NS Supreme Court declines to certify class action against dentist accused of assault

The Nova Scotia Supreme Court has declined to certify a class action against a pediatric dentist due to the absence of an “identifiable class.”

In Choyce v. Gaum, 2023 NSSC 177, Sunyata Choyce and Peyton Binder applied for certification of a class action against Dr Errol Gaum. They accused Gaum of using substandard behavioural management techniques (BMT) to handle patients, who were children at the time, during his dental career from 1970 to 2020, including allegations of assault, battery, and negligence.

Gaum was a certified pediatric dentist in Nova Scotia and operated out of several clinics throughout the province, including those on Spring Garden Road in Halifax, at Mic Mac Mall in Dartmouth, and on Granville Road in Bedford. His license was temporarily suspended by the Provincial Dental Board of Nova Scotia in November 2020, pending an investigation of some complaints that have been made against him.

The plaintiffs argued that a trial of common issues on the standard of care, informed consent, and certain limitation issues would save "repetitive expert and factual evidence from hundreds of witnesses." The techniques mentioned in the proposed litigation plan consist of the defendant's alleged use of several BMT methods on individual patients, including shut ups, hand over mouth and nose or hand over mouth alone, slapping and hitting, body restraint, leather strap restraints, threats, denied access to the guardian, and choking.

The plaintiffs proposed to call an expert to provide opinion evidence concerning each BMT category. The plaintiffs further proposed that the court would rule on whether the defendant's use of BMTs was "substandard for each category. The decision would also make a ruling on the presence or absence of informed consent and how, or if, that affects the Defendant's liability". They also asserted that the court could make certain damages awards for any one or number of plaintiffs and, in so doing, create a range of damages.

Identifiable class

The NS Supreme Court explained that to certify the proceeding, there must be an identifiable class of two or more persons that a representative party would represent. A class definition identifies who is entitled to notice of the proceeding, who is bound by any judgment on the common issues, and who is entitled to relief if relief is granted.

The court cited case law stating that the class definition should state objective criteria by which the class members can be identified. Any particular person's claim to membership in the class must be determinable by stated, objective criteria.

Proposed class

The plaintiffs' proposed class is "All natural persons who suffered physical and psychological harm while subjected to substandard, cruel and aberrant Behaviour Management Techniques by the Defendant during 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 plaintiffs argued that the proposed class is defined in objective terms and allows for identifying with potential claims who will be bound by the results and who will be entitled to notice.

The court disagreed with the plaintiffs. The court pointed out that the definition purports to encompass all those who suffered harm due to applying "substandard, cruel and aberrant behaviour management techniques". However, one of the common issues sought to be certified asks whether "the Defendant's use of each of the following behaviour management techniques are substandard". Consequently, unless and until the court makes a ruling on one of the common issues sought to be certified, no single individual can know whether they have been subjected to "substandard, cruel and aberrant behaviour management techniques."

The plaintiffs tried to remedy the court's concern by adding the words "claim to" in the wording of the class definition. Still, the court said that the plaintiff's approach would not address the principal concern for the proposed class definition.

The court wrote in its decision, "Indeed if an individual can never know whether they have been subjected to 'substandard, cruel and aberrant BMTs' absent a Court ruling on that common issue, how can they know whether the BMTs to which they have claimed they were subjected were 'substandard, cruel and aberrant' without the same ruling?"

As the plaintiffs have failed concerning the criteria of an "identifiable class," the court ruled that the class action must fail.