The lawsuit, now seeking $500 million, is awaiting certification. Photo: Georgiana Ghitau/The Fulcrum
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pending class action lawsuit holds that U of O must bear responsibility for wrongdoings of former physician Vincent Nadon

Content warning: sexual assault

The proposed class proceeding launched against the University of Ottawa by the victims of former University of Ottawa Health Services (UOHS) doctor Vincent Nadon has undergone several developments in recent weeks. 

The proposed class proceeding hit a roadblock when the U of O refused to agree to give notice of certification on their webpage. Procedure dictates that class members who do not wish to be involved with a class proceeding be offered the option to opt-out. 

Sean Brown is one of the lawyers for the plaintiffs and a senior partner at Flaherty McCarthy LLP. Brown said in an interview with the Fulcrum that it is not uncommon in cases like these — where a preexisting relationship exists that might reasonably lead potential class members to the defendant’s webpage — for the defendant to give notice so as to provide any such class members with that opportunity.

Brown added that the counsel for the plaintiffs agreed to take full financial responsibility for a notice program to be disseminated by regional, provincial, and national newsprint and media at an expected cost between $50,000 and $75,000. Despite this, the Ottawa defendants — the U of O, UOHS, and the management company — maintain their position regarding notice of certification. 

“All we asked them to do was to post the court order, or the approved notice from the court, on their websites. And they both, University of Ottawa and [the former] University of Ottawa Health Services, absolutely refuse to do it. It really shouldn’t be at any cost to them, certainly, they didn’t raise the issue of costs. But they do take the position that they bear no responsibility to give notice of certification and the right to opt out to class members,” said Brown.

Not only have the defendants refused to give notice of the proposed class proceeding, but they withheld their consent to certification of the class action until the plaintiffs agreed that they did not have to post the notice on their website.

“I think it’s certainly a disappointing position to take, an unnecessary position to take. And we’re forced to agree to the demand if we want this matter to proceed expeditiously,” said Brown.

Ultimately, Brown said that the plaintiff’s counsel have “agreed, with great hesitation,” to withdraw that aspect of the proposed notice plan in order to secure the University’s consent. 

Having made these concessions, the certification motion will now proceed on consent.

Prayer for relief has been raised to $500 million 

In addition, a disagreement between the Ottawa defendants and the plaintiffs’ counsel regarding some of the common issues outlined in the initial plaintiff’s motion has ultimately led the plaintiffs to increase their prayer for relief to $500 million. 

Brown explained in an email to the Fulcrum that “common issues are the questions that must be answered in the Common Issues trial, that proceeds on behalf of all class members.” An example includes the question of whether the University is to assume responsibility via vicarious liability for the wrongs committed by Nadon. Such common issues accompany each cause of action, which include negligence, invasion of privacy, and breach of trust, among others.

The Ottawa defendants — the U of O, UOHS, and the numbered company that managed the clinic — opposed some of the common issues on the basis the statement of claim did not specifically plead certain things against them. A motion to amend the statement of claim has since been submitted, and the plaintiff’s counsel has taken this opportunity to plea for more damages. 

Brown explained the nature of the Ottawa defendants’ opposition to the common issues in an interview. For example, Brown said that the Ottawa defendants argued that the plaintiffs’ plea of breach of statute did not include breach of the Personal Health Information Protection Act (PHIPA), and required the plaintiff’s motion to make amendments specifying a breach of PHIPA. Several other such amendments were requested.

Certification of the pending class action lawsuit is now waiting for confirmation from Hon. Justice Calum MacLeod, who will sign the order if he agrees that certification is appropriate.

Both the University of Ottawa and ByWard Family Health Team — the former UOHS — declined to comment on this story, citing this matter presently being before the courts as their reason. 

This is a developing story.