On July 25, 2023, the Supreme Court of British Columbia certified a class action against the Provincial Health Services Authority (the “PHSA”) for hiring an allegedly unlicensed nurse, Bridgette Cleroux. Ms. Cleroux worked at BC Women’s Hospital and Health Centre (the “BCWH”) during 2020 and 2021 and provided nursing care, directly and indirectly, to approximately 1,150 patients who attended for gynecological surgical procedures.
One of those patients, the plaintiff Miranda Massie (“Ms. Massie”), sought to certify common issues in negligence, battery, breach of privacy, vicarious liability, and damages, including aggregate and punitive damages.
ISSUE
At issue was whether a class proceeding provides a civil litigation remedy for all patients at the BCWH who Ms. Cleroux cared for, directly or indirectly.
FACTS
Ms. Massie alleged that Ms. Cleroux worked as a registered nurse with the BCWH from June 1, 2020 to June 30, 2021. She complained that Ms. Cleroux observed her in a very private medical procedure and had access to her medical records and medical information, though Ms. Cleroux was “not lawfully qualified as a nurse” and “obtained her employment using falsified documentation and/or credentials which PHSA knew or should have known about.”
The PHSA submitted that it should not be liable for Ms. Cleroux’s “fraud,” and that certification would not be legally appropriate in the circumstances of the case.
DECISION
The judge certified breach of privacy, vicarious liability and punitive damages as common issues, but did not certify negligence, battery, damages or aggregate damages as common issues.
Cause of Action
The judge decided that the elements of the cause of action for negligence and battery were not made out because each class member’s interaction with Ms. Cleroux differed. However, the elements of the cause of action for breach of privacy, vicarious liability and punitive damages were made out because (1) all class members were owed privacy as patients in a private medical setting; (2) Ms. Cleroux’s actions were sufficiently related to conduct authorized by the PHSA, and the PHSA created or enhanced the risk to the class members by allowing Ms. Cleroux to treat vulnerable class members and failing to respond appropriately; and (3) the PHSA’s conduct supports Ms. Massie’s assertion of a “marked departure from ordinary standards of decent behaviour.”
Common Issues
The plaintiff, Ms. Massie, submitted that the experiences of all class members were common, but the defendant, PHSA, submitted that the claim failed to raise common issues and would break down into many individual trials.
Ultimately, the judge found that negligence, battery, damages and aggregate damages were not common issues because the causation and extent of harm that each proposed class member experienced likely significantly differed given Ms. Cleroux’s various nursing tasks at the BCWH. The judge therefore found that proving causation of damage and compensable harm would likely be particular to each proposed class member, requiring individual trials.
The judge did, however, find breach of privacy and vicarious liability to be common issues because of Ms. Cleroux’s presence during and involvement with patient care as part of gynecological surgeries. Resolving these common issues would promote efficiency and fairness by avoiding duplication of fact finding and legal analysis. Punitive damages was also certified as a common issue because the facts pleaded and evidence supported a finding that the PHSA’s conduct was a “marked departure of the standards of decent behaviour.”
Preferable Procedure
The judge held that a class action is the preferable procedure to resolve the common issues and advance the action. With respect to the alleged breach of privacy, causation and the quantum of damages can be categorized based on the types of interactions that each class member had with Ms. Cleroux. While damages assessment may involve individualized aspects, the court heavily favours certification given that (1) the court has considerable power to constrain and control the procedure required to resolve residual issues and (2) courts have shown considerable tolerance to cases that would require much more involved individual issues assessments.
Further, less than one percent of all proposed class members have pursued individual claims. The judge stated that the majority of proposed class members should not be deprived of the benefits of a class proceeding because other members have chosen to pursue their own claims individually. To do so would be contrary to access to justice.
Finally, the PHSA stated that alternative litigation strategies exist, but the judge held that a class action is likely the most practical and efficient means to resolve the common issues. Therefore, the judge certified the class action for the issues of breach of privacy, vicarious liability and punitive damages.
Decision Date: July 25, 2023
Jurisdiction: Supreme Court of British Columbia
Citation: Massie v Provincial Health Services Authority, 2023 BCSC 1275 (CanLII)
Media: Fake nurse Brigitte Cleroux faces new criminal charges in Surrey, B.C., Seven B.C. women sue over hospital care by fake nurse, The nurse imposter.
