Ontario court certifies class action on former patients' anxiety from notice of risk of infection

Clinic failed to follow proper infection control; former patients had to take tests

Ontario court certifies class action on former patients' anxiety from notice of risk of infection
Failure of clinic to follow infection procedure resulted in risk of patients contracting infection

The Ontario Superior Court of Justice has certified a class action proceeding against an endoscopy clinic for anxiety and inconvenience suffered by former patients due to a public health notice of risk of infection stemming from the clinic’s failure to follow infection protocol and prevention practices.

In McGee v. Farazli et al., 2022 ONSC 4105, Dr. Christiane Farazli and C. Farazli Medicine Professional Corporation was an endoscopy clinic found by the College of Physicians and Surgeons of Ontario (CPSO) to not follow infection control and prevention practices. Ottawa Public Health (OPH) notified former patients of a possible risk of infection and advised them to be tested for HIV, hepatitis B, and hepatitis C.

While several individuals tested positive, OPH was unable to confirm transmission through the clinic. Despite testing negative, Fern McGee sought to amend the class proceeding certification. She sought “compensation for exposure to enhanced risk of infection for the shock, trauma, and inconvenience inherent in responding to the public health notice.”

Farazli opposed the certification. Despite conceding that McGee was a suitable class representative and the case met the identifiable class criterion, they argued that there were no truly common issues and that each member would have to prove both damages and causation, making a global determination of liability unreliable.

The court certified the class proceeding.

Contrary to Farazli’s arguments, the court found that the entire class was affected by the receipt of the notice of risk and the need to take action. The existence and extent of duty of care and whether the failure fell below the standard of care are questions common to all members of the class, said the court.

Another question was whether Farazli was liable for the anxiety, inconvenience, and need to submit blood tests without proof of injury or actual infection. There was some basis to the argument that it was plain and obvious that Farazli’s failure to follow proper procedure triggered a duty-bound response by public health officials, said the court, adding that a class action proceeding wouldl also avoid duplicate findings of fact and legal analysis.

The court concluded that the case was an appropriate case for certification.

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