsen the case for patients with cognitive impairments and “ that these drugs present serious and potentially harmful side effects ” (TR 23/41-24/29; 26/38-27/38). However, in my view, it is not the dangers and the risks that appears to be the real gravamen of the action, but compensable injuries or death arising from the adverse reaction.

In the present case, there is no evidence of death or injury, or even complaints about the “dangers and risks”, never mind cognitive impairment or potentially harmful side effects, other than as it relates to the Deceased. The absence of some evidence on this point makes this matter at bar an individual, stand alone, action.

My queries were further focussed on “whether there is an individual action or a class proceeding” and whether the Plaintiffs (and their Counsel) are not running the risks of: ... [going] through all this rigmarole on procedure for class proceedings [and, at] the end of the day, there’s nobody that is within the class that is affected and interested and cares and has any damages, and [thereby spending] a lot of time on procedure and very little time on the result (TR 29/32-35).

In response, Counsel for the Plaintiffs replied that the “common issues do not need to result in proving liability, and they do not need to result in establishing damages.” And this brought him again in full circle to the argument that “there were more than two” class members in this proceeding; and that indeed, there are approximately one third of all patients in long term care in Edmonton (or about 300) who had been prescribed these medications (TR 29/39-30/5; 32/ 2-5). [ 13 ] But for the problem of the absence of a class of two or more with claims, the proposed class proceeding raises questions including: what is the applicable standard of care in prescribing these ADs?; and, what warnings and cautions should be applied, material risks disclosed, and duties imposed, in prescribing and obtaining informed consent?

These issues will be just as important in a personal action as in a class proceeding, but this action seeks that they be allowed to be raised in the latter context. Thus, the first question is whether or not this action should proceed as a class proceeding? I have concluded it should not. III. Executive

Summary [ 14 ] Thus for these reasons and those that follow, I have concluded that the Plaintiffs have failed to prove that there are two or more potential plaintiffs who have suffered injury from the prescription of AD, or that any other potential class members seek to advance a claim. Counsel for the Plaintiffs argued that there are many people who are prescribed AD and thus the potential class is significant. However, he has failed to establish that anyone, other than the Deceased, has suffered as a result of such prescription. In the result, the certification application is dismissed and the action can proceed as a stand-alone action by the Estate of the Deceased.

[15] Nevertheless, without all the discussions of what has become trite class proceeding principles, I will provisionally provide myviews as to the other certification issues in the hypothetical context of were my findings, as to the absence of a class, different than I havefound. IV. Certification - Absolute Findings [16] The issue in this case is whether the within action should be certified as a class proceeding pursuant to the Class ProceedingsAct, SA 2003, c C - 16.5 (the “Act”), applying predominantly, the criteria in

section 5. The onus of establishing these criteria is on thePlaintiffs, based on demonstrated fact in each case other than the requirement that the pleadings disclose a cause of action: Hollick vMetropolitan Toronto (Municipality), 2001 SCC 68 at para 25, [2001] 3 SCR 158 [Hollick]. [17] These criteria, supported by common statements of the law and addressing issues apparent in this action, need to be analyzed -absolutely in the context of sub-headings A and B below, and provisionally with the remainder. [18] The parties in this action have made extensive written and oral arguments on many points.

Rather than summarizing all ofthose arguments, except for sub-heading B below, I will try to limit these Reasons to the conclusions to which I have come and the briefreasons therefore. A. Cause of Action [19] Section 5(1)(

a) of the Act requires that the Plaintiffs establish that the pleadings disclose a cause of action. [20] The Defendants Physicians “accept[ed] that a reasonable cause of action has been pleaded”, and thus, this ground for grantingcertification is met, as against them (Physicians Brief, para 126). [21] However, the Care Facilities argued that there is no cause of action against them, using the standard which demands theexistence of a “plausible basis in principle and presumed fact for supposing the defendants could be held liable”: Hoffman v MonsantoCanada Ltd Inc, 2007 SKCA 47 at paras 50 - 54 [Hoffman]; Care Facilities Brief, paras 25 - 41.

Care Facilities claimed that theHoffman standard is a higher standard than the “plain and obvious” test referenced in Hollick at para 25.

In reply to Care Facilities’submission, the Plaintiffs contended that the Hoffman standard was “an aberration and does not represent the law in Canada” (PlaintiffsReply Brief, para 5). [22] Based on the application of the Hoffman standard, Care Facilities argued that a “proposed claim in negligence will not becertified against a Defendant where it is established that the Defendant owes no relevant duty of care to the Plaintiff”: Care FacilitiesBrief, para 26), relying on Alberta v Elder Advocates of Alberta Society, 2011 SCC 24 at para 75, [2011] 2 SCR 261 [Elder Advocates].They contended that they owed no duty of care regarding the prescription of medication and obtaining of informed consent as those arenon-delegable duty of the physicians.

They submitted that the Plaintiffs’ action is based on the dissent judgment in Yepremian vScarborough General Hospital (1980), (ON CA), 110 DLR (3d) 513, 28 OR (2d) 492 (Ont CA) [Yepremian]: see,Care Facilities Brief, para 28, relying on Ellen I Picard & Gerald B Robertson, Legal Liability of Doctors and Hospitals in Canada, 4thed (Toronto: Carswell Legal Publications, 2007); Paling v Mander, [1993] OJ No 1205 (Ont Ct J (Gen Div)) Keenan J); see also, TR9/23-29; 36/35-40; 38/15-17; 39/8-13; 43/2-7; 44/22-41.

Moreover, Care Facilities argued that they were not vicariously liable for theDefendant Physicians; and that the Plaintiffs cannot succeed against the Care Facilities on the issue of standard of care of the hospitaland scope of practice as “it has been long-settled law”: Care Facilities Brief, paras 30-31, relying on Jaman Estate v Hussain, 2001MBQB 320 at para 12, [2002] 4 WWR 465, (Morse J); and Yepremian at paras 51, 53; see also, TR 46/13-20. [23] In response, the Plaintiffs noted that they were not alleging that the Care Facilities were prescribing medication, but ratherthat they had a duty to communicate information to their patients (TR 12/24 - 27).

Moreover, the Plaintiffs argued that, having regard tothe vulnerabilities of the class members, a new duty to provide information as to the “risks and harmful side effects associated with” thedrugs (ADs) must be effectively established. The “simple and easy to understand” information and process which should be provided to

patients, along with their involved representatives, about the drugs include: the expected outcomes, potential adverse effects, the signs and symptoms of the adverse effects, drug interactions, advice on how to identify symptoms of adverse effect and report them immediately. The Plaintiffs acknowledged that although they are “pushing the envelope” into a potentially “new area” of the law, there is the need for a judicial determination of this particular issue (TR 45/34-46/7); Plaintiffs Brief, paras 20-21); and the Statement of Claim, paras 81-85). [ 24 ] Although Care Facilities did not bring an application for

summary judgment for dismissal, the Plaintiffs relied on the “plain and obvious” standard/test to argue affirmatively that, at this stage of the proceeding, the Court should not dismiss the action for argued lack of merits; but merely consider whether the pleadings disclose an arguable cause of action in order to assess whether it is plain and obvious that the claim cannot succeed.

The Plaintiffs submitted that it was still open to argue and establish that Care Facilities has the duty to put a system in place and provide information to their patients about Health Canada’s warnings that these (ADs) drugs are controversial (Picard & Robertson at 173; TR 12/40-13/27; 32/29-33). [ 25 ] The Physicians acknowledged that a cause of action has been pleaded, absent claims against certain Physician Defendants as discussed above. On one hand, as it relates to the claim against the Care Facilities, it appears that the existing law makes the Plaintiffs’ claim very tenuous, at the best.

On the other hand, however, it is not such a claim that

summary dismissal is likely available in reality on the plain and obvious test. This scenario, at least, leaves something for the Plaintiffs to argue. Consequently, I find that at this stage and in the absence of an application for

summary judgment, there is at least a potential cause of action to proceed against the Care Facilities. In the result, I would not dismiss certification on this ground of the requirements for certification. B. Identifiable Class of Two or More [ 26 ] Section 5(1)(

b) of the Act requires an identifiable class of two or more persons. [ 27 ] The class definition must be based on objective criteria bearing a rational connection or relationship to the common issues, and not based on the outcome of the litigation: Western Canadian Shopping Centres Inc v Dutton , 2001 SCC 46 at para 38 , [2001] 2 SCR 534, [ Dutton ]; and Windsor v Canadian Pacific Railway Limited , 2007 ABCA 294 at para 18 , 417 AR 200 ( Windsor CA ). [ 28 ] The Plaintiffs in their Statement of Claim set out the proposed class definition to include the following as members: All persons who were prescribed and administered Zyprexa or Seroquel, or both, subsequent to January 1, 2006, provided at the time such persons were prescribed Zyprexa or Seroquel, they were 55 years of age or older, were patients in a Care Facility, and had been diagnosed as having dementia or generalized loss of cognitive and intellectual functions as evidenced by memory impairment plus any one or more of the following: (

i) deficits in attention or concentration; (ii) cognitive deficits of disturbances of aphasia, apraxia or agnosia; (iii) ... Provided further, with respect to the persons described above, any one of the Defendant Physicians was the attending physician for such persons, or prescribed, recommended or approved Zypreza or Seroquel, or both, for such persons as documented in the medical records. (“Fresh as Amended Statement of Claim No. 4” (Statement of Claim), para 28) [ 29 ] Of this proposed class the Plaintiffs argued that: The class definition should be neither unduly narrow nor too broad.

A line must be drawn somewhere in order for the court to determine whether a particular person falls within the class. The Plaintiffs submit that the age 55 [7] is a reasonable cut-off for the definition of elderly.

(Plaintiffs’ Brief, para 112) 1. “Two or More” [30] This has been an issue from the beginning of the oral hearing (TR 10/17 - 31). [31] The Plaintiffs referred to this issue as “numerosity” in oral argument and stated that they “do not know how manyPatients/class members there are at this stage of the litigation” but that they only know that there are “more than two”, based on thequestioning of Iris Neumann on her Affidavit.

They submitted that in terms of these potential members of the class, there are about 1,200to 1,300 patients of Capital Care, typically elderly with chronic disabilities, about 1/3 of whom were prescribed an AD since 2008 (Plaintiffs’ Brief, para 113; Plaintiffs’ Reply Brief to the Care Facilities, para 12; TR 17/1-22/22) and Neumann Transcript, 7/5-11).However, when the transcript is examined all that is acknowledged is that there are “quite a number of people” with dementia.

Merelyhaving dementia does not make a person a member of a class of persons who have experienced the negative effects of ADs or who havebeen prescribed with ADs.

Moreover, contrary to the arguments of the Plaintiffs, this issue of “numerosity” is not a matter to be handledby an adjournment of the proceeding, as it is a clear and mandatory requirement from the beginning (Plaintiffs’ Reply Brief toPhysicians, paras 48 - 51, 53). [32] The Plaintiffs also relied on my statement in an earlier decision that “the identifiable class requirement is a low thresholdissue”: Windsor v Canadian Pacific Railway Ltd, 2006 ABQB 348 at para 91, 402 AR 162 (Windsor QB), aff’d (with minoramendment) 2007 ABCA 294, 417 AR 200. That statement is true and remains so.

However, there must be some evidence of at leasttwo actual class members, not only hypothetical members. [33] The Care Facilities argued that “there is no evidence of anyone who satisfies all six [requirements to be a class member]other than [the Deceased].” Additionally, they argued that since the “[p]laintiffs have also failed to identify anyone who shares thecomplaint alleged in the Statement of Claim”, certification should be denied: Chartrand v General Motors Corp, 2008 BCSC 1781 atpara 53, 75 CPC (6th) 221 (Chartrand), where Martinson J said: It is not enough to point to a group of people ...

There must be some evidence that two or more have a complaint that ... caused them aloss.... There is no evidence of such complaints. Chartrand has significant analogy to the case at bar in the sense that the Plaintiffs in the present case have pointed to other potentialclass members with dementia, without identifying a complaint: Care Facilities Brief, paras 38-39; TR 61/40-62/1. [34] The Physicians argued that in the case before this Court, there is no class of 2 or more persons based in fact.

They contendedthat “[s]howing that a group of people is ‘identifiable’ is not sufficient to render them a ‘class’ for the purposes” of the Act, but ratherthere must be some connection between the class definition and the common issues: TR 52/34 - 38; Mouhteros v DeVry Canada Inc(1998), (ON SC), 41 OR (3d) 63, 22 CPC (4th) 198 (Ont Sup Ct

J) Winkler J; see also, Lau v Bayview LandmarkInc (1999), 40 CPC (4th) 301 at para 23, [1999] OJ No 4060 (Ont Sup Ct J) [Lau]. [35] I note that in Brown v Canadian Imperial Bank of Canada, 2012 ONSC 2377 at paras 6, 201, 24 CPC (7th) 251, Strathy Jfound that the case was not one suitable for certification as a class action in the absence of a common issue; and in obiter dictum statedthat, even if he had otherwise certified on that point, he would not have done so as to the proposed plaintiff class because “there is noevidence at all that any present or former member” of the proposed class other than the Plaintiff had any concern about the substantiveallegations. [36] Further, the Physicians argued that the class must not be described by success (i.e. it must not be merits based), but defined bythe existence of two or more persons who wish to advance a claim: Hollick at para 16.

They also argued that absent two persons, theRepresentative Plaintiff “has the availability of going ahead with her own individual proceeding if she wants to.” The Care Facilitiesintimated the same position (TR 56/7-8; 61/7-10). During oral hearing, an analogy that was used to discuss this argument was the eventof the plane that crashed in the Hudson River in New York. While all the passengers aboard the flight might have a potentially similarclaim, a representative plaintiff would have to establish that there are two or more of the passengers on that plane who actually wished to

pursue a claim before a certification would follow. In effect, it is not sufficient to merely say that those who have no desire to make aclaim could opt out (as “opt out” would be available her); there would need to be at least two passengers willing to pursue a claim (TR64/1 -65/18; 71/9-25). Based on this understanding, I agree with the Physicians’ submission. [37] In Bellaire v Independent Order of Foresters (2004), 5 CPC (6th) 68 at para 27, [2004] OJ No 2242 (Ont Sup Ct J)[Bellaire], Nordheimer J commented that: Section 5(1)(

b) requires an identifiable class of two or more persons.

In my view, that entails placing evidence before the court that thereare other individuals who both share the same complaint as that of the plaintiff and wish to have the complaint litigated through the mechanism of a class proceeding ...[8] I note the suggested requirements that there must be “the same complaint as the plaintiff” and the “wish to have the complaint litigated.”And in highlighting the importance of the latter, Nordheimer J observed, in regard to the case before him, that the “evidence does notestablish that, even if there are common interests, the other complainants wish to have the issue litigated.

Unlike the plaintiff, theseother complainants may well be content with the status quo”: Bellaire at para 29 [emphasis added]. In respect of the matter at bar, thereis no evidence before me of any other individual(

s) who both “share the same complaint as the plaintiff” and “wish to have the complaintlitigated ”; all we have is only conjecture.

The only exception to the requirements mentioned earlier are those cases where the existenceof other class members is obvious: Bellaire at para 30; citing, Taub v Manufacturers Life Insurance Co (1998), (ON SC), 40 OR (3d) 379 at 381 (Ont Gen Div) [Taub], in which Sharpe J referred to “obvious cases” as including situations thatinvolve “the fact of wide-spread harm or complaint is inherent in the claim itself”, “mass disasters” or “wide-spread pollution”; andconcluded that otherwise “there must, at the very least, be some basis in fact for the court to conclude that at least one other claimexists”: Taub at 381. [38] Further, in reference to the same issue, Nordheimer J observed that (paras 31-32): It arose again in Lau [where] Mr.

Justice Winkler said [that]: “However, a class proceeding cannot be created by simply shrouding an individual action with a proposed class. That is to say, it is notsufficient to make a bald assertion that a class exists. The record before the court must contain a sufficient evidentiary basis to establishthe existence of the class.” This concern was repeated in a case similar to the one that is before me here, namely, Zicherman v. Equitable Life Insurance Co. ofCanada, [2000] O.J. No. 5144 (S.C.J.) where Mr. Justice Ferrier said, at para. 7: “... There is no evidence that anyone other than Mr.

Zicherman has raised a cause of action. There is no evidence of anyone other thanMr. Zicherman being willing to engage the courts or assert a cause of action.” (emphasis added) I agree with Winkler J’s position.

And I find that, in essence, this is what the Plaintiffs have done in the present case. [39] Nordheimer J then concluded, very aptly, that (at para 33): In my view, before the extensive process of a class proceeding is engaged, it ought to be clear to the court that there is a real andsubsisting group of persons who are desirous of having their common complaint (assuming there to be a common complaint) determinedthrough that process. The scale and complexity of the class action process ought not to be invoked at the behest, and for the benefit, of asingle complainant.

I find Nordheimer J’s statement manifestly applicable to the circumstances of the present matter.

Atypicality of Ms. Pifko ’ s case [ 40 ] The Physicians argued that “ [t]he facts giving rise to Ms. Pifko's action are sufficiently unique that they do not provide the proper basis for defining a class for the purpose of a class action. ” They noted that the “atypicality of Ms.

Pifko’s case”, including “young onset [of] dementia” (most usual after 65), involved “an atypical dementia in that it was a function of corticobasal degeneration rather than more common causes ” (less than 0.1% of dementia patients) and that she died of NMS (one of 0.1% who do so when contracted through AD), which in itself is a “ rare risk associated with antipsychotics in general rather than being a function of anything to do with dementia. ” The Physicians referred to Ms.

Pifko ’ s situation as “ an atypical case of dementia of an individual who at an early age experienced the development of widespread and fairly severe cognitive decline and psychoses. ” The apparent significance of the latter statements is that the Deceased died because of a catastrophic adverse reaction to the AD, unrelated to her dementia.

In sum, the Physicians argued that the Deceased ’ s “ case is so rare as to be unique. ” I agree that while that may well be the case as a matter of fact, it does not, in itself, mean the lack of a class. [ 41 ] Notably, the Plaintiffs responded that, unlike US authority, the Alberta statute ( Act ) “ does not have a ‘ typicality ’ requirement ” : Rumley v British Columbia , 2001 SCC 69 at para 32 , [2001] 3 SCR 184 [ Rumley ] ; Dutton at para 39 .

Nevertheless, there must be evidence to support a class of two or more. [ 42 ] There was no evidence presented in this case to suggest that any other potential class member had died of NMS due to an adverse reaction to Olanzapine or either of these ADs, or had been specifically harmed by these drugs such as to bring an action based on being prescribed them. On the latter point, it appears that there is no one other than the Plaintiffs, on behalf of the Deceased, who has complained of the negative consequences of the AD, as opposed to the chemical restraint benefits of same.

This was the subject of extensive evidence by the Physicians ’ experts, who talked, inter alia , about the “ needs to balance the risks and the benefits ” of AD on a case-by-case (i.e. individual) basis. [ 43 ] The debate thus focuses on the issue raised during oral argument as to whether this is an individual case of alleged medical malpractice (i.e brought by the Estate), or multiple cases justifying a class proceeding.

In this regard, Counsel for the Plaintiffs acknowledged (perhaps the obvious) in oral hearing that the class definition did not require an adverse reaction to AD as happened to the Deceased, claiming that the issue was the explanation of the dangers of AD, and potential harms beyond such an adverse condition (TR 23/41 - 26/14; 29/41). However, it appears that the specific actual harm that applies to the Deceased is an adverse reaction that caused her death. It may merit pursuit as an individual malpractice action, but does it merit pursuit as a class proceeding?

While the potential harm she might have endured might not be death, there must be evidence of some actual harm that resulted before damages would become recoverable - and, while there might arguably be such in this case (aside from the death) as it relates to the Deceased, but what about others?

Again, the point is that except for the Deceased, there is no evidence of any other second person that is complaining of actual harm with even potentially recoverable damages, or who is seeking a remedy for same. [ 44 ] More specifically, recognizing the prohibition against a results-orientated standard, being 55 or older, in a long-term care facility and suffering from dementia or related impairment, does not describe the issue that the Deceased faced here. Rather the issue she faced, in addition to being prescribed an AD, is that she had a recognized but rare allergy that caused her death.

That, or at least “harm over benefits”, would be a needed criterion for such a class. Even with that broader definition, no one other than the Deceased has been factually established as fitting into it.

Therefore, I find that the Plaintiffs have not pointed to any potential class members who wish to be represented, but have only referred to hypothetical members on the basis of the elderly patients with dementia who are in the Care Facilities. [ 45 ] In the result, I conclude that, in the absence of any evidence that there is at least one other individual in the potential class, the Plaintiffs have not established that there is a second person to whom the class definition applies specifically, as opposed to hypothetically. Plaintiffs ’ alternative arguments based on s 8(

d) of the Act [ 46 ] Alternatively, the Plaintiffs ’ metaphoric “ Hail Mary Pass ” is their reliance on s 8(

d) of the Act , which provides that the Court is not to refuse certification by reason that the number of prospective class members or the identity of each prospective class member has not been ascertained or may not be ascertainable. They argued that based on that statutory provision certification should not

be refused “by reason only” that “the number ... or identity ... has not been ascertained or may not be ascertainable” : Plaintiffs ’ Reply Brief to Physicians, para 52. [ 47 ] However, in my view, s 8(

d) cannot be interpreted to render nugatory the strict requirement of s 5(1)(

b) of the Act which provides that the Court “ must be satisfied ” that “ there is an identifiable class of 2 or more ” actual class members. How then does the Court read the two sections together? The provision of

section 8(

d) of the Act only starts to apply to the situation where more than two persons are already in place. That legislative provision does not obviate the requirement that, at the incipient stage, the Plaintiffs must prove that there are at least two persons (who wish to pursue a claim and be represented), pursuant to s 5(1)(

b) of the Act , before a proceeding is certified as a class proceeding. In other words, while the Plaintiffs do not have to prove the potential, total number of class members (albeit, quantity is potentially relevant to preferable procedure) or their identity, they must establish by evidence that there are at least two persons who would constitute class members, pursuant to s 5(1)(b). (Plaintiffs Extracts, Tab 11, p 3; Plaintiffs’ Brief, paras 114-115). [ 48 ] In effect, as between ss 5(1)(

b) and 8 of the Act , there are two related issues: (

i) the need for at least two class members - (s. 5(1)(b)); and (ii) preferable procedure - (s 8). In the former case, the lack of a second class member is fatal. While in the latter case, the lack of numbers beyond two minimum is not fatal, the lack of potential numbers only going to preferability. [ 49 ] Thus, in regard to the first issue under s 5(1)(

b) of the Act , the absence of this evidence is fatal to the proceeding, and in relation to the second issue under s 8 of the Act , the lack of that evidence makes the preferable procedure to lean more in favour of individual actions rather than class proceedings. 2. Age 55 [ 50 ] While not pertinent in view of my conclusion on the Plaintiff’s failure to establish at least two class members, the Physicians particularly argued that the age of 55 has no basis in fact, having regard to the allegations and the expert evidence relied upon.

That may well be the case, as I find that the authorities relied upon are expressed in a way that suggest that the warning applies to the elderly (over 65), which, the authorities state, is normally the age applicable to those at risk. Indeed, the Deceased herself was not 65 at the time of her death, but rather 61; and was diagnosed with dementia at 58 or 59. The Physicians acknowledged that the Deceased’s “case is rare in that she had very early onset of a very rare dementia.” The Plaintiffs responded to this by making the criterion of age 55 minimum at least an arguable point.

In my view, the age of 55 or 60 (the latter being also acceptable to the Plaintiffs) may be broad enough to take in the exceptions (Plaintiffs’ Reply Brief, paras 1-6, 46; TR 22/41-23/34; 71/40-72/2). I would not deny certification on the basis that 55 is “too broad” given that 55 is only indicative of the age for qualification or the threshold. There need not be evidence that someone that age is an actual member of the class; rather it is somewhat broad, but enough to ensure that someone who might be on the boundary does not miss an opportunity to participate.

In the result, I would accept the Plaintiffs’ fall back definition with a 60 year age qualification. 3. Ancillary Arguments [ 51 ] There are a couple of ancillary arguments to address. First, if there were proof of at least two class members, I find that s 8 of the Act is a complete answer to the Physicians ’ other argument that, in addition to the Deceased, there was not “ any proposed member [who] is ‘ identifiable ’ ” (Physicians Brief, paras 146 - 155, emphasis added ).

In other words, provided that the Plaintiffs establish the existence of at least two (2) persons as proposed class members, the specific identity of the other persons who are prospective class members can follow from the proceedings, and not be a bar to certification. [ 52 ] Second, I find that the lack of access to patient records alleged by the Physicians is not a basis for denying certification, had there been actual evidence of at least two potential plaintiffs (Physicians Brief, paras 148-153). Access to such records is possible under the Alberta Rules of Court , Alta Reg 124/2010.

Although at this point in time, I need not rule on whether or not an application made under the Rules of Court would be successful, it suffices to say that the alleged lack of access to patient records would not be a bar at this stage. [ 53 ] Third, it is additionally asserted by the Physicians that Drs. Chea and Malowany do not fit into the class of defendants to whom the proceeding would apply, because they work exclusively for hospitals, and “ did not practice in, or provide medical services to institutional care patients ” (Physicians Brief, paras 130 - 133; TR 53/12-54/1) .

As noted above, this issue as to the named (and other) Physicians has been resolved as Counsel for the Plaintiffs in a letter to the Court, dated April 16, 2012 confirmed that

“certification is not sought as against the physicians working at the Royal Alexandra Hospital (Drs. Rosenblum, Savage, Malowany andChea).” Thus, as I said, supra, I anticipate Partial Discontinuances of Action, subject to costs, be filed. [54] Fourth, the Physicians argued that the class should be limited to long-term institutional care facilities, not hospitalswhere members of the class might periodically attend as patients for a short period of time. The Plaintiffs responded that by definition“care facilities” include hospitals and nursing homes (Plaintiffs Reply Brief, para 44).

While this does not affect my primary decision, ona provisional basis, I would find that the class definition relates to being a patient in a nursing home or a hospital, and not limited to justlong-term institutional care facilities, and would have otherwise certified on this basis. 4. Conclusion [55] In the result, the application for certification is denied as the Plaintiffs have failed to satisfy the fundamental requirement ofproving that there are “two or more” persons to constitute the proposed members of a class.

Hereinafter, I proceed to consider otherissues provisionally only and I do so on a relatively more cursory basis than if I had not made my earlier decision. The purpose of thispart of my Decision is to outline some determinations that I would have made had I not come to a conclusion which denied certification.In that vein, I have not integrated the oral argument fully on these points but have primarily relied on the written arguments. V.

Certification - Provisional Findings [56] As my decision is to deny certification on the basis that the Plaintiffs have not proved “an identifiable class of two or morepersons” as required by s. 5(1)(

b) of the Act, what follows are, accordingly brief, provisional, findings that would follow if that were notmy conclusion. In the circumstances, I have been intentionally short on reciting all the principles of certification in relation to thesecriteria. C.[9] Common Issues [57] Certification under s 5(1)(

c) of the Act requires that the claims of the prospective class members raise one or more commonissues, whether or not the common issues predominate over issues affecting only individual prospective class members. [58] There are a number of general class proceedings’ principles that relate to common issues in this context, some of which bearrepeating. Common issues include those that are common, but not necessarily identical, issues of fact or law: s 1(

e) of the Act. An issuewill be common only where its resolution is necessary to the resolution of class members’ claims, central to the claims of the class and itsdetermination will advance the class members’ claim in a meaningful way (although s 8 of the Act specifies that not every common issuemust advance the action as against every defendant). Thus, the common issue must be applicable to all members of the plaintiff class.Moreover, while the requirement represents a “low bar”, a common issue should not be framed overly broadly, but rather on apurposive, liberal (so as not to stifle, but facilitate) approach.

Additionally, a common issue does not need to establish liability; rather, itonly needs to demonstrate an element of the cause of action that will advance the class members’ claims, which might include a generalstandard of conduct.

Accordingly, even if the resolution of the common issues do not resolve all issues, the determination of the commonissues must at least substantially advance the litigation: see, inter alia: Hollick at para 18; Anderson v Wilson (1999), (ON CA), 44 OR (3d) 673 at paras 35-36, [1999] OJ No 2494 (Ont CA) [Anderson]; Condominium Plan No 0020701 v InvestplanProperties Inc, 2006 ABQB 224 at paras 63-64, 57 Alta LR (4th) 310 (Martin J) [Condominium Plan No 0020701]; Windsor QB atpara 103; Ayrton v PRL Financial (Alta) Ltd, 2005 ABQB 311 at paras 24, 84 - 85, 52 Alta LR (4th) 106 (LoVecchio J), aff’d 2006ABCA 88, (2006), 265 DLR (4th) 240; Harrington v Dow Corning Corp, 2000 BCCA 605 at para 24, 193 DLR (4th) 67; Rumley atpara 29; and Campbell v Flexwatt Corp (1997), (BC CA), 44 BCLR (3d) 343 at para 53, 15 CPC (4th) 1 (BCCA). [59] The articulation of the Common issues was a moving target in this hearing.

The Plaintiffs’ “Revised List of Common Issues”,which was filed before receiving the Defendants’ Briefs, is attached as Tab A of the Plaintiffs’ Initial Brief), and the Plaintiffs providetheir justification for them at paras. 129 - 175 of their Initial Brief. Later they addressed the Defendants’ responses in oral argument and the Defendants responded again. Still, in their Supplementary Submission, the Plaintiffs filed amended common issues[10] to which theDefendants have not responded.

In the result, it has been hard to track the changes and positions as to the now proposed common issues,never mind articulate a provisional decision on each. Thus while I have addressed and responded to some issues, if certification were toproceed, a further hearing would be necessary to consolidate the proposals and arguments and render more definitive decisions than I

have provisionally made herein. [ 60 ] The Defendant Physicians raised the rather standard defence that individual issues will predominate or “ overwhelm ” common issues and argued that the present matter is an inappropriate action for certification as a class action because there are no common issues supporting a class action that would advance individual issues: Dutton at para 39 ; and Egglestone v Barker (2003), 38 CPC (5th) 386 at para 18, [2003] OJ No 3137 (Cullity, J) . After looking at each proposed common issue and making comments in support of this general proposition, they argued in

summary that “the proposed common issues are either not in dispute, not issues amenable to court consideration , or not common at all” (Physicians Brief, para 208) . Indeed, they argued from the beginning that: The uniqueness of the issues in Ms.

Pifko's case, combined with the strong likelihood that the circumstances under which the medications in issue are prescribed will be unique to each patient, lead to the inextricable conclusion that the issue of whether it is appropriate to prescribe atypical antipsychotic medications to elderly patients with dementia is properly determined on the basis of individual actions reflecting the circumstances of each case. (Physicians Brief, para 3) [ 61 ] The Care Facilities essentially adopted the Physicians arguments and stated that the common issues, other than damages, applicable to them, relate to “ a single question, whether [they] owed the [class] any applicable duty of care with respect to the physician ’ s prescription ” of the AD drugs (Care Facilities Brief, para 42) .

They did not argue against the specific proposed common issues individually, and as such I will not provide a ruling on them now. If certification were to proceed, they might require a further examination in addition to the issues raised by the Physicians. [ 62 ] I note too that there are also specific concerns raised by the Physicians about individual issues.

I will briefly, but not exhaustively, touch on some of the matters raised. [ 63 ] In regard to proposed Issue 1 ( How do Zyprexa and Seroquel affect the human brain?), the Physicians expressed concerns that the issue, as framed, is purely scientific, neither factual nor legal, and too broad. In response, the Plaintiffs suggested the issue could be “more narrowly rephrased” as “Do Zyprexa and Seroquel have affinity for and cause a blockage of D2 neruons and dopaminergic neurotransmission? If so, what effect does that have on the basal ganglia and frontal lobes” (Plaintiffs’ Reply Brief to the Physicians, para 63).

The Physicians have not responded to the rephrasing. While the rephrasing addresses the breadth issue, I am not sure that it deals with the other matters raised. I am not convinced that it assists the common issues, and one would have to conduct a further enquiry before approving it, if certification were otherwise to proceed. [ 64 ] Proposed Revised Issue 2 relates to the use of AD in treating behavioural and psychological symptoms of dementia (BPSD). The previous Issue 2 related to treating dementia, when there is no evidence that AD has been used for this purpose.

Indeed, arguments about treating dementia were rampant throughout the Plaintiffs ’ written and oral submissions and Counsel for the Plaintiffs continued to discuss treating psychosis associated with dementia , prior to the filing of their Supplementary Brief, where a distinction was recognized (Plaintiffs Supplementary Brief, paras 1 - 3). In my opinion, there is no evidence in the present case of treatment of either dementia or BPSD, but rather only with the prescription and use of AD as a chemical restraint for ameliorating the behavioural and psychological effects arising from dementia.

Further, there is no evidence here of the Plaintiffs, as representatives of the Deceased, or anyone else, complaining about the use of AD as chemical restraints for ameliorating the behavior, but rather only about the drugs causing an allergic reaction in the Deceased alone.

In the result, I would have struck, or amended this issue, as well as all others that deal with the term “treatment” by removing it wherever it occurs, including the continued references to the term in Tab “A” to the Plaintiffs’ Supplementary Brief. [ 65 ] Proposed Issue 3 (risk and side effects of administering Zyprexa or Seroquel) assumes conclusions and then merely seeks to measure the conclusion. It would need to be re-framed. [ 66 ] Proposed Issues 4 to 7 (regarding warnings) are based on clearly proven facts that are not disputed by the Defendants, and therefore are either redundant or unnecessary.

Nevertheless, the Plaintiffs seek a formal admission of the issues (Plaintiffs’ Reply Brief to Physicians, para 70). If the case were to proceed to certification, these issues might properly be incorporated into an Agreed Statement of Facts, or the equivalent. [ 67 ] Proposed Issues 8 - 11 raise standard of care issues that will require individual considerations. Nonetheless, I believe that, if

references to the term “treatment” are removed, there are enough common issues therein that can benefit a class as a whole, before applying individual considerations. Paradoxically, the Defendant Physicians set out some of these considerations which appear to have common features in general and argued that they need to be applied on an individual basis (Physicians Brief, para 188); and also paradoxically, the Plaintiffs disagreed (Plaintiffs Brief to Physicians, para 76). It is the common features that may have merits which are supportive of any class action going ahead.

Generally, I am of the view that the same result applies to Proposed Issues 21 and 22 as they relate to informed consent (i.e. the Plaintiffs should identify the common characteristics, while the Physicians identify the individual characteristics). [ 68 ] Proposed Issues 12 - 20 do not apply to the Physicians, but the Defendant Care Facilities submitted that the Plaintiffs ’ claim that they were negligent for not providing information concerning prescription medication is doomed to fail as Care Facilities have no legal duty to provide such information (Care Facilities Brief, paras 32 - 37).

I would want more focussed argument on this, were certification to otherwise proceed, and therefore will not opine on this issue provisionally. [ 69 ] As to Proposed Issue 23, the Physicians argued that there is no cause of action for “ systemic neglect or abuse ” [11] and there is no evidence of common harm to patients. While they may be correct on the issues as stated, I believe, as to the first matter of systemic negligence or abuse, it is possible to phrase a common issue that would determine whether or not it is ever responsible to prescribe AD.

Indeed, the Plaintiffs responded to the Physicians argument with a reference to Re Zyprexa Products Liability Litigation (2008), 253 FRD 69 at 78 (New York Dist Ct) and expert evidence, that suggest general harmful effects of the relevant AD drugs (Plaintiffs’ Response Brief to Physicians, paras 62, 67-68). Moreover, the Plaintiffs argued that such a claim was certified in Rumley (Plaintiffs’ Reply Brief to Physicians, para 88). Otherwise, I believe that each of these would be individual issues for later assessment.

Thus, to go forward, these issues would have to be modified to extract only common considerations, if there are any. [ 70 ] As to Proposed Issue 24, damages are largely - almost exclusively - individual considerations.

As to Issue 25, if a common conclusion were drawn at a common issues trial that AD should never be prescribed (revised Issue 23), there might be some class wide aspects of aggravated or exemplary damages, so this proposed Issue should remain. [ 71 ] The Plaintiffs later responded generally in reply to the Physicians arguments (Plaintiffs’ Reply Brief to Physicians, paras 62 - 91). [ 72 ] In my view, while the Defendants are not totally correct in taking the position that there are no common issues in this matter; much work would have to be done on each of the proposed common issue, if certification were to proceed.

It would be necessary to revise them in a way that will make them , indeed, “common”, while leaving individual issues for individual consideration. As I said in Eaton v HMS Financial Inc , 2008 ABQB 631 at para 71 , [2008] AJ No 1127, the extent to which the individual issues were to predominate the common issues is not, strictly speaking, a material consideration under s 5(1)(

c) of the Act (see, Plaintiffs’ Brief, para 176). Notably, s 8(

a) of the Act provides that certification is not barred by reason that “the relief claimed includes a claim for damages that would require individual assessment.” That said, I should reiterate that the issue of whether individual issues predominate the common issues will be relevant in considering the preferable procedure, pursuant to ss 5(1)(

d) and (2)(

a) of the Act . D. Preferable Procedure [ 73 ] Section 5(1)(

d) of the Act requires, as a prerequisite for certification, that a class proceeding be the preferable procedure for the fair and efficient resolution of the common issues, and s 5(2) directs the Court to consider: (

a) whether questions of fact or law common to the prospective class members predominate over any questions affecting only individual prospective class members (there was much overlap in the argument on this point with the requirements of s5(1)(

c) of the Act , as discussed above); (

b) whether a significant number of the prospective class members have a valid interest in individually controlling the prosecution of separate actions; (

c) whether the class proceeding would involve claims that are or have been the subject of any other proceedings;

(

d) whether other means of resolving the claims are less practical or less efficient; (

e) whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief weresought by other means. [74] It is necessary to conduct an analysis in order to determine whether, viewed in the context of the claims as a whole, a classproceeding would advance the common issue claims in a meaningful way (i.e. fair to all parties, efficient and manageable), havingregard to judicial economy, access to justice and behavioural modification of tortfeasors: Hoy v Medtronic, Inc, 2003 BCCA 316 atparas 46, 54, 14 BCLR (4th) 32; Hollick at paras 27-28; Elder Advocates of Alberta Society v Alberta, 2009 ABCA 403 at para 79, 469AR 270 [Elder Advocates CA]; Reid v Ford Motor Co, 2003 BCSC 1632 at para 81, [2003] BCJ No 2489 (Gerow J); MCC v Canada(2003), (ON SCDC), 65 OR (3d) 492 at para 29, [2003] OJ No 2698 (Ont Sup Ct (AD)); and Windsor QB at para36.

The onus is on the Plaintiffs to show that the procedure proposed is “fair, efficient and manageable”: Caputo v Imperial Tobacco Ltd(2004), (ON SC), 236 DLR (4th) 348 at paras 62 - 68, 44 CPC (5th) 350. [75] Some aspects of this requirement are very close to the issue of the existence of a class, and its size. Even if the Plaintiffs wereable to get beyond the requirement of two or more in the class, this remains a highly contentious issue. It is so because, essentially thismatter is a case of alleged class malpractice.

The Physicians have asserted that “medical malpractice cases tend to be cases not amenable to class proceedings”: Anderson[12] at para 9; see also, Physicians Brief, para 184. In a similar vein, the Care Facilities Defendantsargued that “[t]here is scant evidence of the existence of a class. Judicial economy and access to justice are not achieved by invoking theclass process where the existence of the class is doubtful” (Care Facilities Brief, para 47). I believe that there is much to this argument -indeed, had I not dismissed the certification under s 5(1)(b), I would have given this much closer scrutiny.

However, I would unlikelyhave refused to certify in the first instance on this ground alone, but rather allowed the certification to go ahead at least up to the noticeperiod in order to determine if potential class members would come forward. If none does, then the Defendants will have the ability tomake an application to de-certify. 1. Common Issues Predominate [76] In the context of their earlier arguments, the Physicians were very clear as to their position that individual issues wouldpredominate common issues in this case when they contended that: The case of Ms.

Pifko illustrates that individual factors will be considered in each case where a drug is prescribed to an elderly personwith dementia.

In order to consider whether there is negligence (which is essentially what the Applicants are asserting against theRespondent Physicians), it will have to be demonstrated that, in the particular circumstances of the individual Applicant a physicianeither reasonably or unreasonably prescribed Zyprexa or Seroquel and that within the particular individual circumstances of eachproposed class member, an informed consent discussion would or would not have resulted in them accepting that physician's advice andproceeding with the medication.

Given all the circumstances of this particular claim, the preferability requirement is not met.

It is absolutely not preferable to theordinary method of resolving a case, which would be for the individual claimant to prove the individual case that they may have againstany particular physician. (Physicians Brief, paras 216 - 17) [77] They also listed some “practical” considerations that are to the same effect in their written submissions: Physicians Brief, para218. [78] The Physicians continued the focus on individual issues and further argued that neither judicial economy nor access to justicewould be achieved if there were a large number of major individual trials, in addition to the common issues trial.

They also argued that,

in the absence of these beneficial objectives, even behavioural modification (which, they argued, is not a big factor here) would not makeclass action a preferable procedure: Physicians Brief, paras 221 - 45, relying on, Huras v Com Dev Ltd (1999), 36 CPC (4th) 31 at para47, [1999] OJ No 2560 (Ont Sup Ct J - Swinton J); Scott v St Boniface General Hospital, 2002 MBQB 196 at paras 33, 36, 165 Man R(2d) 181 (MacInnes J); Williams v Mutual Life Assurance Co of Canada (2003), (ON CA), 226 DLR (4th) 112 atpara 54,

(2003) OJ No 1160 (Ont CA); and Dutton at para 555. [79] The Plaintiffs’s arguments on this issue were premised on a number of principles, including: predominance of common overindividual issues is not a requirement (there will always be individual issues), but the only one factor to weigh is whether a classproceeding is the preferable way to resolve the common issues that are present; common issues do not need to provide liability or reliefto the class, but need only to move the litigation forward to where the individual issues arise; even if the common issues are “somewhatpreliminary” to determining a matter, a class proceeding may be preferable; there is judicial economy in deciding matters once, ratherthan duplicating fact findings and legal analysis - i.e. the alternative to a class proceeding would be “far less practical and far lessefficient” in time and costs to the parties and to the administration of justice; and vulnerabilities of the class are relevant: Plaintiffs’ Brief,in paras 179 - 195 and 206 - 8; ss. 5(2), 8(a), 28 and 29 of the Act; Kristal Inc v Nicholls & Akers, 2006 ABQB 168 at para 113, 54 AltaLR (4th) 275; Harrington v Dow Corning Corp, (BC SC), [1996] 8 WWR 485 at para 47, 22 BCLR (3d) 97 (BCSC);Chase v Crane Canada Inc (1997), (BC CA), 44 BCLR (3d) 264 at paras 15-18, 14 CPC (4th) 197 (BCCA);Bywater v Toronto Transit Commission (1998), 27 CPC (4th) 172 at para 21, [1998] OJ No 4913 (Ont Gen Div - Winkler J); Andersonat paras 35-36; Condominium Plan No 0020701 at paras 93, 95; Windsor QB at paras 131, 133; Cloud at paras 81-83; Rumley at para39; T L v Alberta, 2009 ABCA 182 at para 24, 457 AR 141; and Elder Advocates CA at para 79. [80] The Plaintiffs also specifically addressed judicial economy, access to justice and behaviour modification, but in light of thefact that, with one exception, these were not raised by the Defendants as issues, I will not address them (Plaintiffs Brief, paras 196-205).The exception is that the Physicians referenced the fatality inquiry process, to which the Plaintiffs noted that, while that type of hearingcan make findings as to the cause and manner of death (which seems relatively clear in this matter as the death resulted from an adversereaction to medication) and make recommendations, it cannot determine legal responsibility or other conclusions of law: Plaintiffs ReplyBrief to the Physicians, paras 97-98; and Plaintiffs Reply Brief to the Care Facilities, para 20. [81] Admittedly, while the Physicians’ arguments that there will be a need for an individual assessment in each case is not, initself, unusual, some claims are amenable to being “aggregated”: Jesuit Fathers of Upper Canada v Guardian Insurance Co ofCanada, 2006 SCC 21, [2006] 1 SCR 744; Blackwater v Plint, 2005 SCC 58, [2005] 3 SCR 3.

Thus, it does not mean that there is noworth to a class proceeding that accomplishes some goals expected of common issues, while leaving some individual assessments. In thisregard, however, the Physicians acknowledged that the “over-arching standard of care owed by a doctor to a patient” is a common issue,but that applicability of this to individual cases “militate against a class-wide certification” (Physicians Brief, para 219). In my view,there may be something to this latter argument, although it is not “black and white” (i.e. it may be some of both and it is hard todetermine in advance).

Nevertheless, I would not reject certification for this reason alone. There are other factors, however, that combinewith this. [82] One such factor, even if two or more persons were in the class, is the extent to which the number in the class is small orlimited, which would effectively impact the cost of the class proceeding.

In the context of the need to conduct individual determinationof the application of the standard of care principle, a small number of class members might mean extra cost to the class proceeding thatwould not justify the class process; thus, making class proceeding less than preferable as the procedure of choice. As mentioned earlier,if I had determined that two class members existed, I would have certified the action.

Subsequently, I would have made the commonissues more workable and then left the matter to the Defendants to apply to de-certify the class action, if the numbers did not justify theclass proceeding after the results of notice were realized. E. Eligible Representative Plaintiff [83] Section 5(1)(

e) of the Act requires that the representative plaintiff: fairly and adequately represent the interests of the class;produce a plan that sets out a workable method of advancing the proceedings and notifying class members; and have no conflicts withthe interests of other class members.

This requires: a common interest; a motivation to vigorously prosecute the claim; competentcounsel; capacity to bear costs; and capably represent the interests of the class: Bouchanskaia v Bayer Inc, 2003 BCSC 1306 at para154, [2003] BCJ No 1969 (Gray J); Fakhri v Alfalfa’s Canada Inc (cob Caper’s Community Market), 2003 BCSC 1717 at para 75, 26BCLR (4th) 152 (Gerow J), aff’d 2004 BCCA 549, [2004] BCJ No 2200; and Shiels v TELUS Communications Inc, 2004 ABQB 76 atpara 28, 1 CPC (6th) 174 (Clarke J). [84] The Plaintiffs sought to have the Deceased’s daughter be the representative plaintiff and spoke to her qualities (Plaintiffs

Brief, paras 211-214). 1. Fairly and Adequately [ 85 ] The Physicians did not object to Ms. Buelow acting as the representative plaintiff if certification were granted. [ 86 ] The Care Facilities objected to the proposed Representative Plaintiff because they said that she invoked the age criterion to include herself, but noted that she is not a class member. Both of these arguments are spurious because the proposed Representative Plaintiff is actually stepping into the shoes of the Deceased who, but for her death, would have met these criteria. Ms.

Buelow is merely her representative. [ 87 ] The Care Facilities also argued that Ms. Buelow is unsuitable because she engaged Dr. Breggin, an expert “whose agenda threatens at worst to ‘hijack’ the proceedings.” In light of my decision to dismiss the certification application, I do not need to make findings on this issue. Moreover, if Dr. Breggin were to appear in any part of any proceedings in this case, he would be assessed, for better or worse, as any other proposed expert witness. In short, his being hired is not a basis to find the representative plaintiff, otherwise suitable, unsuitable. 2.

Litigation Plan [ 88 ] The parties agreed during oral argument that the Defendants are not challenging certification based on any allegation of the deficiencies in the litigation plan, but that if certification were to be granted they would be making submissions for its improvement (TR 132/15 - 22). Thus, this is not a bar to certification, but would need to be further discussed if certification were to have been granted. VI.

Conclusion [ 89 ] The application for certification is dismissed because the Plaintiff Estate has not established the mandatory requirement that there is an identifiable class of two or more persons. Thus, the Plaintiffs will have to proceed, if at all, on the basis of an individual, stand alone action.

If there are other unknown (more aptly, unproven) persons who are potential members of the class, their limitation period suspension will re-commence in accord with s 40(1.1) of the Act . [ 90 ] I have also made brief provisional rulings on other issues within the certification application, in the hypothetical context that the proceeding had positively met the deficiency for which certification was denied. [ 91 ] Absent agreement to the contrary, costs will follow the event, in any event of the cause, payable forthwith, in such amount as the parties may agree, or which may be assessed.

Heard on the 12 th and 13 th day of April, 2012. Dated at the City of Edmonton, Alberta this 7 th day of May, 2013. J.D. Rooke A.C.J.C.Q.B.A. Appearances: Allan A. Garber for the Plaintiffs D. M. McLaughlin and P.J. Faulds, Q.C. for the Defendants, Alberta Health Services and Capital Care Group Inc. James S. Peacock, Q.C. and Tim Ryan for the Defendants, Physicians [1] In oral argument, and as indicated in the correspondence dated April 16, 2012, Counsel for the Plaintiffs confirmed that: (i) “ certification is not sought as against the physicians working at the Royal Alexander Hospital (i.e. Drs.

Rosenblum, Savage, Malowany and Chea - see, Transcript of Oral Argument ( “ TR ” ) 99/17-18, 28-33); and (ii) the reference to “ general hospitals ” in paragraph 6 of the Statement of Claim should be deleted. Therefore, I expect discontinuances, subject to costs, will be filed against these Defendants. [2] There was a collateral issue raised as to the expertise of Dr. Breggin, a controversial psychiatrist from New Jersey, who was relied upon by the Plaintiffs. However, I need not rule on his expertise relevant to these Reasons. [3] U.S.

Food and Drug Administration (FDA) and Health Canada. [4] The Physicians argued that the Plaintiffs ’ definition of proposed class of the “ elderly ” to mean patients “ 55 years of age or older ” is below this age by 10 years, and the terms of the Black Box warnings would not apply to the broad class of persons contemplated by the Plaintiffs. [5] The Plaintiffs submit that, based on the examination of its Officer, “ Capital Care operates six long-term facilities in Edmonton .... They provide long-term care to elderly patients who have chronic disabilities.

Many are elderly patients with dementia ” (Plaintiffs ’ Brief, para 18). [6] As Counsel for the Plaintiffs pointed out, where reasonable people would consent if advised of the risks, a person cannot

complain of not being advised (Plaintiffs’ Brief, para 157, relying on: Harris v Beck Estate, 2009 PECA 8 at paras 51, 57, 284 Nfld &PEIR 29; referencing, Lorne E Rozovsky, Canadian Law of Consent to Treatment, 3rd ed (Markham, Ont: LexisNexis Butterworths,2003) at 163; and Nattrass v Weber, 2007 ABQB 577 at paras 41 -42, 81 Alta LR (4th) 158. [7] I should quickly put something to rest in this context. The individual ages of the present Plaintiffs are non-material.

They aremerely personal representatives of the Deceased, who is the one (single) member of the class that meets the definition. [8] Emphasis in the first instance is in the original, emphasis the latter two having been added. [9] Having dealt with “A” and “B” in the previous

section of this Decision in relation to ss 5(1)(a) & (

b) of the Act, I haveintentionally started this

section with “C” in order to match s 5(1)(

c) of the Act. This pattern is followed for the rest of these Reasons. [10] However, in looking at the Plaintiffs’ Supplementary Brief, provided to the Court on April 16, 2012, it is not clear what thesymbols “<>” in reference to some common issues are intended to represent. It is presumed that they merely have not made any changesto them. However, that would need to be discussed and clarified if certification were to proceed. [11] Significantly, “systemic” negligence was certified, along with exemplary or punitive damages (as a global award), in Rumley atparas 19, 23 and 36.

See also, Markson v MBNA Canada Bank (2007), 2007 ONCA 334 , 85 OR (3d) 321 at para 48 (OntCA); Cloud v Canada (Attorney General) (2004), (ON CA), 73 OR (3d) 401 at para 70, 247 DLR (4th) 667 (OntCA) [Cloud]; ss 30 - 32 of the Act; and Plaintiffs Brief, paras 161, 164 - 67, 169 - 74. [12] The Physicians erroneously referred to the case as “Andrews.”