In a Dec. 19 decision in Scott v. Regional Health Authority B, dba Horizon Health Network, 2024 NBCA 146, the representative plaintiff Jayde Scott was to give birth to twins in 2019 in a Moncton, N.B., hospital. She said she was attended by the nurse, a respondent in the action, Nicole Ruest, who was alleged to have “administered intravenously, without medical authorization” the hormone Oxytocin.
The plaintiff was said to have experienced strong and prolonged contractions distressing her babies and leading her to have an emergency C-section. It was determined that Ruest tampered with the intravenous bag and was terminated from employment the same day.
The claim said that several women had a similar experience with the same nurse prior to the incident and as many as 200 women had voiced similar concerns.
The appellate court noted that there was statistical evidence before the motion judge showing “an unusually high number of emergency deliveries” during the relevant period from 2010 to 2019, when the nurse in question worked in the labour and delivery unit. The evidence before the motion judge was also unchallenged by the respondents.
A certification motion was previously denied by the judge because Scott “was not able to identify the proposed class without delving into the merits of each proposed class member’s claim” and that “the proposed common issues were not sufficiently connected to the proposed class.”
The appellate court said that the motion judge “erred in law by including in her analysis a merits assessment with respect to a claims-based proposed class,” which then tainted her assessment of common issues and preferable procedure criterion.
It went on to say that the judge strayed from the principles of three key precedents when she placed reliance on expert opinions filed by the respondent, whose reports discussed the issue of causation or merits instead of the “some basis in fact” test.
The motion judge also said that “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.” However, the appellate court said that summary judgment was clearly not before her. She had determined that the claim disclosed a viable cause of action governed by the “plain and obvious” test.
The motion judge had accepted the defendants arguments that “interconnection is not established without reference to the low threshold test” and that only individual trials can determine whether a class member was actually harmed, the latter going into the merits. In the acceptance of these arguments, the judge cited a case where certification of a class definition included a causation criterion, unlike the case at hand.
She went on to find that the proposed class definition required determination of a causation element before membership in the class could be confirmed. The appellate court noted this was akin to an analysis for summary judgment.
When reviewing the preferable procedure criterion, she concluded without significant analysis that the class action was not the preferable procedure in what she considered a merits-based action. The appellate court noted that the class action is preferable to resolving common issues and not individual claims.
“The motion judge erred in law in finding the definition of the class in this case could not objectively be determined because, to be part of the class, each member had to know they were inappropriately administered Oxytocin,” the appellate court wrote.
“Her error resides in the fact she concluded the definition required a determination of the merits before the class could be identified. It is sufficient for class members to allege or believe they were inappropriately administered Oxytocin and there is no requirement for an analysis of the merits at that stage.”
The proposed class definition had used the modifiers or limiters “allege” and “claim,” which were “entirely appropriate to circumscribe a class,” the appeal court ruled. The common issues were rationally connected with each class member’s claim, contrary to the motion judge’s conclusion, as it is a claims-based and not a merits-based class.
The motion judge further erred in law by not fully addressing the cost of litigating claims individually, which the appellate court said was the single largest barrier to access to justice. While she considered judicial economy, she did not consider behaviour modification.
The appellate court certified the class definition as “[a]ll 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 claim they suffered harm or loss as a result.”
The class action was certified by Justices Ernest Drapeau, Kathleen Quigg and Charles LeBlond as it was the preferable procedure to follow.
Counsel for the appellants were John McKiggan of McKiggan Hebert Lawyers and Virgina Gillmore.
Counsel for the respondent Regional Health Authority B, dba Horizon Health Network were Ryan Burgoyne and Andrea Pierce of Cox and Palmer.
Counsel for the respondent Nicole Ruest were Andrew Faith and Emily Young of Polley Faith LLP.
They were not immediately available for comment.
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