JAYDE SCOTT, ON BEHALF OF HERSELF v. OTHER CLASS MEMBERS,, 2023 NBKB 209

IN THE COURT OF KING’S BENCH OF NEW BRUNSWICK TRIAL DIVISION JUDICIAL DISTRICT OF MONCTON Jayde Scott, on behalf of herself and other class members v. Regional Health Authority B, dba Horizon Health and Nicole Ruest 2023 NBKB 209 MC/273/2019 BETWEEN: JAYDE SCOTT, ON BEHALF OF HERSELF AND OTHER CLASS MEMBERS, – and – REGIONAL HEALTH AUTHORITY B, dba HORIZON NETWORK, and NICOLE RUEST DECISION BEFORE: Chief Justice Tracey K.

DeWare AT: Moncton, New Brunswick DATE OF HEARING: June 7, 2023 DATE OF DECISION: November 29, 2023 APPEARANCES: Virginia Gillmore & John McKiggan, K.C., for the Plaintiff Ryan Burgoyne & Véronique Guitard, for Regional Health Authority B. Andrew Faith & Brookelyn Kirkham, for Nicole Ruest DEWARE, C.J.

INTRODUCTION [ 1 ] This is a request for certification of a class proceedings pursuant to the Class Proceedings Act , RSNB 2011 c 125 .

FACTS [ 2 ] The Plaintiff, Jayde Scott on behalf of herself and other Class Members (“the Plaintiff”), in this matter proposes certification of a class action defining the proposed class as follows: All persons who allege they received oxytocin that was not appropriately administered as a result of Nicole Ruest’s actions while a patient in the Moncton City Hospital between September 2010 and March 2019, and claims they suffered harm or loss as a result. [ 3 ] The Defendant, Regional Health Authority B, Horizon Health Network (“the Defendant Hospital”) has at all material times operated, managed and controlled the Moncton Hospital. [ 4 ] The Defendant, Nicole Ruest (“the Defendant Ruest”) became a registered nurse in the province of New Brunswick in 2009.

The Defendant Ruest was hired by Regional Health Authority B, Horizon Health Network and was employed at the Moncton Hospital. The Defendant Ruest worked in the labor and delivery ward of the Moncton Hospital between September 2010 and March 2019. The Defendant Ruest was employed at the Moncton Hospital for approximately ten years prior to her termination on March 27, 2019. [ 5 ] On March 27, 2019, proposed representative plaintiff, Jayde Scott, was admitted to the labor and delivery unit of the Moncton hospital in preparation for the delivery of twins. The Plaintiff was cared for by obstetrician Dr.

Erin Hemsworth. Dr. Hemsworth had planned to induce the Plaintiff’s labor on March 27, 2019. The Plaintiff was attended following her arrival at the hospital by the Defendant Ruest. The Plaintiff was given an IV shortly after her arrival at the hospital. Soon thereafter the Plaintiff began to experience strong and prolonged contractions which caused the babies to go into fetal distress. The Plaintiff underwent an emergency cesarean

section to deliver the babies given the concerns for their well-being. [ 6 ] In her affidavit filed in support of the motion, the Plaintiff indicates that Dr. Hemsworth came to see her the day following the delivery to share concerns over what had transpired. As a result of concerns for the quick onset of contractions experienced by the Plaintiff, the IV bag that was administered to her was tested and found to contain oxytocin. Dr. Hemsworth informed the Plaintiff that the nurse who had administered the oxytocin had been terminated by the hospital on March 27, 2019.

The nurse terminated by the hospital on March 27 th , 2019 was the Defendant Ruest. [ 7 ] The plaintiff has filed affidavits from eight former patients of the Defendant Hospital who allege similar experiences surrounding the birth of their children as that recounted by Jayde Scott.

According to the affidavits filed, the mothers indicate they were informed by their obstetricians that the emergency C-sections or emergency deliveries they experienced were likely caused by an overdose of oxytocin. [ 8 ] Jayde Scott, Jennifer Stewart Duguay, Amy Miller, Karine Chouinard, Mireille Doiron, Nadine Belliveau, Sophie Richard, and Sara Maisonneuve describe their experiences giving birth at the Defendant Hospital.

The affidavits relay very similar experiences of typical labor or inducement of labor followed by urgent deliveries when the babies went into sudden distress and their immediate births were necessary. The mothers recount the stress of these emergency births followed by the trauma of recovering from the event both for themselves and their babies.

Two of the deponents, Karine Chouinard and Sophie Richard do not state they were treated by the Defendant Ruest nor do they mention the presence of the Defendant Ruest at the Defendant Hospital during the birth of their children. [ 9 ] Jayde Scott, Karine Chouinard, Mireille Doiron, Nadine Belliveau, and Sophie Richard explain in their affidavits that following the birth of their children they were informed by their treating physicians, and verily believe, that the traumatic nature of the birth was caused by the inappropriate administration of oxytocin.

There are no medical records appended to any of the deponents’ affidavits. There is no evidence before the court from any of the physicians who are mentioned in the various affidavits of the mothers filed with the court in support of the motion for certification. [ 10 ] Oxytocin is a synthetic hormone used as a medication to assist labouring mothers establish regular contractions. The use of oxytocin must be carefully controlled and monitored as each mother and baby may react differently.

The dosage of oxytocin is generally started at a low level so that the attending medical staff can carefully monitor the reaction to the medicine of both mother and baby. Oxytocin can only be given to a patient on the order of a physician.

[ 11 ] The Plaintiff has also included in the evidence in support of the motion for certification a copy of an expert report of Dr. John F. R. Barrett a specialist in Maternal-Fetal Medicine at Sunnybrook Health Science Center. Dr. Barrett includes in his preliminary report an explanation of the use of oxytocin in laboring mothers as well as the risks of using this medication to both mothers and babies. Dr.

Barrett did not have the medical records available to him from the potential class members at the time of the preparation of his report and therefore provided general information as to the issues and what would be needed to determine if a mother had been exposed to an inappropriate use of oxytocin. Dr. Barrett comments at page 10 of his report as follows: This will require a detailed examination of the records of each birth in which this was suspected by an obstetric expert, who in my opinion would be able to opine on the balance of probability whether inappropriate oxytocin was had occurred. Caesarean

section rates at the Moncton hospital From the data I have seen from the CIHI database there does indeed it appears to be a spike in the rate of caesarean sections at the Moncton Hospital in 2017. Whether or not this is related to inappropriate oxytocin use at the institution at that time will require a more in-depth look at the causes of the caesarean

section and also further data points which are not yet available from this database. [Emphasis mine] [ 12 ] The Defendant Hospital retained the services of Dr. Nicholas Braithwaite to prepare an expert report concerning the ability to identify mothers who may have experienced emergency births as a result of the illicit administration of oxytocin. Dr. Braithwaite’s report identifies the questions he was asked to answer as follows: 1. What issues, factors and considerations need to be addressed when trying to establish why any specific patient was delivered by emergency Caesarean Section? 2. How does the term crash Caesarean

Section vary from emergency Caesarea Section? 3. Can cases of unordered (illicit) Oxytocin administration be identified without a detailed review of a patient’s hospital chart? Would a review of patient charts provide any certainty in identifying unordered (illicit) Oxytocin administration? 4. Could you also address the potential responses/reactions/outcomes that women may have after delivery by an emergency Caesarean Section? [ 13 ] Dr. Braithwaite confirms in his report that he was advised two bags of intravenous fluid tested positive for unordered (illicit) oxytocin.

This information presumably would have been given to Dr. Braithwaite by the Defendant Hospital. This is the only reference to a confirmation that illicit oxytocin was administered to patients other than the comments made by the potential class members in their affidavits referring to the statements from their physicians that the physician was of the view illicit oxytocin had been administered. [ 14 ] In his report Dr. Braithwaite comments on the ability to determine whether an emergency ceasarean

section was caused by illicit oxytocin as follows: In my opinion, determining whether or not the cause of an emergency Caesarean

Section was the result of illicit Oxytocin administration, or even if a patient received illicit Oxytocin, would be impossible if one were to base the decision solely on either the documentation of an emergency Caesarean

Section having had been performed, or the presence or absence of any specific Face Sheet or Coding documentation. To even attempt a determination of whether a patient likely received unordered (illicit) Oxytocin would require a comprehensive review of the individual charts involved. Even such a review would most likely fail to result in any reproducible probabilistic determination of the likelihood or not of illicit Oxytocin administration.

[Emphasis mine] [15] The Defendant Hospital has submitted an affidavit of Jody Rhodenizer which sets out statistical information outlining the numberof deliveries at the Defendant Hospital between 2009 and 20019. The statistics include a breakdown of deliveries between vaginaldeliveries, c-section deliveries, elective c-sections, emergency c-sections and other c-sections.

This table in its entirety provides thefollowing information: Fiscal year VaginalDeliveriesC-SectionDeliveriesTotal Deliveries Elective C-Sections EmergencyC-Sections Other (Unknown C-Sections)2009-10 865 454 1,319 224 192 382010-11 871 403 1,274 223 161 192011-12 921 388 1,309 212 146 302012-13 931 376 1,307 199 151 262013-14 1,007 352 1,359 174 158 202014-15 906 349 1,255 173 176 02015-16 850 390 1,240 152 238 02016-17 906 366 1,272 177 189 02017-18 823 390 1,213 181 209 02018-19 834 389 1,223 186 203 0Total 8,914 3,857 12,771 1,901 1,823 133 [16] The Defendant Ruest has secured an expert report from Dr.

Gareth R. Seaward a Maternal-Fetal Medicine specialist at MountSinai Hospital. Dr. Seaward in his report comments upon the ability to determine if illicit oxytocin has been administered to a mothercausing an emergency delivery as follows: It is therefore impossible to state on a balance of probabilities, that illicit oxytocin was the cause of any complication unless forensicanalysis of all IV solution bags used during the labor revealed the presence of traces of oxytocin in one or more IV solution bags. Thiswould require individual analysis of each case as a separate review.

In each case of suspected undocumented use of oxytocin, the entireclinical presentation would need to be reviewed to rule out other possible occurrences warranting an emergency caesarean

section orforceps delivery. In addition, in each case, forensic analysis of the IV solution bags used would need to demonstrate traces of oxytocinthe concentration/strength of oxytocin in the bag. Critical event review of an incident, to be of value, needs to occur shortly after the incident occurred. In the normal course of eventsdetailed review of the patient chart and fetal heart rate tracing would be sufficient. This review would involve a panel of membersincluding the hospital risk management team as well as relevant physician and nursing representation.

In the context of illicit use ofoxytocin without the knowledge of healthcare providers or the patient, chart and fetal heart tracing review alone whether at the time ofthe incident or later would not be of value as no forensic analysis of the IV solutions would occur either immediately or remotely. Ifdelivery by caesarean

section or assisted forceps delivery occurred with no bad outcome, (under normal circumstances) that case wouldnot be flagged for review. This would be true even if illicit oxytocin had been administered. In order to determine that oxytocin may have been given to any patient, proof in the form of a forensic analysis would be required ineach case to

a) determine if it is more likely than not that a patient was administered oxytocin without the health team or patient’sknowledge and

b) determine if it is more likely than not that oxytocin, administered without the health team or patient’s knowledge,caused a patient’s otherwise unnecessary emergency caesarian or instrument assisted delivery. The mere fact that oxytocin was useddoes not necessarily indicate that a subsequent emergency caesarian

section or forceps delivery was a direct consequence ofadministration of oxytocin, legally or otherwise. [Emphasis mine] [17] There is a supplemental affidavit sworn to by Dr. Arun Anand on November 8th, 2021 which forms part of the evidentiary recordin support of the request for certification. The admissibility of the contents of Dr. Anand’s Supplemental Affidavit was the subject of a motion heard by Justice LeBlanc in December 2022. In a decision rendered on January 27th, 2022 (Jayde Scott v. Regional HealthAuthority B and Nicole Ruest, 2022 NBQB 22 , 2022 NBQB 022), Justice LeBlanc determined that certain aspects of the

affidavit were inadmissible as evidence in support of the Plaintiff’s request for a certification order. The paragraphs of Dr. Anand’s Supplemental Affidavit that are admissible in this motion state the following: 1. I am a medical doctor practicing medicine and specializing in anesthesia. I worked at the Moncton City Hospital ("the Hospital") from 2017 to 2021. 2. In my role as an anesthesiologist, I performed multiple procedures including surgical procedures assisting in the delivery babies.

When working on cases involving deliveries, I worked in tandem with nursing and medical staff from the Department of Obstetrics at the Hospital. 3. The Head of the Department of Anesthesia was Dr. David Dodge. Dr. Dodge, as Head of my department, was responsible for keeping the staff in his department abreast of developments, issues, and processes which affected the medical staff, the patients, and the procedures of the Hospital. Dr. Dodge would frequently provide me and department staff with updates by email. 4. The Chief of Staff of the Hospital was Dr. Kenneth Gillespie. He was responsible for all departments.

As Chief of Staff Dr. Gillespie was head of the medical staff and provided leadership and guidance to the medical staff and promoting effective communication between the medical staff, the various medical departments and Hospital administration. 5. As a member of the medical staff, I was required to attend various meetings. Some were departmental meetings, some were meetings involving multiple departments, for example meetings of the anesthesiology and obstetrics departments.

The purpose of the meetings was to provide communication between the medical staff, advise the staff of points of action needed, developments, issues, and processes which affected the staff, patient safety, and the Hospital's policies and administration. 6. In my experience prior to practicing at the Moncton Hospital, emergency or "stat" caesarean sections requiring general anesthesia were very rare occurrences. During my time on the Hospital's medical staff I was aware that the Hospital was performing an exceedingly high number of emergency (or "stat") caesarian sections requiring general anesthesia. 7.

The high number of caesarian sections was a topic of concern from at least when I started working at the Hospital in November 2017 until March 2019. The Department of Obstetrics and the Department of Anesthesia held a joint meeting in 2018 to discuss the high number of emergency "stat" caesarian sections. I did not attend the meeting. 8. I am aware of a meeting of the Chief of Staff and the anesthesia department that was held on March 28, 2019. I would normally have participated in this meeting as part of my duties at the hospital, but I was not able to attend (although I was invited to attend).

Following the meeting, I received an email from my Head of Department, Dr. Dodge to advise me (and all the other members of my department) what was discussed at the meeting. The email is Exhibit A to my First Affidavit. That email is a true copy of what I received; it was not altered. It was kept in my inbox. [Emphasis mine] The email referred to in paragraph 8 of Dr.

Anand’s affidavit was ruled to be inadmissible in Justice LeBlanc’s decision of January 27 th , 2022. [ 18 ] The Plaintiff asserts in the pleadings that the Defendant Hospital is liable for damages as a result of both systemic and direct negligence, as well as breach of fiduciary duty. The Plaintiff maintains claims against the Defendant Ruest for direct negligence as well as aggregate and punitive damages. The theory advanced by the Plaintiff is that the Defendant Hospital was aware the number of emergency c-sections performed at the facility was higher than normal.

Further, the Defendant Hospital suspected that the reason for the elevated number of emergency deliveries could have been the result of illicit administration of oxytocin by an employee. The Plaintiff further suggests that the Defendant Hospital suspected the Defendant Ruest prior to March 2019 and did not act. [ 19 ] The Defendant Ruest has denied any involvement in the illicit administration of oxytocin to patients at the Moncton Hospital. The RCMP conducted a criminal investigation into this matter. The Defendant Ruest has not been charged with any offence related to this matter.

ISSUES [ 20 ] The sole issue before the court is to determine whether in the circumstances presented it is appropriate to certify this action pursuant to subsection 6(1) of the Class Proceedings Act . POSITION OF THE PARTIES [ 21 ] The Plaintiff suggests that all potential class members report very similar experiences surrounding the birth of their children at the Defendant Hospital.

The potential identified class members, Jayde Scott, Jennifer Stewart Duguay, Amy Miller, Karine Chouinard, Mireille Doiron, Nadine Belliveau, Sophie Richard, and Sara Maisonneuve all describe traumatic birth experiences at the Defendant Hospital while under the care of the Defendant Ruest. The class members suggest that their various experiences all followed a remarkably similar pattern which is highly supportive of the theory that they were administered illicit Oxytocin by the Defendant Ruest.

The Plaintiff further alleges that leadership within the medical staff at the Defendant Hospital were aware that a higher than “normal” number of emergency c-sections were being performed at the Defendant Hospital and physicians had been questioning why that was happening since at least 2017. The Plaintiff argues the Defendant Hospital is liable in negligence for their failure to adequately investigate and identify the illicit administration of oxytocin to laboring mothers by someone, that someone they suggest is the Defendant Ruest.

The Plaintiff points out that the Defendant Hospital had suspected the Defendant Ruest as the cause of the unexplained c-sections and immediately terminated her employment following the birth of the Plaintiff’s twins. The Plaintiff asserts that the Defendant Hospital was aware of the potential involvement of the Defendant Ruest prior to March 27, 2019, and failed to act. [ 22 ] The Defendant Hospital maintains that certification is simply untenable in this matter.

The Defendant Hospital submits that the action brought by the Plaintiff is overwhelmingly dominated by issues that are specific to each potential class member and will require individual determinations. The Defendant Hospital points out that each potential class member will need to establish that they were administered oxytocin outside the direction of their physicians and that the administration of the oxytocin had a direct impact on their labor and delivery.

The Defendant Hospital argues that the determination of these essential questions is unique to each potential class member and are best adjudicated within the framework of individual civil actions as opposed to the cumbersome nature of a class proceeding. The Defendant Hospital suggests that this is not a systemic negligence claim as has been the case in other class proceedings involving hospitals where certification orders were granted. [ 23 ] The Defendant Ruest echoes the arguments of the Defendant Hospital that in this case the individual issues overwhelm the common issues.

The Defendant Ruest maintains that the determination of whether or not each potential class member received illicit oxytocin which had a negative impact on their birth can only be determined on an individual basis. These determinations require findings of fact unique to each potential class member. The Defendant Ruest further points out it is not clear that she was even present during the birth of all of the various class members or, if she was, the extent of her involvement with the class members, if any.

Further, the Defendant Ruest points out that the determination of whether she owed a duty of care to the various class members can only be determined on a case-by-case basis. The Defendant Ruest suggests that this action is one of malpractice, not systemic negligence and therefore the need to determine the existence of a duty of care and breach of that duty in the context of each class member is essential. The Defendant Ruest maintains that there is no admissible evidence before this court to support the theory that the Defendant Ruest engaged in malfeasance or negligent conduct.

Finally, the Defendant Ruest points out that the evidence submitted in support of the motion for certification is hearsay or based on the opinions formed by the potential class members as to what happened during the birth of their children. LAW AND ANALYSIS [ 24 ] All class actions in the Province of New Brunswick are conducted pursuant to the Class Proceedings Act . Sub section 6(1) sets out the criteria the court must consider in determining if certification is appropriate. Section 6(1) provides as follows: 6(1)The court shall certify a proceeding as a class proceeding on a motion under

section 3 or 4 if, in the opinion of the court, (

a) the pleadings disclose or the Notice of Application discloses a cause of action, (

b) there is an identifiable class of two or more persons,

(

c) the claims of the class members raise a common issue, whether or not the common issue predominates over issues affecting onlyindividual members, (

d) a class proceeding would be the preferable procedure for the fair and efficient resolution of the dispute, and (

e) there is a person seeking to be appointed as representative plaintiff for the class who (

i) would fairly and adequately represent the interests of the class, (ii) has produced a plan for the class proceeding that sets out a workable method of advancing the class proceeding on behalf of the classand of notifying class members of the class proceeding, and (iii) does not have, with respect to the common issues, an interest that is in conflict with the interests of other class members [25] In Gay et al v. Regional Health Authority 7 and Dr.

Menon, 2014 NBCA 10, the New Brunswick Court of Appeal confirmedthat a court must certify a Class action if the statutory conditions as set out in section 6(1) of the Act are met. The Court has nodiscretion to withhold certification once a moving party has satisfied the requirements of section 6(1) of the Act. [26] The test for certification as succinctly set out by Chief Justice MacLachlan, as she then was, in Hollick v.

Toronto (city), 2001SCC 68 , [2001] 3 S.C.R. 158, is whether or not certification would give effect to the following three important goals of Classproceedings: Providing access to justice for litigants. Promoting the efficient use of judicial resources; and Sanctioning wrongdoers to encourage behavior modification. The Plaintiff suggests that a certification order in this case satisfies all three goals of class proceedings. The Defendants counter thatassertion with the argument that none of the goals of class proceedings would be adequately addressed with a certification order.

It isthrough the lens of these three goals that the court must consider the criteria set out in section 6(1) of the Act and its application to theproceedings as proposed by the representative plaintiff. [27] The request for a certification order is a procedural step in the proceedings. During the analysis of the various factors necessaryto issue a certification order the court is not determining the merits of the action.

Chief Justice Drapeau, as he then was, confirmed inGay that courts are to interpret the Class Proceedings Act broadly and liberally commenting at paragraph 46 as follows: [46] The provisions of the Class Proceedings Act stand to be interpreted with a view to furthering its objects: facilitating access tojustice, modifying harmful behaviour and conserving judicial resources. The Supreme Court of Canada has emphasized that therequirements for authorization of a class action under Quebec law have “on a consistent basis been interpreted and applied broadly” (seeMarcotte v.

Longueuil (City), 2009 SCC 43, [2009] 3 S.C.R 65, at para. 22 and Infineon Technologies, at para. 60). As was noted inthose two cases, the jurisprudence favours “easier access” to class actions as a means of achieving the twin goals of deterrence andvictim compensation. Despite the particular wording of Quebec class action legislation, there is no principled basis for a less generousapproach to the

interpretation and application of s. 6 of this province’s Class Proceedings Act: Hollick, at paras. 14-16; WesternCanadian Shopping Centres Inc., at paras. 26-29; Cloud v. Canada (Attorney General), v. Canada, (ON CA), [2004]O.J. No. 4924 (C.A.) (QL), at para. 37, leave to appeal to S.C.C. refused, [2005] S.C.C.A. No. 50; and Bryson, McNally J., at para. 7. [28] It is also important to highlight the sections of the Class Proceedings Act which provide guidance to courts on issues that are notbars to certification despite the fact the issue may complicate the prosecution of the action.

Section 9 of the Act states as follows: Certain matters not bar to certification

9The court shall not refuse to certify a proceeding as a class proceeding by reason only of one or more of the following: (

a) the relief claimed includes a claim for damages that would require individual assessment after determination of the common issues; (

b) the relief claimed relates to separate contracts involving different class members; (

c) different remedies are sought for different class members; (

d) the number of class members or the identity of each class member is not ascertained or may not be ascertainable; (

e) the class includes a subclass whose members have claims that raise common issues not shared by all class members. 2006, c.C-5.15, s.9 [29] In Seed v. Ontario, 2012 ONSC 2681, Justice Horkins explains the approach a court must take when considering a request forcertification.

Justice Horkins states at paragraph 74 to 78 as follows: [74] These requirements are linked: "There must be a cause of action, shared by an identifiable class, from which common issuesarise that can be resolved in a fair, efficient and manageable way that will advance the proceeding and achieve access to justice, judicialeconomy and the modification of behaviour of wrongdoers." (Sauer v. Canada (Attorney General), (ONSC), [2008] O.J. No. 3419 at para. 14 (S.C.J.) (“Sauer”)) [75] Winkler J. pointed out in Frohlinger v. Nortel Networks Corp, (ON SC), [2007] O.J.

No. 148 at para. 25(S.C.J.) (“Frohlinger”) that the core of a class proceeding is "the element of commonality". It is not enough for there to be a commondefendant. Nor is it enough that class members assert a common type of harm. Commonality is measured qualitatively rather thanquantitatively. There must be commonality in the actual wrong that is alleged against the defendant and some evidence to supportthis. [76] The decision to certify is not merits-based.

The test must be applied in a purposive and generous manner, to give effect to theimportant goals of class actions - providing access to justice for litigants; promoting the efficient use of judicial resources; andsanctioning wrongdoers and encouraging them to modify their behaviour: see Western Canadian Shopping Centres Inc. v.

Dutton, 2001SCC 46 , [2001] 2 S.C.R. 534 at paras. 26-29 (“Western Canadian Shopping Centres”); Hollick at para. 15. [77] In Hollick at para. 25, the “some basis in fact” test was introduced when the court stated that “the class representativemust show some basis in fact for each of the certification requirements set out in s. 5 of the Act, other than the requirement that thepleadings disclose a cause of action.” [78] Since it is not the role of the court on a certification motion to “find facts”, I conclude that Hollick directs the court to confirmthat there is some evidence to support the s. 5 (b) – (

e) requirements. This

interpretation of the test is consistent with the low burdenthat rests on the plaintiff as explained in Hollick at para. 16 and consistent with how the numerous courts have applied the “somebasis in fact” test: see, for example, Fresco v. Canadian Imperial Bank of Commerce, [2009] O.J. No. 2531 (S.C.J.) at para.61(“Fresco”)) [Emphasis mine] [30] Prior to proceeding to an analysis of the necessary criteria under section 6(1) of the Act, I will briefly touch upon the evidentiaryrecord currently before the Court.

It must be acknowledged that the Plaintiff in this matter has been ardent in their pursuit of evidence tobe used in support of their motion for certification. In January of 2020, I heard a motion filed by the Plaintiff requesting disclosure of theDefendants’ affidavit of documents and the results of the Defendant Hospital’s investigation into this matter referred to in media reportsafter the Plaintiff came forward with her experience. I denied the Plaintiff’s request for pre-certification disclosure given the exceptional nature of such a request in written reasons issued on February 12th, 2020 (Scott v.

Regional Health Authority B, 2020 NBQB 37). [31] At the commencement of the hearing of the certification motion before Justice LeBlanc on October 25th and 26th, 2021, thePlaintiff sought the admission of an affidavit of a physician at the Moncton Hospital. The parties adjourned the hearing of thecertification motion to provide an opportunity for everyone to argue the admissibility of the additional affidavit evidence tendered by the

Plaintiff. Arguments were heard by Justice LeBlanc on this issue on December 20th, 2021. In written reasons dated January 27th, 2022,Justice LeBlanc ruled on which parts of the supplemental affidavit of Dr. Anand were admissible as evidence in support of the motion forcertification. In explaining the admissibility threshold of “some basis in fact” in the context of a certification motion, Justice LeBlanc inJayde Scott v. Regional Health Authority B and Nicole Ruest, 2022 NBQB 22 commented at paragraphs 28 to 30 as follows: 28.

There is no dispute that to support the issuance of a certification order on the Certification Motion, the Plaintiff must show“some basis in fact” for each of the certification requirements set out in

section 6 of the Act (save and except the requirement that thepleading disclose a cause of action, for which a different test is applied). 29. That said, while the burden on the Plaintiff for all but one of the certification requirements is the lesser standard of “some basisin fact”, the Plaintiff must satisfy this standard by submitting admissible evidence. The “some basis in fact” standard is an evidentiaryburden of proof; it is not a separate, lower standard going to the admissibility of the Plaintiff’s evidence. 30.

The “some basis in fact” lesser burden of proof cannot be relied upon to admit evidence that would otherwise be inadmissible. [32] In Pinon v. Ottawa (City), 2021 ONSC 488 , Justice MacLeod considered a request for certification of a class actionpursuant to the Ontario class proceedings legislation. The proposed class proceeding arose from a deadly bus accident which occurred atone of the City of Ottawa’s Transit stations.

Justice MacLeod denied the certification request on the basis that the evidence submitted insupport of the motion was insufficient to satisfy the Court that a class proceeding was either necessary or in the interests of justice.

Indiscussing the challenges with affidavit evidence filed by the Plaintiff, Justice MacLeod stated at paragraphs 18 and 19 as follows: [18] A large part of the plaintiff’s affidavit consists of his opinions on numerous matters including his views on “frangiblestructures”, the “swiss cheese model”, systemic failures on the part of OC Transpo, factors contributing to the severity of the accident,and his views on driver training. I agree with the defendant that the plaintiff cannot be his own expert.

Even if he is fully qualified in allof the areas in which he purports to give opinion evidence, he cannot be impartial. In addition, his affidavit is replete with assumptionsand assertions. His opinions cannot be admitted as expert evidence and his assumptions and speculations would not meet even thelow bar of “some basis in fact”.

There is therefore no expert evidence at this stage demonstrating any systemic failure on the part of OCTranspo in designing its stations, its transit system or its transit vehicles. [19] While I stress again that for certification purposes, the plaintiff is not required to demonstrate he will be successful attrial, he is required to provide the court with adequate evidence of the shape of the litigation, the issues to be tried and the natureof the anticipated evidence.

It is necessary to understand that in order to assess what a common issues trial might look like andhow a common issues trial might eliminate the need for duplicative individual liability and damages assessments. [Emphasis mine] [33] In the present matter, the evidentiary record in support of the certification order consists of the affidavit of the Plaintiff and otherpotential class members, the expert report of Dr. Barrett, and the admissible paragraphs of the supplemental affidavit of Dr. Anandalready reproduced in this decision.

In addition, the Court has been provided with the statistics concerning births at the Moncton Hospitalbetween 2009 and 2019 as well as the expert reports tendered by the Defendants. As noted by Justice MacLeod in Pinon, while thePlaintiff is not required to demonstrate at this point that they will be successful at trial, the Court must be able to point to sufficientadmissible evidence to conclude that a common issues trial will be feasible and will achieve the goals of a class proceeding. [34] Justice Rothstein’s comments in Pro-Sys Consultants Ltd. v.

Microsoft Corporation, 2013 SCC 57 at paragraphs 99, 100 and102 are helpful to a consideration of the “some basis in fact” test to be applied in this case: [99] The starting point in determining the standard of proof to be applied to the remaining certification requirements is the standardarticulated in this Court’s seminal decision in Hollick.

In that case, McLachlin C.J. succinctly set out the standard: “. . . the classrepresentative must show some basis in fact for each of the certification requirements set out in . . . the Act, other than therequirement that the pleadings disclose a cause of action” (para. 25 (emphasis added)). She noted, however, that “the certificationstage is decidedly not meant to be a test of the merits of the action” (para. 16). Rather, this stage is concerned with form and withwhether the action can properly proceed as a class action (see Hollick, at para. 16; Pro-Sys Consultants Ltd. v.

Infineon TechnologiesAG, 2009 BCCA 503, 98 B.C.L.R. (4th) 272 (“Infineon”), at para. 65; Cloud v. Canada (Attorney General) (2004), (ON CA), 73 O.R. (3d) 401 (C.A.), at para. 50). [100] The Hollick standard of proof asks not whether there is some basis in fact for the claim itself, but rather whether there issome basis in fact which establishes each of the individual certification requirements. McLachlin C.J. did, however, note in Hollickthat evidence has a role to play in the certification process.

She observed that “the Report of the Attorney General’s Advisory Committeeon Class Action Reform clearly contemplates that the class representative will have to establish an evidentiary basis for certification”(para. 25).

[102] I cannot agree with Microsoft’s submissions on this issue. Had McLachlin C.J. intended that the standard of proof to meet thecertification requirements was a “balance of probabilities”, that is what she would have stated. There is nothing obscure here. TheHollick standard has never been judicially interpreted to require evidence on a balance of probabilities. Further, Microsoft’s reliance onU.S. law is novel and departs from the Hollick standard. The “some basis in fact” standard does not require that the court resolveconflicting facts and evidence at the certification stage.

Rather, it reflects the fact that at the certification stage “the court is ill-equippedto resolve conflicts in the evidence or to engage in the finely calibrated assessments of evidentiary weight” (Cloud, at para. 50; IrvingPaper Ltd. v. Atofina Chemicals Inc. (2009), (ON SC), 99 O.R. (3d) 358 (S.C.J.), at para. 119, citing Hague v.Liberty Mutual Insurance Co. (2004), 13 C.P.C. (6th) 1 (Ont. S.C.J.)).

The certification stage does not involve an assessment of themerits of the claim and is not intended to be a pronouncement on the viability or strength of the action; “rather, it focuses on theform of the action in order to determine whether the action can appropriately go forward as a class proceeding” (Infineon, atpara. 65). [Emphasis mine] [35] It must be acknowledged that the available evidence of this stage of proceedings is limited. The potential class members haveprovided their frank description of their experience giving birth at the Moncton Hospital.

The class members have also providedinformation relayed to them by third parties, primarily treating physicians. The evidence of Dr. Anand confirms there were concerns atthe Moncton Hospital with respect to the perception that emergency deliveries were higher than would be expected, since at least 2017.The statistical information provides a breakdown of all deliveries at the Defendant hospital during the material period in question. Allthree medical experts have opined on whether or not it will be possible to determine if a mother has been given oxytocin and how thatcould be done.

At this juncture, none of the expert witnesses are able to determine if potential class members were administered oxytocininappropriately as explained in their reports. The Court is bound to rely upon this evidentiary record to determine if there is “some basisin fact” which establishes each of the certification requirements of section 6(1)(

b) to (

e) of the Act. [36] Justice McNally had the opportunity to discuss the first criterion under section 6(1) of the Act in Bryson & Murrin v. AttorneyGeneral of Canada and Dow Chemical Company and Pharmacia Corporation, 2009 NBQB 204 commenting at paragraph 24 asfollows: [24] The first requirement for certification of a class proceeding is that the pleadings must disclose a cause of action.

In Risorto v.State Farm, supra, Cullity, J. summarized the principles that apply in determining whether the statement of claim discloses a cause ofaction: [23] … It is well-established that this question must be decided on the basis of the facts alleged in the pleading on the assumption thatthey will be proven at trial. Accordingly, evidence is not admissible to rebut such allegations. The test to be applied is whether it isplain and obvious that the plaintiffs could not succeed in establishing the alleged causes of action that are said to arise from thefacts pleaded.

For this purpose, the pleading is to be read generously and allowance made for drafting inadequacies.

It has been heldthat the novelty of a cause of action is not, in itself, a reason for rejecting it and that a decision to do so should not be made if the courtwould be required to decide matters of law that are not fully settled in the jurisprudence and that should be viewed in light of a fullevidential record. [Emphasis mine] [37] In Gay, the New Brunswick Court of Appeal confirmed the role of the court at the certification stage of the proceedings is not toconsider the merits of the proposed action but rather to be certain that a cause of action is formally pled.

This guidance was set out bythe Chief Justice Drapeau, as he then was, at paragraph 52 of the decision as follows: [52] In our view, the motion judge addressed the wrong question. On a certification motion, the question is not whether the claimsare likely to succeed on the merits at trial, but whether a cause of action is formally advanced in the pleadings (see Hollick, atpara. 16, and Vivendi Canada Inc., at para. 4). The issue under s. 6(1)(

a) of the Class Proceedings Act must be determined solely byreference to the pleadings as is the case on a Rule 23.01(1)(

b) motion to strike a statement of claim for failure to disclose a reasonablecause of action. The correct analytical framework is articulated in Sewell v. ING Insurance Co. of Canada, 2007 NBCA 42, 314 N.B.R.(2d) 330: The principles that inform the determination of a defendant’s motion to strike under Rule 23.01(1)(

b) are well settled and can besummarized as follows: (1) the only question for judicial resolution is whether it is plain and obvious that the Statement of Claim fails todisclose the essential elements of a cause of action tenable at law. That conclusion should be reached only in the clearest of cases; (2)correlatively, absent exceptional circumstances, the court must accept as proved all facts asserted in the Statement of Claim and abstainfrom looking beyond the pleading itself and any documents referred to therein (see Hogan v. Doiron et al. (2001), 243 N.B.R. (2d) 263,[2001] N.B.J.

No. 382 (QL), 2001 NBCA 97, para. 38 and Boisvert v. LeBlanc (2005), 294 N.B.R. (2d) 325, [2005] N.B.J. No. 561(QL), 2005 NBCA 115, para. 21). To expand the exercise beyond those limits would operate to morph the motion under Rule 23.01(1)(

b) into an application for

summary judgment under Rule 22, the appropriate vehicle to determine prior to trial whether there is factual merit to a claim; (3) the Statement of Claim is to be read generously to accommodate drafting deficiencies; and (4) where a generous reading of its provisions fails to breathe life into a pleading, all suitable amendments should be allowed (see Rule 27.10(1) and LeDrew et al. v. Conception Bay South (Town) (2003), 231 Nfld. & P.E.I.R. 61 , [2003] N.J.

No. 276 (QL) , 2003 NLCA 56 ). [para. 26] [Emphasis mine] [ 38 ] The Notice of Action with Statement of Claim Attached alleges that the Class Members were harmed as a result of the systemic negligence, breach of care, fraud and breach of fiduciary duty of the Defendant Ruest and the Defendant Hospital.

In the Statement of Claim the Plaintiff sets out the allegations against the Defendant Hospital as follows: 44 The Plaintiff further states that the assaults, unnecessary c-sections and other injuries to the Class were caused by the systemic negligence, fraud, breach of a non-delegable duty and breach of fiduciary duty of the Hospital and of the servants, agents, and employees of the Hospital including Ruest, the particulars of which are as follows: […] a. The Hospital is vicariously liable for Ruest’s actions who was acting as the Hospital’s employee or agent; b.

The Hospital trained, supervised and employed Ruest and knew or ought to have known of her negligent and dangerous actions; c. The Hospital employed and supervised Ruest and permitted her to work in close proximity with vulnerable patients; d. The Hospital failed to adequately monitor and supervise Ruest; e. Th Hospital did not have any policy or guidelines with respect to the inventory, tracking and use of oxytocin; f.

The Hospital failed to take reasonable or any steps to implement programs or procedures for the supervision of Ruest when the Hospital knew or ought to have known that not to do so would present a danger to the Plaintiff and the Class Members; g. The Hospital failed to take reasonable or any steps to supervise, counsel, or prevent Ruest from administering oxytocin to the Plaintiff and the Class Members when the Defendants knew or ought to have known that failure to do so would present a danger to the Plaintiff and the Class Members. h.

The Hospital failed to use reasonable care in the training, supervision and employment of Ruest and failed to take reasonable steps in assuring the safety and protection of patients under the care of the Hospital; i. The Hospital placed the Plaintiff and the Class Members under Ruest’s care as a nurse, and knew or ought to have known that the responsibility and authority that a nurse might exercise over the Plaintiff and the Class Members.

By failing to take proper care to select individuals who could reasonably exercise that responsibility and authority the Hospital breached the duty of care owed to the Plaintiff and the Class Members; j. The Hospital was aware it performed a suspiciously high number of emergency c-sections and assisted deliveries but failed to take adequate or any steps to investigate the cause of these c-sections and assisted deliveries when the Hospital knew or ought to have known that failure to do so would present a danger to the Plaintiff and the Class Members; k.

The Hospital failed to protect the Plaintiff and the Class members from harm; l. When the Hospital became aware of Ruest’s ations the Hospital failed to prevent further occurrences when the Hospital knew or ought to have known that their failure to do so would result in a risk of injury to the Plaintiff and the Class Members; m.

Such further and other causes of systemic negligence, breach of trust, breach of fiduciary duty and breach of non-delegable duty as the Plaintiff and the Class Members may advise prior to trial of this matter. 45 By not taking appropriate actions, the Hospital put its interests ahead of the interests of the Plaintiff and the Class Members and the Hospital deliberately or negligently failed to appropriately address the actions of Ruest and the harm she had caused to the Class. [ 39 ] The Statement of Claim frames the allegations against the Defendant Ruest as follows: a.

She failed to provide proper nursing care to the Class; b. She failed to appreciate the clinical significance of administering oxytocin to the Class; c. She administered oxytocin to the Class members when she knew it would be dangerous to the Class and their unborn children; d. She failed to monitor the Class members when she knew it would be dangerous to the Class and their unborn children;

e. She fraudulently concealed her actions from the Class. [40] In their written submissions in support of the request for a certification order, the Plaintiff set out the principles a court mustwhen apply when considering whether the pleadings disclose a cause of action at paragraph 40 as follows: 40. In a proposed class proceeding, the following principles apply when considering whether the pleadings disclose a cause of actionunder 6(1)(1) of the Act: (

a) the cause of action criterion does not have to be supported by evidence, and all allegations of fact, unless patently ridiculous orincapable of proof, must be accepted as proved; (

b) the defendant, in order to succeed, must show that it is plain and obvious beyond doubt that the plaintiff could not succeed; (

c) the novelty of the cause of action will not militate against the plaintiff; and (

d) the statement of claim must be read as generously as possible, with a view to accommodating any inadequacies in the form of theallegations due to drafting deficiencies. [41] The Plaintiff maintains that the existence of a duty of care in the circumstances of this case is evident. Courts have longrecognized the existence of a duty of care owed by hospitals and nurses to their patients. The Plaintiff argues that Courts have repeatedlyacknowledged the special relationship of proximity which exists between nurses and hospitals with patients in their care.

The Plaintiffsubmits that this special relationship falls within the well-established categories set out by the Supreme Court of Canada in Cooper v.Hobart, 2001 SCC 79. In particular, the Plaintiff refers the Court to paragraphs 36 of Cooper where the Court stated: 36 What then are the categories in which proximity has been recognized? First, of course, is the situation where the defendant’sact foreseeably causes physical harm to the plaintiff or the plaintiff’s property. This has been extended to nervous shock (see, forexample, Alcock v.

Chief Constable of the South Yorkshire Police, [1991] 4 All E.R. 907 (H.L.)). Yet other categories are liability fornegligent misstatement: Hedley Byrne & Co. v. Heller & Partners Ltd., [1963] 2 All E.R. 575 (H.L.), and misfeasance in public office. A duty to warn of the risk of danger has been recognized: Rivtow Marine Ltd. v. Washington Iron Works, (SCC),[1974] S.C.R. 1189. Again, a municipality has been held to owe a duty to prospective purchasers of real estate to inspect housingdevelopments without negligence: Anns, supra; Kamloops, supra.

Similarly, governmental authorities who have undertaken a policy ofroad maintenance have been held to owe a duty of care to execute the maintenance in a non-negligent manner: Just v. British Columbia, (SCC), [1989] 2 S.C.R. 1228, Swinamer v. Nova Scotia (Attorney General), (SCC), [1994] 1 S.C.R.445, etc.

Relational economic loss (related to a contract’s performance) may give rise to a tort duty of care in certain situations, as wherethe claimant has a possessory or proprietary interest in the property, the general average cases, and cases where the relationship betweenthe claimant and the property owner constitutes a joint venture: Norsk, supra; Bow Valley Husky (Bermuda) Ltd. v. Saint JohnShipbuilding Ltd., (SCC), [1997] 3 S.C.R. 1210.

When a case falls within one of these situations or an analogous oneand reasonable foreseeability is established, a prima facie duty of care may be posited. [Emphasis added] [42] The Duty of Care which exists between physicians, nurses and hospitals toward their patients has long been recognized. I have nodifficulty accepting the existence of such a duty of care in this case as between the Defendants and the labouring mothers in their care.

Inmy view, the pleadings clearly define allegations of negligence against the Defendants. [43] The Defendant Hospital does not challenge the cause of action of negligence as set out in the pleadings but suggests that thepleadings do not demonstrate a reasonable cause of action for breach of fiduciary duty, systemic negligence and fraud. The DefendantRuest has not challenged the certification motion on the basis the pleadings failed to set out a viable cause of action but opposes themotion on the basis of non-compliance with the remaining criteria set out in section 6(1) of the Act. [44] In Tidd et al v.

Province of New Brunswick and Regional Health Authority A, 2021 NBQB 208 , I had the opportunityto review the background of several cases which had been certified on the basis of systemic negligence. In particular, I noted atparagraphs 94 to 96 the following: [94] The Plaintiffs suggest that the request to certify this Class action is very similar to other systemic negligence actions that have beencertified in the case of institutional settings. The Plaintiffs rely upon the successful certification hearings in Seed v. Ontario; Rumley v.British Columbia; Slark (Litigation Guardian of) v. Ontario; Cloud v.

Canada (Attorney General), (ON CA), [2004]

O.J. No. 4924 (C.A.) ; Cavanaugh v. Grenville Christian College, 2012 ONSC 2995 ; Elwin v. Nova Scotia Home for Coloured Children, 2013 NSSC 411 ; Weremy v. The Government of Manitoba, 2020 MBQB 85 and Templin v. HMQ Ontario, 2016 ONSC 7853 . [95] The Defending parties challenge the Plaintiffs assertion that the common issues as framed in this case are similar to those found in the cases previously cited, to the contrary, the defending parties submit that the facts and proposed common issues in this matter are very distinguishable from those found in the earlier decisions.

A brief overview of the salient facts of these key jurisprudential precedents is warranted to adequately consider the position of both parties. Seed v. Ontario A Class action was certified in the case of a school for visually impaired children against the Province of Ontario where the allegations included physical, emotional and sexual abuse against the children. The defendants chose not to file a response to the certification motion. Rumley v. British Columbia A Class action was certified in the case of a residential school for deaf children against the Province of British Columbia between 1950 and 1992.

The allegations were of systemic negligence in the operation and management of the school. Slark v. Ontario A Class action was certified in the case of a residential facility for disabled adults and children against the Province of Ontario. The allegations of systemic negligence in the operation of the facility included inhumane conditions, sexual and physical abuse, as well as forced unpaid labour. The representative plaintiffs filed affidavits of their own and were represented by litigation guardians with no interest in the outcome. The defendants did not file a response to the certification motion. Cloud v.

Canada A Class action was certified in the case of the Mohawk Institute Residential School which was operated by the federal government between 1922 and 1969. The common issues included systemic negligence resulting in physical and sexual abuse as well as the purpose for the operation of the facility itself – the assimilation of indigenous students to western culture. Cavanaugh v.

Grenville Christian College A Class action was certified against an Anglican boarding school where the allegations were of systemic, psychological, sexual and physical abuse perpetrated by two fathers tasked with the operation and management of the facility. Elwin v. Nova Scotia Home for Coloured Children A Class action was certified against the Province of Nova Scotia as a result of their operation of a facility to care for black children that were wards of the Province. The allegations were that the children were subjected to physical, mental and sexual abuse.

Weremy v. The Government of Manitoba A Class action was certified against the Province of Manitoba as a result, its operation of a home for developmentally delayed and disabled persons. The allegations were systemic negligence and breach of fiduciary duty. Templin v. HMQ Ontario . A Class action was certified against the Province of Ontario as a result of its operation of residential psychiatric treatment center for children.

The Defendant consented to the motion for certification. [96] There are understandably distinguishing features between the cases referred to in the preceding paragraph and the facts of the case currently before the Court. However, there are many similarities between the challenges and issues considered by the courts in the earlier matters and the present matter. The commonality in all of these cases, including the present one, is the existence of claims of systemic negligence involving vulnerable persons. [ 45 ] The Defendants assert that this case is distinguishable from other systemic negligence cases.

Unlike the situations facing the courts in cases such as Tidd , and those reviewed by the Court in Tidd , the Defendants maintain that the Plaintiff has failed to explain to the Court the theory of the case which supports an allegation of systemic negligence in this matter. I disagree. There is no doubt that the pleadings in this case advance some novel claims not previously considered in the context of class proceedings.

However, novelty itself is not lethal to a request for certification. [ 46 ] In this matter, the Plaintiff’s allegations of systemic negligence hinge on the suggestion that the Defendant Hospital was aware that there was a potential cause for the alleged increase in emergency deliveries. Further, the Plaintiff maintains that the Defendant Hospital suspected the Defendant Ruest as the person potentially responsible for this anomaly and failed to act prior to March 27 th , 2019.

I am unable to conclude, as suggested by the Defendants, that it is plain and obvious that the Plaintiff’s action for systemic negligence as pled could not proceed. [ 47 ] The Defendants maintain that the Plaintiff has failed to adequately plead a cause of action of breach of fiduciary duty. The Defendant Hospital suggests that the Plaintiff has failed to plead the required elements to establish a fiduciary duty or a breach thereof. The existence of a fiduciary duty between patients and the medical providers who have been entrusted with their care is not a new legal concept.

For the purposes of an analysis of a viable cause of action pursuant to section 6(1)(

a) of the Act , the Plaintiff has adequately set out this potential cause of action. [ 48 ] The Notice of Action pleads systemic negligence, fraud, breach of a non-delegable duty and breach of fiduciary duty against the Defendant Hospital and its employees, including the Defendant Ruest. In reviewing the pleadings, the Plaintiff has set out the particulars in support of the causes of action pled and filed affidavit evidence of potential Class members, Dr. Anand and Dr. Barrett.

As explained by Chief Justice Drapeau in Gay , the question at this point is not whether the claims are likely to succeed at trial but whether a cause of action is advanced in the pleadings. In my view, a consideration of the pleadings does establish a viable cause of action. The issue of the adequacy of the evidentiary record presented in support of the motion for

summary judgment becomes more of an issue as we proceed to the remaining criteria laid out in section 6(1) of the Act .

However, the request for certification has met the necessary criteria in terms of advancing a formal cause of action in the pleadings. [ 49 ] The Plaintiff has revised the definition of the proposed class from that found in the Statement of Claim to the following advanced at the certification motion: All persons who allege they received oxytocin that was not appropriately administered as a result of Nicole Ruest’s actions while a patient in the Moncton City Hospital between September 2010 and March 2019, and claims they suffered harm or loss as a result. [ 50 ] The Plaintiff asserts that the affidavit evidence submitted by the proposed class members satisfies the criteria under the Act that there be an identifiable class of two or more people.

Several of the deponents confirm that the Defendant Ruest was present during their labor and administered medications to them. The Plaintiff suggests that this certification requirement will be met if the court is satisfied there is “ some basis in fact” to support it. The Plaintiff refers the Court to Chief Justice Drapeau’s, as he then was, comments on this criterion and the “some basis in fact” analysis in Gay at paragraph 100 and 101 as follows: [100] In general terms, Hollick sheds light on the requirements of an identifiable class for s. 6(1)(

b) purposes. We would summarize them as follows: (1) it must be shown that membership in the proposed Class is ascertainable by objective criteria, without having

to delve into the merits of the action (para. 17); (2) there must be a rational relationship between the proposed Class and theasserted common issues (para. 19); and (3) the plaintiffs have a low threshold obligation to show that the proposed Class is not undulybroad and that it cannot be defined more narrowly without arbitrarily excluding individuals who share the same interest in the resolutionof the common issues (paras. 20-21). [101] The “identifiable class” requirement entails a fair degree of interconnection or interdependence between the criteriaunder ss. 6(1)(b) (class definition) and 6(1)(c) (common issues).

As the Ontario Court of Appeal states in Cloud: “[…] theidentification of common issues will often depend in part upon the definition of the identifiable class and vice versa. This particularinterrelationship is reflected in the requirement that there be some rational relationship between the identifiable class and the commonissues.

Hence the discussion of common issues must have in mind the identifiable class, just as the discussion of identifiable classproceeded in light of the common issues” (para. 48). [Emphasis mine] [51] The Defendants argue that the Plaintiff has failed to demonstrate that there is an identifiable class, and the proposed definition istoo broad and not sufficiently connected to the common issues as proposed. The Defendant Hospital refers the Court to Mouhteros v.DeVry Canada Inc. (c.o.b. DeVry Institute of Technology), (ON SC), [1998] O.J.

No 2786 at paragraph 17 insupport of their assertion that the current proposed class definition is too broad: 17 In my view, there must be some connection between the class definition and the common issues. The mere fact that a group ofpeople is identifiable is not sufficient to render them a class for the purposes of the Act. Indeed, such a connection is contemplated by thewording of s. 5(1)(c), which mandates that the claims or defences of the class members raise common issues.

It is not necessary that theclaims or defences of the class members all raise the same common issues, some differences can be accommodated through the creationof subclasses. [Emphasis mine] [52] The Defendants argue strenuously that the proposed class definition involves an impermissible subjective test. The DefendantRuest points out that whether or not a potential class member was actually harmed by her could only be determined following anindividual trial. The Defendants suggest that there is no precedent for the certification of a class definition as proposed in this case.

TheDefendants suggest that this proposed class action is very different from other class proceedings alleging negligence or injury causedwhile an individual was a patient or a resident of an institution. The Defendants maintain that the Plaintiff has failed to produce a theoryof their case which would allow this Court to consider the appropriateness of a class definition as suggested. [53] The Defendant Hospital refers the Court to the discussion on the importance of class definition set out by the Autor W.K.

Branch, (now Justice Branch) in his text Class Actions in Canada (2nd edition), 4.6, page 4-12 to 4-13 as follows: It is the representative plaintiff’s burden to establish some basis in fact for the existence and scope of the class. The definition should bepleaded in the original pleadings. The purpose of the class definition is threefold: (

a) it identifies those persons who have a potentialclaim for relief against the defendant; (

b) it defines the parameters of the lawsuit so as to identify those persons who are bound by itsresult; and (

c) it describes who is entitled to notice. The courts will consider whether the definition of the purported class provides abasis by which members of the class can reasonably be identified in an objective manner. The definition must create a structurewhereby it is possible to assess whether or not a particular person falls within the class.

Definitions should avoid criteria that are subjective or that depend on the merits. Such

definitions frustrate efforts to identify classmembers and contravene the policy against considering the merits of a claim in deciding whether to certify. [Emphasis mine] [54] The Plaintiff maintains that the proposed definition does allow a person to determine whether or not they fit into the class. ThePlaintiff points out that a proper class definition does not require that all members of the class are ultimately successful in proving theirclaims at trial.

The Plaintiff acknowledges that some individuals may be properly part of the class but not be successful in meeting thenecessary burden of proof to establish their claim at a common issues trial, or an individual damages assessment. However, the Plaintiffsuggests that the fact some class members may ultimately not be successful is not a reason to find that the proposed class definition iswanting. [55] The Defendants assert that the proposed definition in this case attempts to invoke an impermissible merits-based definition. TheDefendant Ruest refers the Court to Justice Benotto’s analysis in Cirillo v.

Ontarion, 2021 ONCA 353 at paragraphs 53-54 where theOntario Court of Appeal refused the certification of a class definition which included a causation criterion:

[53] A causation criterion is inherently merit-based. In Ragoonanan Estate v. Imperial Tobacco (2005), (ON SC),78 O.R. (3d) 98 (S.C.), aff’d (2008) (ON SCDC), 236 O.A.C. 199 (Div. Ct.), the court did not certify a classproceeding because there was a causation element in the class identification. The proposed action was on behalf of persons whoclaimed that a certain brand of cigarette ignited furniture or a mattress.

The motion judge held, at para. 37: [The proposed class definition] is merits-based because its application depends on proof of damage caused by fire and also on theresolution of a number of other issues of causation which may be seriously in dispute. These would include the question whether the firestarted on upholstered furniture, or a mattress; whether the ignition source of the fire was a cigarette; and, if so, whether it wasmanufactured by the defendant….

For these reasons, I find that the membership of such a class would not be sufficiently "identifiable"within the meaning of s. 5(1)(b). [54] Here, the difficulty is that a factual determination is required as to the cause of the delay beyond 24 hours. In an attempt tocircumvent this problem, the appellant submitted that the right to a hearing is actually “within a reasonable time”.

This qualification isalso problematic for it results in a class definition that would be based on individual assessments and would be incapable ofobjective determination. [Emphasis mine] [56] In the present matter, I struggle to understand how membership in this proposed class can be ascertained on the basis of objectivecriteria that does not require “delving into merits”, (Gay, paragraph 100). In order to determine if someone is a member of the proposedclass, it is necessary to determine that oxytocin was not appropriately administered by the Defendant Ruest, and they suffered harm.

Theclass definition includes challenges both in terms of the subjective criteria of an individual’s determination that they allege the receivedoxytocin and then in meeting the objective criteria which forms the balance of the class definition. In order to determine that a potentialclass member met the terms of the class definition, the objective criteria can only be satisfied following an analysis of the merits of theaction. In my view, the class definition proposed in this case requires the determination of a causation element before membership in theclass can be confirmed.

This is the same problem identified by Justice Benotto in Cirillo. [57] In Nette v. Stiles, 2010 ABQB 14, [2010] CarswellAlta 44, Justice Belzil considered a motion requesting the certification of aclass action. The claim arose out of catastrophic injuries the Plaintiff alleges were caused by the Defendant who was a doctor ofchiropractic who had provided chiropractic treatment.

The proposed defendants argued that the class definition advanced by the Plaintiffwas too vague. [58] In Nette, Justice Belzil was of the view that the proposed class definition was unworkable and would require a finding ofcausation in the case of each potential class member. Justice Belzil reviewed his preoccupations at paragraphs 82 to 88 as follows: [82] In Hollick v.

Toronto (City), 2001 SCC 68 , [2001] 3 S.C.R. 158, at para. 18, the Supreme Court of Canada definedthe necessity of common issues being substantial ingredients in each of the class member claims: A more difficult question is whether "the claims ... of the class members raise common issues", as required by s. 5(1)(

c) of the ClassProceedings Act, 1992. As I wrote in Western Canadian Shopping Centres, the underlying question is "whether allowing the suitto proceed as a representative one will avoid duplication of fact-finding or legal analysis". Thus an issue will be common "onlywhere its resolution is necessary to the resolution of each class member's claim" (para. 39).

Further, [page172] an issue will not be"common" in the requisite sense unless the issue is a "substantial ... ingredient" of each of the class members' claims. [83] The Plaintiffs argue that the proposed class definition is narrow as it includes only individuals who suffered personal injury asa result of receiving spinal adjustments to C1 and C2 vertebrae, thus the requirement of common issues is satisfied. [84] The Defendants argue that the claims would have very few, if any, common issues, and that, in essence, the Plaintiffsare proposing that multiple chiropractic malpractice claims be prosecuted under the umbrella of a single class proceeding. [85] Evidence was tendered during this application to the effect that chiropractic patients may or may not receive C1, C2adjustments, and may or may not be aware of what treatments they receive.

[86 ] Even if one assumes that each of the potential class plaintiffs has sustained an injury, the issue of whether such injury was caused by C1, C2 adjustment is extremely complicated and likely would require a causation finding in each case to determine the origin of the injury. [87] Moreover, the causation of injuries may arise from multiple causes, including pre-existing conditions, and is subject to numerous variables including prior medical condition, age, and physical conditioning. [88] In addition, the evidence before me establishes that there are many variables in chiropractic, including terminology, practice and procedures, and duration of treatments, all of which are modified to suit the needs of the individual patient.

There are variables in terms of how much information is communicated to the patient, and when, and in what terms. [Emphasis mine] [ 59 ] The challenge with the proposed class definition also concerns its link to the common issues as framed. While the common issues set out questions which could appropriated be considered in the context of a class proceeding as they involve the general determinations on issues of duty of care, fiduciary duty, liability and potential damages, these questions are not, in my view, rationally tied to the class definition.

The class definition requires an individual determination on the merits of the action in order to ascertain whether the individual received and inappropriate administration of oxytocin. This determination requires a trial with expert evidence unique to each claimant. These individual determinations are distinguishable from the general nature of the common issues posed in the certification request. [ 60 ] The Plaintiff set out the proposed common issues in

Schedule B of their Notice of Motion as follows: Negligence

(1) Did either of the Defendants owe a duty of care to the class members to protect them from actionable harm?

(2) If the answer to question 1 is “yes”, did the Defendants breach their duty of care? Fiduciary Duty

(3) Did either of the Defendants owe a fiduciary duty to the class members to protect them from actionable harm?

(4) If the answer to question 3 is “yes”, did the Defendants breach their fiduciary duty? Liability If the answers to (2) and/or (4) are “yes”, are the Defendants directly and/or vicariously liable for the actionable harm perpetrated by the Defendants, or either of them, on the Class Members? Aggregate Damages If either of the Defendants breached their fiduciary duty and/or duty of care to class members can damages be assessed on an aggregate basis? If so, in what amount? Punitive Damages Are the class members entitled to an award of aggravated, exemplary or punitive damages based on the Defendant’s conduct? If so, in

what amount? [ 61 ] The Defendant Ruest highlights the fact that the Plaintiff has not included causation as a common issue to be certified. The Defendant Ruest suggests the failure to include causation as a common question is because this issue can only be resolved on an individual, not a class basis. The Defendant Ruest sets out the factual challenge in establishing commonality at paragraph 61 of her pre- hearing brief as follows: 61. The Plaintiff’s evidence on this motion demonstrates that any alleged harm suffered by the members of the class occurred as a result of entirely unique facts.

Some affiants claim to have been purposely induced, some did not. Some claim that Ms. Ruest was present at their birth, others do not. Some allege harm resulting from physical injury, others claim mental distress alone. Some allege harm resulting from an emergency c-section, others allege harm resulting from vaginal deliveries which seemingly without the assistance of instruments. There is no basis to believe that all these alleged experiences were caused by a single, discernable set of facts, let alone a set of facts that involves Ms. Ruest.

Further, the uncontested expert evidence demonstrates that any of the harms described by the potential class members could have resulted from a labour and delivery without the improper administration of oxytocin. [ 62 ] Justice Belzil ultimately determined that a class proceeding was not the preferable proceeding in Nette and denied the request for certification. Justice Belzil explained his reasoning at paragraph 100 as follows: [100] If certification were ordered, the result would be, in essence, a trial involving multiple chiropractic malpractice claims.

Each claim would require individualized evidence dealing with a myriad of issues including causation, consent, and damages . Each issue would be subject to many variables, and dependent on the particular circumstances of each plaintiff pre- and post-treatment. This would result in a lengthy, incredibly complex and costly trial which would be the antithesis of judicial economy. I do not accept that, by any measure, this would be the preferable procedure for resolving these claims. [Emphasis mine] [ 63 ] In Curtis v.

Medcan Health Management Inc. , 2021 ONSC 4584 , Justice Perrell set out his reasoning for determining that a class proceeding was not the preferable procedure to follow at paragraphs 98 and 99: [98] The explanation as to why a class action is not the preferable procedure for the immediate case is that while enough will be accomplished in the immediate case at the common issues trial to satisfy the low bar of the common issues criterion, that accomplishment will be infinitesimal compared to what the Class Member will need to establish at his or her inevitable individual issues trial, where the Class member would be exposed to an adverse costs award if he or she were unsuccessful.

In these circumstances, proceeding directly to an individual issues trial without a common issues trial is the preferable procedure to resolving the Class Members’ claims.[53] A class proceeding is not preferable to just getting on with an individual action. [99] In the immediate case, assuming that the Class Members are successful with respect to common issues 1 to 4, there is no possibility of an aggregate assessment of their claims and the action will inevitability proceed to individual issues trials.

In other words, in terms of access to justice, there is marginal utility of a common issues trial in the immediate case for the Class Members. [Emphasis mine] [ 64 ] I find myself arriving at the same conclusion in this matter as Justice Belzil in Nette and Justice Perrell in Curtis . If this matter is certified, there will still need to be individual evidence for each potential class member to determine if the class member received oxytocin, if the administration of oxytocin was illicit or not as prescribed, and if the resulting emergency birth was caused by the administration of the illicit oxytocin.

While a common issues trial could conceivably determine the issue of systemic negligence in terms of the Defendant Hospital’s awareness of a problem and potential failure to act, this pales in comparison to the individual determinations that would be necessary first to determine if someone was a member of the class and then an adjudication of the merits of their potential claim. [ 65 ] The facts considered by Justice Benotto in Cirillo are quite distinguishable from those currently before the Court.

In Cirillo , the plaintiff sought certification of a class proceeding claiming damages as a result of the Crown’s failure to hold timely bail hearings for accused persons. Despite the very different factual foundations, I find assistance in Justice Benotto’s analysis of both the common issues and the preferable procedure criteria.

In particular, I refer to his comment at paragraphs 57, 58, and 69 as follows: [57] The appellant submits that the question to be asked is whether there is “some basis in fact” supporting a conclusion that the proposed common issues are common to all class members in the sense that their resolution will avoid duplication of fact-finding or legal analysis: Pro-Sys Consultants Ltd. v. Microsoft Corp., 2013 SCC 57 , [2013] 3 S.C.R. 477 , at para. 102 ; Western Canadian Shopping Centres Inc. v. Dutton , 2001 SCC 46 , [2001] 2 S.C.R. 534 , at para. 39 .

[58] Here, the motion judge quoted the following passage from a leading text on class actions in describing the cause of action requirement: The [common issue] requirement is set out succinctly in Warren Winkler, Paul Perell, Jasminka Kalajdzic, and Alison Warner, The Law of Class Actions in Canada (Toronto: Canada Law Book, 2014), 112-13: [I]f an issue can be resolved only by asking it of each class member, it is not a common issue… An issue is not ‘common’ simply because the same question arises in connection with the claim of each class member, if that issue can only be resolved by inquiry into the circumstances of each individual’s claim...

The fact of a common cause of action asserted by all class members does not in itself give rise to a common issue since the actual determination of liability for each class member may require individualized assessments. [69] Despite the allegation of a systemic wrong, a class proceeding is not the preferab

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