Canada: The Supreme Court Of Nova Scotia Denies Class Certification In Dental Malpractice Case, Choyce v. Guam: A Closer Look At The Requirements And Implications

INTRODUCTION

The Supreme Court of Nova Scotia has recently dismissed an application for class certification for failing to meet the requirements set out in Nova Scotia's Class Proceedings Act, S.N.S. 2007, c. 38 (the "Act").

BACKGROUND

The representative plaintiffs, Sunyata Choyce and Peyton Binder (represented by her litigation guardian, Ryan Binder), (collectively, the "Plaintiffs"), applied for class certification under the Act for an action in negligence, battery, and assault against the defendant dentist, Dr. Errol Guam (the "Defendant").

The Plaintiffs alleged that the Defendant improperly used behavioural management techniques ("BMTs") such as restraining, hitting, and threatening minor patients over the course of his 50-year dental practice. The Plaintiffs argued that a single trial involving "common issues" underlying these allegations, including the standard of care, informed consent, and particular limitations issues, would simplify the fact-finding process and avoid unnecessary duplication of witness evidence. The Defendants argued that the Plaintiffs' application should be dismissed because it failed to meet the necessary requirements for class certification as set out in the Act.

BENEFITS OF CLASS ACTION PROCEEDINGS

The Court outlined the policy reasons to support class action proceedings, including improving access to justice, promoting behaviour modification, the interests of the judicial economy, and avoiding multiple proceedings against one common defendant.

REQUIREMENTS

At the certification stage of a class proceeding, the Court's analysis does not involve an assessment of the claim's merits. In order to succeed in having a class action certified, the prospective plaintiffs must meet the requirements of s. 7 of the Act.

ANALYSIS

The Court declined to certify the Plaintiffs' class. In arriving at this conclusion, the Court reviewed each of the requirements under the Act.

1. Section 7(1)(a) – Do the pleadings and/or the notice of application disclose a cause of action?

Under the first step of the test, the Court must determine whether at least one cause of action is made out in the Plaintiffs' claim. This does not involve an assessment of the claim's strength (or weakness), but only whether the Plaintiffs' action is legally sound or a "good claim at law".

In this case, the defendants conceded, and the court agreed, that the Plaintiffs' claim disclosed an action for professional negligence, assault, and battery.

2. Section 7(1)(b) – Is there an identifiable class of two or more persons that would be represented by a representative party?

In order to succeed in an application for class certification, the individuals who make up the proposed "class" must be able to determine their membership at the outset of the litigation by using a class definition that is based on stated, objective criteria and that do not require an assessment of the merits of the action itself. In other words, the criteria for class membership cannot depend on the outcome of the action or the rulings on any of the common issues. This is a critical requirement because the class definition identifies which individuals are entitled to notice and relief under the Act, and which individuals are bound by any judgments in the action.

In this case, the Plaintiffs' proposed the following class definition:

All natural persons who suffered physical and psychological harm while subjected to substandard, cruel and aberrant [BMTs] by the Defendant during the course of their dental treatment with the Defendant between the date the Defendant was first licensed to work as a dentist until he was suspended from practice.

The Defendant argued that the Plaintiffs' application must fail at this stage of the test because the class definition was based entirely on subjective criteria which depended on the outcome of the common issues in the action.

The Court agreed with the Defendant's arguments, finding that the Plaintiffs' proposed class definition, which included individuals who had experienced "substandard, cruel and aberrant" BMTs by the Defendant, would first require a ruling on whether the Defendant's practices were indeed substandard, cruel, and aberrant, a matter which the Plaintiffs themselves argued was a "common issue" for the class. As a result, an individual would be unable to determine whether they fell within the class definition until an alleged "common issue" in the litigation was determined.

The Court rejected the Plaintiffs' attempt to fix this deficiency by adding "claim to have suffered" to the proposed definition because this did not eliminate the fact that individuals could also not claim to be subject to substandard BMTs by the Defendant until the Court made a determination on that common issue.

Given that the Plaintiffs' failed to propose a definition that included an "identifiable class", the Court held that the Plaintiffs' application for class certification must fail. However, in the event the Court erred with respect to this issue, the Court continued with an analysis of the remaining requirements under the Act.

3. Section 7(1)(c) – Do the claims of the class members raise a common issue, whether or not the common issue predominates over the other issues affecting only individual members?

At this stage, the Court must determine whether there is a common issue among the claims of class members that would allow the action to proceed as a class action without unnecessary duplication of fact-finding or legal analyses.

The common issues do not need to be identical; however, they must share a substantial common ingredient to justify the class action. To allow claims that lack this commonality such that each individual would require separate hearings would be contrary to the interests and benefits which class proceedings are intended to advance.

In this case, the Plaintiffs proposed several common issues with respect to the allegation of professional negligence, assault and battery due to lack of informed consent, possible remedies, and certain limitations issues.

(a) Professional Negligence

The Plaintiffs' proposed common issues with respect to the professional negligence allegation against the Defendant included whether the Defendant owed the class members a duty of care and whether the Defendant breached the standard of care in using particular BMTs.

The Court held that determining whether the standard of care was breached would require separate hearings and considerations of the individual circumstances of each claim, such as every instance of a BMT experienced by a class member. Therefore, it would not be possible to make a ruling on the standard of care issue that would apply to the entire class without duplicating the fact-finding or legal analyses in the action. The Court held that:

[55] The necessary implication is that there is no scope for a blanket ruling with respect to each BMT, whether or not it is substandard, and/or otherwise fails to meet the duty of care. A finding that the Defendant's alleged misconduct was substandard with respect to one Plaintiff based upon an assessment of the factors of that individual's case cannot be transformed into a blanket statement that would be applicable to the circumstances of all class members.

[56] The Plaintiffs' case is quite different, in this respect, from a decision such as Rumley, which they have cited. Rumley dealt with claims of sexual abuse at a residential school. The claim rested upon allegations of institutional or "systemic negligence", including "the failure to have in place management and operations procedures that would reasonably have prevented abuse". As a consequence, the Court determined that "...these are actions (or omissions) whose reasonability can be determined without reference to the circumstances of any individual class member" (para. 30).

[57] The plethora of factors which would have to be analyzed in each individual Plaintiff's case renders the proposed common issue relating to the standard of care unsuited to the "commonality" requirement of the Act.

(b) Assault and Battery Due to Lack of Informed Consent

Similarly, the Court held that the proposed common issue as to the requisite standard of care for informed consent with respect to treatment and use of BMTs on minor patients was a factual inquiry that must be determined on the basis of all the circumstances of each case and could therefore not be a common issue.

(c) Remedies

In their application, the Plaintiffs' proposed that the quantum of damages for pain and suffering and punitive damages could be common issues to each class member.

The Court rejected this proposal holding that both quantification and causation are individual exercises that rely on the specific circumstances of each case. On the point of causation, the Court held that the Defendant could only be held liable for damages actually caused by his conduct. This would necessitate a consideration of the facts surrounding each alleged injury. Given that punitive damages awards rely on whether compensatory damages are adequate, whether or not punitive damages can be awarded in a particular case (and the amount thereof) would need to be awarded with reference to each individual case. Ultimately, the Court held that the Plaintiffs' proposed remedies could not be appropriately determined as a common issue.

(d) Limitations Issue

The final issue the Plaintiffs applied to have certified as a common issue was whether adult class members could be exempt from the general limitation period established by s.8 of Nova Scotia's Limitation of Actions Act, S.N.S. 2014, c. 35 (the "LAA"). The LAA provides for a general limitation period of two years following the discovery of a claim.

The Plaintiffs argued they should be exempt from the application of the general limitation period by virtue of s.11 of the LAA, which, generally speaking, exempts claims for battery and assault where the would-be claimant was emotionally, physically, or financially "dependant" on the defendant(s) at the time the injury took place.

The Court disagreed, reasoning that the issue would necessarily involve differentiating between possible class members (some of whom were adults and others who were children), as well as a consideration of the individual circumstances of each claimant at the time they were treated. In other words, it did not follow merely from the fact that a claimant was a patient of the Defendant that they were necessarily in a relationship of dependency. As a result, the Court concluded that the issue was not suitable as a common issue.

4. Section 7(1)(d) – Would a class proceeding be the preferable procedure for the fair and efficient resolution of the dispute?

This issue focuses on whether a class action would be a "fair, efficient, and manageable method of advancing the claim, and also whether the class proceeding would be preferable to other procedures". The relevant factors which the Court must consider are found in s.7(2) of the Act. Generally speaking, the Court must consider whether there is a sufficient commonality of facts or issues of law and whether other procedures would be more practical or efficient than a class proceeding.

The Court concluded that a class action would be a less desirable method than cumulative individual actions. For several of the reasons already reviewed above, the Court reasoned, if a class action was certified, the Court would still be left to perform an individual analysis of virtually all of the issues, including damages, and limitation period issues. As a result, a class action would likely create more complexity as there would be little way to avoid the need for separate proceedings dealing with a host of individual issues. It could not be said that class proceedings would be in the interest of practicality or efficiency.

It was also relevant to the Court that three individual actions had already been commenced against the Defendant, as this evidenced that individual claims could be "sustainable".

In the Court's view, a class action would be contrary to the goals of judicial economy and access to justice because each individual claimant would be left to effectively litigate their individual claims, under the guise of a class action.

Finally, the Court concluded that proceeding with a class action would not advance the goal of modifying the Defendant's behaviour because he would not be exposed to liability or the risk of a damage award until countless individual issues were resolved.

5. Section 7(1)(e) – Is/Are There An Appropriate Representative Plaintiff(s)?

On this issue, the Court held that, while the two Plaintiffs fairly and adequately represented the interests of the class and did not have a conflict of interest with other class members on the common issues, as presented, they failed to produce a plan, setting out a workable method of advancing the claim.

DECISION

Ultimately, the Court declined to certify the Plaintiffs' class action, concluding that, with the exception of s.7(1)(a), the Plaintiffs had failed to meet the criteria of s.7(1) of the Act.

TAKEAWAYS

Class action proceedings secure laudable goals, including judicial economy, efficiency, and access to justice. However, this does not mean that the procedure is available to any group of individuals merely because a common defendant is involved, or even because similar questions of fact and law are engaged.

The requirements for class certification, as codified in s.7 of the Act, set out a strict and difficult test to meet. Parties should be aware of these requirements and critically assess whether surface-level commonality belies significant differences in the experiences, circumstances, and issues facing proposed class members.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.