A class action does not, on certification, decide the merits of any claim. What certification does is authorize a single proceeding to address claims that arise from a common factual matrix where individual lawsuits would be impractical, inefficient, or inaccessible. The certification decision is a screening exercise: the court asks whether the pleadings disclose a cause of action, whether there is an identifiable class, whether the issues are genuinely common, and whether a class proceeding is the preferable procedure. Where the answer to all four is yes, the proceeding goes forward as a class action. Where the answer to any of them is no, that aspect of the case must be resolved differently, typically through individual litigation.
Massie v Provincial Health Services Authority, 2023 BCSC 1275, is a case in which the answer was mixed. The Supreme Court of British Columbia certified some causes of action but not others. The decision is a useful illustration of how the certification framework operates in a healthcare setting where the alleged misconduct affected a large group of patients in different ways.
The case is a BC decision, but the certification framework it applies is broadly similar in Ontario, and the substantive principles (vicarious liability, punitive damages, the limits of common-issue certification where harm differs across class members) translate directly. Hospitals operate in every Canadian common law jurisdiction, and the question of when a hospital is liable for the conduct of someone they allowed to provide care is jurisdictionally portable.
The factual frame
Brigitte Cleroux worked at BC Women’s Hospital and Health Centre, a facility operated by the Provincial Health Services Authority (PHSA), from June 1, 2020 to June 30, 2021. The PHSA estimated that during this period, Ms. Cleroux was involved directly or indirectly in the provision of nursing care to approximately 1,150 patients who attended for gynecological surgical procedures.
The allegation underlying the proceeding is that Ms. Cleroux was not in fact a licensed or qualified nurse. Her hiring is alleged to have occurred in circumstances where the PHSA knew or should have known that her credentials were falsified. None of these allegations were tested at trial in the certification decision. The court’s task at the certification stage is procedural, not substantive: it asks whether the proceeding can sensibly continue as a class action, not whether the underlying claims will succeed.
The plaintiff Miranda Massie, one of the patients who came under Ms. Cleroux’s care during this period, applied to certify the action as a class proceeding. The proposed class is defined as patients of BCWH who received nursing care directly or indirectly from Ms. Cleroux during the relevant period.
The certification framework
Class certification in BC is governed by the Class Proceedings Act. The certification test has four elements:
- The pleadings disclose a cause of action
- There is an identifiable class of two or more persons
- The claims of class members raise common issues
- A class proceeding would be the preferable procedure for resolving the common issues
The first element is decided on the pleadings (taking the alleged facts as proven). The second through fourth are decided on the certification record, which can include affidavit evidence about the nature of the proposed class and the issues. None of these elements requires the court to decide the merits.
The Ontario Class Proceedings Act, 1992 uses an essentially similar framework, with one criterion phrased slightly differently: in Ontario, the question is whether the proposed representative plaintiff fairly and adequately represents the class. The substantive analysis tracks the BC approach.
What was certified
The court in Massie certified three causes of action as common issues.
Wilful violation of privacy. Under BC’s Privacy Act, the wilful violation of another’s privacy without claim of right is an actionable tort. The court found that all proposed class members were owed privacy as patients in a private medical setting (gynecological surgery), and the privacy interest did not depend on the specifics of any individual interaction with Ms. Cleroux. The factual question of whether the privacy interest was violated is common across the class.
The Ontario doctrinal equivalent is the common law tort of intrusion upon seclusion, recognized by the Court of Appeal in Jones v Tsige, 2012 ONCA 32. The elements differ slightly between the BC statutory tort and the Ontario common law tort, but the general framework (privacy as an interest protected by the law, with breach actionable independent of consequential damages) translates.
Vicarious liability. The court found that the elements of vicarious liability for the privacy claim were sufficiently common to certify. The reasoning rested on two propositions: first, that Ms. Cleroux’s conduct was sufficiently related to conduct authorized by the PHSA (she was working in the role the PHSA had hired her into, even though her credentials were allegedly false); and second, that the PHSA had created or enhanced the risk to the class members by allowing Ms. Cleroux to treat vulnerable patients and failing to respond appropriately.
The vicarious liability analysis follows the framework set out by the Supreme Court of Canada in Bazley v Curry, [1999] 2 SCR 534. The framework asks whether the employer’s enterprise materially increased the risk that the wrong would occur. In a hospital setting where unverified or improperly verified credentials lead to an unqualified person providing intimate medical care, the framework has obvious application.
Punitive damages. The court certified punitive damages as a common issue on the basis that the facts pleaded and the evidence supported the assertion that the PHSA’s conduct was a “marked departure from ordinary standards of decent behaviour.” That phrase is the standard for punitive damages from Whiten v Pilot Insurance Co., 2002 SCC 18, which applies in all Canadian common law jurisdictions including Ontario. The certification of punitive damages as a common issue means the question of whether punitive damages are warranted will be decided once for the class, even if the quantum (if any) is determined separately.
What was not certified
The court declined to certify three other causes of action.
Negligence. The court found that each class member’s interaction with Ms. Cleroux differed materially. Causation and the extent of harm would have to be established on a patient-by-patient basis, depending on the specific nursing tasks performed and the specific consequences for each patient. The court was not persuaded that there was a methodology that could establish negligence claims on a class-wide basis.
Battery. Battery requires proof of unwanted physical contact. The contact between Ms. Cleroux and class members varied considerably: some patients had direct nursing care, others had only indirect exposure through chart access or other involvement. The variability defeated the common-issues requirement for the battery claim.
Damages and aggregate damages. The court declined to certify damages or aggregate damages as common issues. The reasoning followed the negligence analysis: the harm experienced by each proposed class member differed materially, and there was no plausible methodology presented that would allow class-wide assessment of damages. Patients seeking compensation for individual harms (psychological injury, distress related to specific procedures) would have to pursue those claims individually.
The practical consequence is that the certified class proceeding will determine whether the PHSA is liable for wilful violation of privacy across the class, whether the PHSA is vicariously liable for Ms. Cleroux’s conduct, and whether punitive damages are warranted. Class members seeking compensation for individual physical or psychological harms must file individual lawsuits within the applicable limitations period.
The preferable procedure analysis
The court held that a class action is the preferable procedure for resolving the certified common issues. Two reasons supported this conclusion.
First, the court has substantial powers to manage residual issues that arise in class proceedings, including individual issues trials, sub-classes, and procedural innovations to streamline the disposition of class-wide litigation. The fact that some issues will require individualized assessment does not defeat certification where the court can constrain and control that process.
Second, only a small percentage of proposed class members had pursued individual claims at the time of the certification application. The court considered that the majority of class members should not be deprived of the benefits of a class proceeding because some had chosen to pursue their own claims. To do so would be contrary to the access-to-justice rationale that underlies class actions.
The doctrinal context
Massie is part of a body of Canadian class action jurisprudence in healthcare settings. It sits alongside other class certification decisions where courts have parsed which causes of action are amenable to class-wide treatment and which are not. The general pattern that emerges:
- Privacy claims (intrusion upon seclusion in Ontario, wilful violation of privacy under statute in BC) are often well suited to class certification, because the privacy interest is uniform across patients in a similar setting
- Vicarious liability claims are commonly certifiable where the conduct in question was facilitated by the employer’s enterprise structure
- Punitive damages can be certified where the underlying conduct is alleged to meet the “marked departure” standard
- Negligence and battery claims are typically not certifiable as common issues where the alleged harm differs across class members, because causation and damages assessment require individualized analysis
This pattern was illustrated in Levac v James, an Ontario class action arising from an infectious disease outbreak in a pain management clinic. There, the plaintiffs faced the related challenge of establishing causation on a class-wide basis where the individual patients had different exposure histories. The Ontario courts addressed it through a statistical/probabilistic causation framework. Massie‘s solution is to certify only those issues where causation and harm are uniform across the class, leaving individualized issues to individual proceedings.
Why this case matters
For patients. Massie illustrates how class actions work in healthcare cases. The certification decision is not a finding of liability; it authorizes the proceeding to continue, on the certified issues, as a single action. Patients who fall within a proposed class need to understand that certification typically does not resolve their individual claims for compensation. Where damages are not certified as a common issue, individual patients may need to pursue separate proceedings to recover for their specific harms, subject to the applicable limitations periods. In the Massie case, the deadline for filing individual claims for negligence, battery, or personal injury was generally tied to when the affected patients received notice from the PHSA in late 2021, with a two-year limitation period running from that date.
For hospitals and health authorities. The case is a reminder that the institutions responsible for hiring and credentialing healthcare workers carry vicarious liability exposure where credentials prove to be false and patients are exposed to unqualified care. The risk-creation analysis from Bazley has obvious application: an institution that fails to verify credentials adequately materially increases the risk that the kinds of harms that flow from unqualified care will occur. The cost of robust credentialing is small compared to the cost of class-wide vicarious liability litigation.
For lawyers screening class actions. Massie is a useful precedent on the limits of common-issues certification. Where individual harm and causation differ materially across the proposed class, those issues will not be certified, even when the underlying course of conduct is common. The strategic implication is that the design of the proposed common issues matters. Issues that focus on the institution’s conduct (the hiring decision, the credentialing process, the response when concerns were raised) are more likely to be certified than issues that depend on the specific impact on individual patients.
For more on how malpractice claims are structured generally, see Suing for Medical Malpractice in Ontario: What You Need to Know. For another class-action case-comment, see Levac v James: Statistical Causation in an Infection Outbreak Class Action. For the broader landscape of complaints and reviews available to Ontario patients, see A Patient’s Guide to Making Complaints About Health Care in Ontario.
Decision Date: July 25, 2023
Jurisdiction: Supreme Court of British Columbia
Citation: Massie v Provincial Health Services Authority, 2023 BCSC 1275 (CanLII)
