The New Brunswick Court of Appeal heard the case of forced deliveries at the Moncton Hospital on Thursday in Fredericton. Lawyers for the plaintiffs tried to convince the judges to save their class action.
In November 2023, King’s Bench Chief Justice Tracey K. DeWare dismissed a class action certification application on behalf of women who allegedly received hormones without their consent during childbirth.
The application targeted Horizon Health Network and former nurse Nicole Ruest. It was filed by a woman who alleged she underwent an emergency C-section in March 2019 after being given oxytocin without her knowledge.
In her decision, Judge DeWare ruled that a class action was not the way to resolve the case. She determined that the plaintiffs should instead pursue civil suits individually.
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Three judges from the New Brunswick Court of Appeal considered the case Thursday in Fredericton. (File photo)
Photo: Radio-Canada / Michel Corriveau
On Thursday, a three-judge panel of the province’s highest court heard an appeal of that decision.
They first spoke with the plaintiffs’ lawyer, John McKiggan, who tried to convince them that Judge DeWare made legal errors and that the Court of Appeal should approve the request for authorization of a class action.
McKiggan said her team has been contacted by more than 200 women who believe they could be part of the action.
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L’avocat John McKiggan
Photo : Radio-Canada / CBC / (Jon Collicott
He said telling them that they must file civil lawsuits if they want financial compensation, instead of settling the case in one fell swoop, is completely insane.
It’s… I was going to use a stronger word… it’s not practical. It makes no sense. The cost of this enormous number of lawsuits, to the members of the class and to the courts, would make absolutely no sense. It would be completely contrary to the principle of judicial efficiency, he said.
Class action may make sense, judge says
Comments that seemed to score points with Judge Ernest Drapeau, who was by far the magistrate who asked the most questions during the hearing.
The magistrate thought out loud and pushed the lawyers into a corner, as he usually does.
He asked what would happen if 100 women, half of those who contacted John McKiggan’s office, filed civil suits.
This would result in the filing of 100 defence briefs by the Horizon Health Network and 100 defence briefs by Nicole Ruest, he noted.
Don’t you think that the judge of the Court of King’s Bench, or someone on the hospital board, would say, “Can’t you combine lawsuits so we don’t have to spend a fortune?” And in the end, isn’t that why a class action, while imperfect, might make sense? he asked.
Lawyers for Horizon Health Network and Nicole Ruest presented several arguments to convince the Court of Appeal that Judge DeWare made the right decision in rejecting the application for authorization of a class action.
They said, among other things, that the definition of class action proposed by the plaintiffs’ lawyer is too vague and would open the door to claims from people who did not even give birth at the Moncton Hospital.
They further argued that filing individual lawsuits is imperfect, but it is the best way to handle claims, given the complexity of the cases and the fact that not all plaintiffs have had identical experiences.
The judges said they would make their decision later.
