Wagners Serious Injury Lawyer Blog

Personal injury comes in many forms. Victims of intentional or unintentional wrongs can suffer a range of physical and emotional harms. Where such harms are suffered, the law permits compensation. For example, when a pedestrian is hit by a car while crossing a crosswalk, and is injured, he or she can seek damages from the driver. A victim of a sexual assault, who suffers emotional consequences like depression, is entitled to compensation from his or her attacker.

Entitlement to compensation for some injuries is less obvious. One such example is an invasion of privacy. Victims of privacy breaches often suffer emotional consequences, such as embarrassment, loss of confidence and degradation. A couple of months ago, the Ontario Court of Appeal released a decision that clarified whether such injuries, stemming from a breach of privacy, are compensable under law.

The defendant was a bank employee. Over a four year period she accessed the plaintiff's banking records more than 174 times. The accessed information included not only transaction details, but also address, date of birth, and marital status. No information had been published, distributed, or recorded by the defendant in any way. Other than the defendant being in a relationship with the plaintiff's ex-husband, it was not clear why she was viewing these records. She acted in breach of bank policy.

The plaintiff brought a claim for invasion of privacy and sought general and exemplary damages.

The Ontario Court of Appeal concluded that the plaintiff was entitled to damages for having suffered an invasion of privacy. The Court of Appeal confirmed the existence of a right of action for intrusion upon seclusion, stating:

For over one hundred years, technological change has motivated the legal protection of the individual's right to privacy. In modern times, the pace of technological change has accelerated exponentially. Legal scholars such as Peter Burns have written of "the pressing need to preserve 'privacy' which is being threatened by science and technology to the point of surrender" ... The internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information. As the facts of this case indicate, routinely kept electronic data bases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled, and the nature of our communications by cell phone, e-mail or text message.

The Court described the analysis that must be entered into in assessing the viability of a claim for intrusion upon seclusion:

I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts(2010) formulation which, for the sake of convenience, I repeat here:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

The key features of this cause of action are, first, that the defendant's conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.

Favouring a higher award is the fact that Tsige's actions were deliberate and repeated and arose from a complex web of domestic arrangements likely to provoke strong feelings and animosity. Jones was understandably very upset by the intrusion into her private financial affairs. On the other hand, Jones suffered no public embarrassment or harm to her health, welfare, social, business or financial position and Tsige has apologized for her conduct and made genuine attempts to make amends. On balance, I would place this case at the mid-point of the range I have identified and award damages in the amount of $10,000.

This recent decision is expected to have wide-reaching consequences in civil litigation, particularly in the area of class actions where company decisions can have privacy implications for large populations of people. The case represents the recognition of a common law privacy tort in Canada's largest province and is significant milestone in the development of this area of the common law.

The claims involving the former residents of the Nova Scotia Home for Colored Children are, after 10 years, starting to be noticed by the media.

A series of articles were published in Frank Magazine in early 2011 dealing with the litigation, the allegations and the lengthy time that this litigation has been before the Courts.

Bethany Horne produced a documentary called "The Colored Home" for CBC Radio's Maritime Magazine which aired on November 29, 2011. It was later replayed on the CBC Radio show In the Field on January 17, 2012.

There have also been a number of articles published in the Chronicle Herald during the week of February 13th relating to the abuse which occurred at the NSHCC. Followup articles have also been published.

These articles and documentaries are giving a voice to the victims who were abused while they were residents at the NSHCC.

Now, after many years of struggle in pursuing the individual claims through the court system, a new chapter in the NSHCC litigation is about to unfold.

On Friday, February 17, 2012, the law firm of Wagners filed its Notice of Motion and supporting affidavits to have its proposed class proceeding certified as a class action pursuant to Nova Scotia's Class Proceedings Act. The filing of these documents represents a significant milestone for the victims of abuse at the NSHCC after many years of ongoing litigation in their individual claims. The filing of the certification motion documents is the first step towards bringing closure for these victims of abuse.

One of the individuals who signed an affidavit in support of the certification motion is Jane Earle, former executive director of the NSHCC. Ms. Earle was interviewed for CBC Radio's Mainstreet on February 15, 2012.

The Plaintiffs' Certification motion will be heard in the Nova Scotia Supreme Court at 1815 Upper Water Street, Halifax, before the Honourable Justice Arthur LeBlanc during the week of October 22, 2012.

Two institutions. Both opened in the 1920s. Both funded by the Province. Both with poor conditions and unqualified staff. And both with allegations of serious abuse perpetrated by staff members. But the similarities end there.

When one juxtaposes the situations between the two institutions, the differences in how the allegations have been handled are startling and readily apparent.

In relation to Shelburne, after a few victims came forward, the Province quickly decided to fund an investigation into the abuse. The investigation revealed that residents were abused and the Province quickly agreed to compensate the victims, approximately 5 years after the original complaint was brought with the RCMP.

In relation to the NSHCC, no funds for an investigation were provided, no inquires into the merits of the abuse claims were made and no compensation has ever been provided.

Rather, unlike the Shelburne situation, the sole focal point of the Defendants in the NSHCC claims were to repeatedly apply to the Court to deny the claims on the basis that the victims should have brought their actions sooner. Not to dispute the claims but to use Nova Scotia's antiquated limitations laws to stop the claims. In addition, the abuse victims have had to undergo emotionally painful discovery examinations and answer questions of an invasive nature.

There is another difference between the NSHCC and Shelburne which can be distinguished. The majority of the Shelburne victims were white. The vast majority of the Colored Home victims are black.

The stark contrast between the way that the allegations of abuse at the Nova Scotia Home for Colored Children and Shelburne have been handled lead to serious questions.
Why did the Province fund an investigation for victims in Shelburne but not for the victims of the NSHCC?

Why were people charged in relation to abuse at Shelburne but not in relation to the NSHCC?

What makes the Colored Home abuse victims any different from the Shelburne abuse victims?

Why did the Province agree to compensate Shelburne victims 5 year after the complaint was brought while it continues to deny justice to Colored Home victims almost 10 years after the complaints were brought?

The victims of abuse at the NSHCC believe it is time for the Province to answer these questions.

It is now closing in on 10 years since Wagners commenced litigation against the Nova Scotia Home for Colored Children, the Province of Nova Scotia and various Children's Aid Societies. The Home was established in 1917 and served primarily disadvantaged and unwanted children of African-Canadian descent.

The claims we filed back in 2003 and 2004 were individual lawsuits on behalf of more than 60 former residents of the Home, or NSHCC. From the time that we filed those initial claims up to and continuing today, the Defendants have continued to force our clients to go through obtrusive examinations, submit to providing answers to interrogatories and demands for particulars, motions for summary judgment and other procedures that have only served to delay our efforts to give our clients their day in court.

One must ask themselves why the Defendants are subjecting these victims of abuse to the lengthy and costly litigation process. What makes this case different?

Similar institutional abuse cases, such as Shelburne, were resolved only 4 or 5 years after the first allegations of abuse came to light. A number of victims of the pedophile, Cesar Lalo, have had their cases heard in Court. However the victims of abuse suffered in the NSHCC continue to be embroiled in litigation nearly 10 years after their claims first came to light.

When reviewing the Shelburne situation, which came to light in 1991, it was approximately one year after the first allegations came to the public forefront that the RCMP investigated and, in fact, laid charges against a former staff member. Compare that to the situation involving the NSHCC when, after the initial claims were filed, the Defendants filed documents which required the NSHCC victims to respond to extensive written questions. Even now, after 10 years has transpired since the first NSHCC claims were filed, there has never been an investigation into the abuse allegations, much less a criminal charge being laid. All these allegations, very strong and very powerful allegations of systemic sexual abuse of the most horrific variety is well documented in the court record and no police department, no police agency, no government agency, nobody in the Department of Community Services, no welfare protection people--did anything, or are doing anything to investigate the case. And you have to ask yourself, why?

In 1993, the Shelburne staff member who was charged was found guilty and was convicted of indecent assault and gross indecency. Within 2-3 years of the first allegations of abuse at Shelburne, a pedophile was convicted. Yet in the NSHCC cases, within 2-3 years, the Defendants chose to contest the claims.

In 1995, more former residents of Shelburne started to come forward with allegations of abuse. Immediately, the Province announced that they would investigate these allegations and, if proven, a method would be put in place to provide justice to those who were wronged. However, the NSHCC victims continue to be mired in litigation, with the Defendants' using all the litigation tools to frustrate the fair and final determination of the truth.

Later in 1995 the investigative report dealing with the allegations of abuse at Shelburne was released. This Provincially funded report found approximately 90 allegations of abuse and the blame was placed with the Government for inadequate practices including funding and hiring. Shortly thereafter, the Province commenced discussions with the lawyers for the victims of the abuse at Shelburne to attempt to redress the wrongdoings. All this occurred within 5 years of the first allegations being made. In the NSHCC cases, the claimants were being subjected to intrusive, invasive and lengthy discovery examinations after 5 years. Why did the Province take the allegations of abuse in Shelburne much more seriously and with more compassion than it has done for the victims of abuse at the NSHCC?

In 1996, 5 years after the first Shelburne allegations became public, a compensation package was put in place for the victims. With the NSHCC, the Defendants continue to use the litigation tools to deny access to justice.

After polluting the air, soils and waters of Sydney for decades, despite their best efforts to deny the pollution victims access to the Courts, the Canadian and Nova Scotian Governments will have to face the merits of the class action against them after all. This is important for the pollution victims and vital to the development of environmental class actions in Canadian law.

On Wednesday, July 6, 2011, the Honourable Justice John D. Murphy rendered his oral decision in relation to Wagners' motion to certify the proposed class proceeding concerning the contamination caused by the operation of the Steel Plant and Coke Ovens facilities which were located in Sydney, Nova Scotia.

Wagners, in cooperation with Siskinds LLP who are based in London, Ontario, are pleased to advise that the decision was in favour of certification of the class action. This monumental decision recognizes that the Sydney Tar Ponds class action grants access to justice for those impacted the pollution caused by the operations of the Governments of Canada and Nova Scotia.

Recognizing that there are merit-related issues which many people in Sydney share in common against the defendants, the class action will allow similarly situated individuals to have their cases heard together at one time. Access to justice, judicial economy and behaviour modification are the cornerstones of class proceedings and the decision in this case is indeed a significant victory for the many individuals who have been wronged by the actions of others and who have common issues and causes of action against the defendants.

The class proceeding, originally filed by Wagners Law Firm in March of 2004, has gone through numerous court motions, appeals, examinations, discoveries and other initiatives and refinements over the last 7 years. The action was launched on behalf of a class of people who live or have lived in the neighbourhoods immediately surrounding the site of the Sydney steel plant, former coke ovens operations, and Tar Ponds. Neila Catherine MacQueen, Joseph M. Petitpas, Ann Marie Ross, and Kathleen Iris Crawford - all life-long residents of the Whitney Pier or Ashby areas are the Representative Plaintiffs of the Classes.

The action seeks compensation for property damage, for funds to establish a medical monitoring mechanism to monitor the risks posed by the toxic emissions and compensation for the nuisance caused to the residents. Raymond F. Wagner, of Wagners, and C. Scott Ritchie, Q.C., of Siskinds LLP, are Co-Counsel for the residents of Sydney who have sought justice and redress for so long.

The Representative Plaintiffs and the Class Members will still need to prove their case at the common issues trial. However, the successful certification decision now allows those individuals who have the same or a similar case to be heard together at one time. Procedurally, certification of a proposed class proceeding is a significant factor in facilitating the resolution of the lawsuit. A successful certification will also provide access to justice to those who could not afford to seek justice on their own and it may also serve as a deterrent for future unlawful behaviour, spoiled environments and harsh government actions.

The oral certification decision is quite detailed and written reasons may follow. If you have an interest in learning more about Justice Murphy's decision, which was streamed live over the world wide web from the Law Courts in Halifax, it has been archived as Session #22 on the Nova Scotia Court's website and may be viewed at the following url:

http://www.courts.ns.ca/nssc_webcasting/nssc_video_archives.htm

Hundreds of people across Canada have sustained tendon injury as a result of taking a popular prescription medication called Levaquin.

Levaquin is a prescription antibotic generally prescribed for the treatment of numerous bacterial infections. Many people use Levaquin to help combat ear infections, bronchitis, pneumonia and chlamydia. Levaquin is a fluoroquinolone antibiotic. It is concentration-dependent, so bacteria are killed most efficiently when the right amount of medicine is absorbed into the body.

Levaquin is the most prescribed fluoroquinolone antibiotic in the world. The drug is a product of Johnson and Johnson. It was approved by Health Canada in 1997 for the treatment of bacterial infections in adults.

Since that time, a growing number of injuries have been reported. In fact, over 450 reports of injury have been submitted to Health Canada in association with Levaquin. Many of these complaints relate to tendon ruptures and related injuries. The FDA has received notice of even more complaints. According to the FDA database: at least 262 reported case of tendon ruptures have been reported, 274 cases of other tendon disorders, 259 cases of tendonitis, and 61% of these tendon ruptures were caused by Levaquin.

Although prior epidemiological studies indicated that Levaquin was associated with an increased risk of tendonitis and tendon rupture, the drug manufacturers chose not to adequately warn the public and the consumers of this risk. Ultimately, they were forced to. On July 8, 2008, the FDA ordered the manufacturers to add a Black Box warning to Levaquin. A Black Box warning is the strongest warning available for prescription drugs. These blackbox warnings apply to pills, tables, capsules and injectable formulas. The FDA also required that a guidebook be provided to patients warning about the possible side effects.

A black box warning is a type of warning that appears on the package insert for prescription drugs that may cause serious adverse effects. It is named for the black border that usually surrounds the text of the warning. A black box warning will typically indicate that medical studies reveal that the drug carries a significant risk of serious or even life-threatening adverse effects.

A black box warning is the most severe and urgent warning possible. Through its mandatory black box warning, the FDA declared that the evidence suggested that use of Levaquin could lead to tendon rupture and other similar injuries. The FDA also claimed that these types of injuries could lead to extensive surgery to repair.

This type of warning was necessary because the manufacturers and distributors of Levaquin had previously decided to "hide" any caution within the small print of an exceedingly long Levaquin label. Compared to the severity and probability of the injuries, this was felt to be an inadequate warning to both doctors and patients.

Patients and their doctors must be able to rely on drug manufacturers to provide fair and adequate warnings on any safety issues associated with the use of the drug. It is only when all risks are sufficiently disclosed that a patient can make a proper determination of whether to take the drug.

In the pharmaceutical business, sometimes full disclosure will take a back seat to the pursuit of higher profits. When this happens, the patients and consumers suffer. Wagners Law Firm has commenced a class action lawsuit against the manufacturers and distributors of Levaquin. The class action seeks to include all Canadians who have been harmed by the drug and the defendants' choice to provide inadequate warnings in the face of known risks.

The purpose of the class action is two-fold: provide an efficient means of providing justice for those wronged by the wrong-doings of the pharmaceutical companies and promote behaviour modification by holding these companies accountable.

Consumer products are goods companies place into the marketplace for sale and consumption. The primary goal of the market is profits. Usually product safety objectives and responsible advertising work in conjunction with profit maximizing. However, sometimes they do not.

Occasionally, companies will cut-corners or provide the public with misleading product or safety information. This can have an adverse effect on an individual's heath. Injuries stemming from product defects are becoming increasingly more common. Some speculate that this is due to the modern marketplace, where there is an increased consumer demand and pressures on companies for speedier innovation to the market.

Fortunately there is good news coming. Next week, on June 20, 2011, the Canada Consumer Product Safety Act will be coming into force. The Act will be of great benefit to the public and will undoubtedly provide Canadian consumers with increased product protection.

The Act imposed certain responsibilities on manufacturers, packagers, distributors and advertisers. The obligations are in force in every province in Canada, including Nova Scotia, New Brunswick and P.E.I. The obligations seek to protect the public from injury and loss.

The Act applies to merchandise items, like children's toys, household/building products, sporting goods (hockey helmets, fishing rods, etc) and miscellaneous equipment (car booster seats, textiles, etc.). The legislation does not apply to cars/trucks, food, drugs or natural health products. These consumer products are already covered by other Canadian legislation.

The new legislation is intended to address dangerous products by placing responsibilities on companies and empowering officials to recall products that are a "danger to human health or safety". The Act describes that as meaning:

"any unreasonable hazard - existing or potential - that is posed by a consumer product during or as a result of its normal or foreseeable use and that may reasonably be expected to cause the death of an individual exposed to it or have an adverse effect on that individual's health - including an injury -whether or not the death or adverse effect occurs immediately after the exposure to the hazard, and includes any exposure to a consumer product that may reasonably be expected to have a chronic adverse effect on human health"

The Act requires that companies report to Health Canada of any product defects or product safety issues that can cause death or injury to a consumer. This "early warning" provision will enable Health Canada to independently investigate and assess potential defects that could reasonably be expected to result in death or harmful injury. This obligation also applies to inadequate product labeling or instructions that could lead to the same results.

With the implementation of the Act, there will now be a general statutory prohibition of manufacturing, selling or advertising any consumer products that could pose an unreasonable danger to the health and safety of consumers in Nova Scotia, New Brunswick and PEI, along with all other Canadians.

The Act prohibits the advertisement or labelling of product information that could pose a danger to the health and safety of Canadians.

A further key component of the Act requires a manufacturer, distributor and advertiser to maintain accurate records and paperwork so that unsafe products can be traced back to their source and ultimately liability can be established.

When requested to do so, companies must provide evidence (via testing or studies) of their compliance with the Act. In short, they must establish that their products are reasonably safe and that their consumers do not risk injury through purchase. One of the major effects of the Act is that it authorizes the Canadian Government to affective action to issue recalls when required. Surprisingly, Health Canada didn't already have the power to recall unsafe products. The government has had to rely on voluntary recalls by responsible companies and not all companies are responsible.

It remains to be seen how much of a role the new legislation will play in lawsuits when a victim is injured by a product. Where a company chooses to place a defect product on the market in a manner which contravenes the legislation, it is forseeable that the Act will afford injured victims greater access to justice by way of class actions. Ultimately however, the lawyers at Wagners see this as one of the most important pieces of legislation to come into effect in recent years as it is hoped that manufacturers, advertisers and distributors of consumer products will take note of the legislative changes and that less injuries will result from defective products.

Wagners Law Firm has recently commenced a class action law suit against GlaxoSmithKline, the makers of Avandia, a widely used diabetes medication. GlaxoSmithKline has chosen profits over the health and well-being of the drug's consumer. It has disregarded research linking the drug to heart attacks and has failed too appropriately warn Canadians of this risk. Wagners has commenced a national-level class action, representing the interests of all Canadians who have consumed Avandia. Given the recent research set out below, Wagners is recommending to all Canadian consumers of the drug to see their physician about the efficacy of continuing with the use of Avandia.

The background to the class action is as follows:

Diabetes is one of the most common diseases suffered by Canadians. Roughly 2 million Canadians and 200 million people worldwide are afflicted. Type 2 diabetes is the most common form. This form of diabetes occurs when the body does not make enough insulin (a hormone needed to convert sugar and other food into energy) or cannot effectively use what it manages to produce.

GlaxoSmithKline is a company that develops, designs, manufactures, distributes, and markets pharmaceuticals. In 2000, they placed a new diabetes drug called Avandia on the Canadian market.

In 1999, Dr. John B. Buse (the president of the American Diabetes Association), a diabetes expert and Head of Endocrinology at the University of North Carolina, was involved as an investigator in an Avandia study. Following his investigational efforts, he gave a number of speeches at scientific meetings where he opined that the drug may carry cardiovascular risks. Rather than address these serious concerns with more research or proper labeling, GlaxoSmithKline focused its efforts of silencing Dr. Buse. They threatened him with a $4 million dollar law suit. The United States Senate Committee on Finance found the allegations of intimidation and the attempts to silence Dr. Buse to be true. Given that the drug was successfully placed on the Canadian market in 2000, the efforts to silence critics apparently worked.

GlaxoSmithKline made $2.2 billion in 2006 in Avandia sales in the U.S. alone. Suffice it to say, placing this drug on the Canadian market proved very profitable for the company. After complaints of heart attacks began to roll in, between 2005 and 2006, GlaxoSmithKline performed an overview analysis of multiple Avandia trials. The results of the study showed that patients taking Avandia had a 31% higher risk of adverse cardiovascular events such as heart attack due to obstruction of blood flow.

On May 21, 2007, Dr. Steven E. Nissen, a prominent cardiologist associated with the Cleveland Clinic, published a study in the New England Journal of Medicine. It revealed a 43% higher risk of heart attack for those taking Avandia compared to people taking other diabetes drugs or no diabetes medication. Following this, the U.S. Food and Drug Administration, for its part, has slapped a black box on Avandia's label, the most severe warning the agency can issue. No similar warning was issued in Canada.

By at least 2002, there were serious and substantial reports provided to GlaxoSmithKline of Avandia-related heart failure. Since then, many studies have shown the link between the drug and heart attacks. Buoyed by substantial profits, GlaxoSmithKline chose to provide grossly inadequate warnings to the drug's consumers.

The results of a six year long study, headed by Dr. David Juurlink from Toronto, were published on August 20, 2009 in the British Journal of Medicine. It showed that patients taking Avandia have higher risk of heart failure and death than those taking Actos. The Canadian scientists concluded that "continued use of [Avandia] may not be justified."

In spite of the known risks, GlaxoSmithKline has carried on business as usual. Seeing the wrong and injustice in this, Wagners Law Firm commenced an Avandia class action law suit against the pharmaceutical company on August 18, 2009. GlaxoSmithKline's behaviour has been profit-driven, at the expense of the consumer. In hopes to changing this behaviour, Wagners is representing the interests of all Canadians who have wrongly been affected by the drug and who deserve compensation.