The court found common issues on breach of privacy and related vicarious responsibility
The BC Supreme Court has certified a class action lawsuit involving an unlicensed nurse who worked at the BC Women’s Hospital and Health Centre (BCWH).
In Massie v. Provincial Health Services Authority, 2023 BCSC 1275, Miranda Massie applied to certify an action as a class proceeding against the Provincial Health Services Authority (PHSA), which manages the programs and services at the BCWH.
Massie alleged that she received care at the BCWH from Brigitte Cleroux, who turned out to be an unlicensed nurse. Massie commenced a class action lawsuit for legal claims arising from Cleroux’s involvement with patient care while working at the BCWH. Massie sought to certify common issues in negligence, battery, breach of privacy, vicarious liability, and for damages, including aggregate and punitive damages.
The proposed class action is against PHSA. Cleroux is not impleaded as a defendant. PHSA argued that liability should not be imposed on it for “Cleroux’s fraud,” which was, among other things, “abhorrent” and “unauthorized.” PHSA contended that Cleroux fraudulently worked for the PHSA, but when PHSA could not confirm that Cleroux was a registered nurse, it terminated her employment immediately.
The proposed class is all those patients at BCWH who received treatments from Cleroux between June 1, 2020 and June 30, 2021. Massie tendered evidence from five other proposed class members who described aspects of their experiences as patients of the BCWH.
The BC Supreme Court noted that the experiences of these six proposed class members at the BCWH were diverse and individualized. The specific evidence of proposed class members includes evidence of an individual who interacted with Cleroux and was administered medication in a manner considered painful. There was also evidence of one who had blood taken by Cleroux, which caused discomfort.
The court noted that the PHSA’s evidence suggested that Cleroux performed various nursing activities, such as patient admission, taking vital signs, observing patient symptoms and breathing, administering intravenous medication, and participating in the discharge process.
The court concluded that the diversity of patient experiences at the BCWH resulted from the range of activities that Cleroux was involved in as a working nurse at the hospital. The court found that the diversity in experiences will likely be across all proposed class members.
Miranda Massie, as the representative plaintiff of the proposed class, claimed that PHSA is liable to the class members for negligently hiring Cleroux and breaching the standard of care to take reasonable steps to ensure that nurses who treated the class members were adequately licensed and reasonably competent.
Massie also alleged that PSHA is liable for committing the tort of battery on every class member that Cleroux treated and is vicariously responsible for her actions. Additionally, the PSHA allegedly committed the statutory tort of willful violation of privacy on every class member, and the PSHA is vicariously liable for her actions. The plaintiff claimed damages, including punitive damages.
The court noted that the test for class certification requires that the pleadings disclose a cause of action, there is an identifiable class of two or more persons, the claims of the class members raise common issues, that a class proceeding would be the preferable procedure, and that there is a representative plaintiff.
The court found that for claims against PHSA in negligence and battery, the necessity of proving causation of damages and compensable harm will likely be particular to each proposed class member, requiring individual trials on a significant aspect of such claims.
The court emphasized that liability presumes causation of harm. Each class member likely had different experiences with Cleroux, given the variety of her nursing tasks at the BCWH. The court acknowledged the possibility that there would be significant variety in the extent to which any of the class members may have been physically or emotionally harmed by the care received from Cleroux.
Likewise, battery requires proof of causation and harmful contact. The court found no basis in that such issues would be common across the proposed class.
However, for the claim of breach of privacy and the PHSA’s related alleged vicarious liability and punitive damages, the court was satisfied that there are common issues, and a class action is a preferable procedure for the prosecution of such a claim. Accordingly, the court certified the class action on such a basis.
