Court File No. ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JEAN-FRANCOIS FARJON and REBECCA SOROKA -and- PLAINTIFFS DR. CHRISTIANE FARAZLI, and C. FARAZLI MEDICINE PROFESSIONAL CORPORATION DEFENDANTS STATEMENT OF CLAIM Proceedings under the Class Proceedings Act, 1992 TO THE DEFENDANT: A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the Plaintiffs. The claim made against you is set out in the following pages. IF YOU WISH TO DEFEND THIS PROCEEDING, you or an Ontario lawyer acting for you must prepare a Statement of Defence in Form 18A prescribed by the Rules of Civil Procedure, serve it on the Plaintiffs lawyer or, where the Plaintiffs do not have a lawyer, serve it on the Plaintiffs and file it with proof of service, in the court office, WITHIN TWENTY DAYS after this Statement of Claim is served on you, if you are served in Ontario.
If you are served in another province or territory in Canada or in the United States of America, the period for serving and filing your Statement of Defence is forty days. If you are served outside Canada and the United States of America, the period is sixty days. Instead of serving and filing a Statement of Defence, you may serve and file a Notice of Intent to Defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle you to ten more days within which to serve and file your Statement of Defence. IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGEMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE. Date: November 3, 2011 Issued by: Registrar Address of court office: 161 Elgin Street Ottawa, Ontario K2P 2K1 TO: DR. CHRISTIANE FARAZLI Suite 606, 1081 Carling Avenue Ottawa, Ontario K1Y 4G2 C. FARAZLI MEDICINE PROFESSIONAL CORPORATION Suite 606, 1081 Carling Avenue Ottawa, Ontario K1Y 4G2
CLAIM 1. The Plaintiffs, Jean-Francois Farjon ( Jean-Francois ) and Rebecca Soroka ( Rebecca ) as representatives of the Class of persons, have suffered injury and damages as a result of the Defendants acts, omissions, wrongdoings, and breaches of legal duties and obligations, included but not limited to, negligence and failure to fulfill their statutory and common law duties and obligations to the Plaintiffs and the Class members. WHEREFORE THE PLAINTIFFS ON BEHALF OF ALL CLASS MEMBERS CLAIM FOR THE FOLLOWING RELIEF, ON A JOINT AND SEVERAL BASIS, AGAINST THE DEFENDANTS: 1. An Order to certify this proceeding as a Class proceeding and an order appointing Representative Plaintiff(s) of the Class, as described below; 2. General damages for the Class in the amount of $10,000,000.00 or such other amount as this Honourable Court deems fit; 3. Special damages for the Class in the amount of $10,000,000.00 or such other amount as this Honourable Court deems fit; 4. General damages for negligence; 5. Damages in the amount of monies paid or to be paid for testing of members of the Class to be aggregated; 6. Aggravated and punitive damages; - 1 -
7. Pre-judgment interest on the foregoing sums in the amount of 2% per month, compounded monthly, or alternatively, pursuant to the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended; 8. Post-judgment interest on the foregoing sums in the amount of 2% per month, compounded monthly, or alternatively, pursuant to the Courts of Justice Act, R.S.O. 1990, c. C-43, as amended; 9. Distribution of damage and interest to members of the Class on an aggregated basis as this Honourable Court may direct. 10. Costs of this action, on a substantial indemnity or solicitor and client basis; and, 11. Such further and other relief as counsel may advise and this Honourable Court may allow. THE PLAINTIFFS 2. The Plaintiff, Jean-Francois Farjon ( Jean-Francois ), is a resident of Ottawa, Ontario and was a patient of Dr. Farazli. 3. The Plaintiff, Rebecca Soroka ( Rebecca ), is a resident of Ottawa, Ontario and was a patient of Dr. Farazli. THE DEFENDANTS 4. The Defendant, Dr. Christiane Farazli ( Dr. Farazli ), is a physician licensed to practice medicine in the Province of Ontario. - 2 -
5. The Defendant, C. Farazli Medicine Professional Corporation ( Corporation ), is an Ontario corporation whose sole shareholder and director is Dr. Farazli. The Corporation is the alter ego of Dr. Christiane Farazli and Dr. Farazli practices medicine under the Corporation s name. PARTICULARS OF CLAIM Jean-Francois 6. Jean-Francois is an Ottawa engineer who was referred to Dr. Farazli by his family physician for a colonoscopy. 7. Although Jean-Francois has had several colonoscopies performed in the past, the experience with Dr. Farazli was by far the most painful. 8. During the colonoscopy Jean-Francois repeatedly demanded that Dr. Farazli stop the procedure. Dr. Farazli repeatedly refused and rudely told Jean-Francois to be quiet because he would scare the other patients. 9. Although Jean-Francois requires colonoscopies to be performed approximately every five years because of a medical condition, he is afraid to have another needed colonoscopy performed because of his experience with Dr. Farazli. th 10. On or around October 18, 2011 Jean-Francois received a letter from Ottawa Public Health informing him that he may have been exposed to a communicable illness as a result of Dr. Farazli s failure to always follow the proper procedures for cleaning endoscopes. - 3 -
11. Since that time Jean-Francois has been concerned about the potential health impact of his exposure at the hands of Dr. Farazli and believes that Dr. Farazli s lack of care for the pain that he endured during the procedure is consistent with the lack of care demonstrated in ensuring that the endoscope was properly cleaned. Rebecca 12. Rebecca is a 33 year old Ottawa resident who suffers from extreme swelling of the abdominal area and was referred to Dr. Farazli by her family physician in 2006. 13. Between 2006 and 2010 Rebecca had an endoscopy and 2 colonoscopies performed by Dr. Farazli. 14. During an endoscopy in 2008 Dr. Farazli told Rebecca that she was being a baby when she cried out during the procedure. 15. Before the colonoscopy performed in 2010 the nurse began wiping the black scope tube with a white cloth that looked similar to a baby wipe. Rebecca asked the nurse what she was doing to which the nurse replied that she was wiping the scope down to make sure there was no dust on it before the procedure. 16. During the colonoscopy performed in 2010 Dr. Farazli told Rebecca to shut up after she cried out in pain and removed Rebecca s glasses and refused to give them back. - 4 -
Negligence (a) proximity 17. At all material times the Defendants were in a close and proximate relationship with the Plaintiffs and the Class, all of whom were patients. The Class was peculiarly susceptible to the acts and omissions of Dr. Farazli by virtue of the fact that they had given her control over their bodies while Dr. Farazli acted in her capacity as a physician. (b) duty of care 18. Dr. Farazli, and by extension the Corporation under whose name she practiced medicine, owed a duty of care to the Plaintiffs to: (1) take reasonable care in ensuring that the medical equipment, facilities, instruments, and utensils used were sanitary and/or sterilized to the extent required by law, regulations, and practice standards. (2) take reasonable care in ensuring that the medical equipment, facilities, instruments, and utensils used were otherwise suitable for the medical procedures being performed. (c) breach of duty 19. The Defendants breached their duty of care when the medical equipment, facilities, instruments, and utensils used were not properly sterilized and/or were not otherwise suitable for the medical procedures being performed. 20. The Defendants failed to take reasonable care to prevent serious injury to the Class when they did not properly sterilize medical equipment, facilities, instruments, and utensils used in the practice of medicine and, consequently, potentially exposed thousands of Class members to HIV, Hepatitis B, Hepatitis C, and other communicable diseases, risks, and injury. - 5 -
21. Not to restrict the generality of the foregoing, the Defendants, during part of the Class period, breached the statutory and regulatory regime imposed regarding the sterilization of medical equipment, facilities, instruments, and utensils, used in the practice of medicine, and, consequently, potentially exposed thousands of Class members to HIV, Hepatitis B, Hepatitis C, and other communicable diseases or injury. (d) causation 22. As a direct and immediate result of the Defendants acts or omissions the Class suffered: (1) inconvenience, embarrassment, being subjected to further medical testing, lost time, travel costs, worry, mental pain and anguish, anxiety, emotional distress, psychological distress or injury, knowledge that they could have been exposed to a communicable disease, injury, loss; and/or, (2) injury resulting from being put at risk of contraction of a communicable disease such as HIV, Hepatitis B, Hepatitis C, or other illness, conditions, or injury. 23. Members of the Class have suffered one or both of the aforementioned categories of injuries. 24. But for the Defendants' acts, errors, and omissions the Class would not have experienced the aforementioned injuries. Breach of Fiduciary Duty 25. All of the above constitutes a breach of the fiduciary duties owed by the Defendants to the Plaintiff and the Class. - 6 -
Breach of Charter of Rights and Freedoms and Charter Damages 26. The Class rights and freedoms, as guaranteed by the Canadian Charter of Rights and Freedoms, were breached, especially and more particularly regarding Section 7 thereof, breaching: (i) their right to control their bodies as they choose; (ii) their right to security of the person; (iii) their right not to be subjected to cruel and unusual treatment; (iv) their individual interest in their bodily and psychological integrity and their right to be guarded against unjustifiable and impermissible physical risks and increased risks of health complications and death; (v) their right to receive, in a timely manner, full, frank, and forthright information about activities of the Defendants that have a serious effect on their health and well-being and of all of the health risks; (vi) their right to decide for themselves as to whether to undergo treatment; (vii) their right to personal autonomy in personal decision making; and they apply to this Court to obtain monetary relief including symbolic damages and all other available types of damages and such other remedies as the Court considers appropriate and just in the circumstances. 27. As a result of the breaches of Charter rights set out above, the Plaintiffs and the Class suffered some or all of the injuries set out above, for which the Defendants are liable, jointly and severally. - 7 -
THE CLASS 28. The Plaintiffs are representatives of a Class that includes: All persons who had a test performed by Dr. Farzali to look at their st st gastrointestinal system between April 1, 2002 and June 1, 2011 29. As a result of the aforesaid acts, omissions, wrong doings, and breaches of legal duties and obligations by the Defendants, the Class has sustained substantial injury and damages. General 30. The Plaintiffs plead and rely upon the Class Proceedings Act, S.O. 1992, c. 6. The Place of Trial 31. The Plaintiffs propose that Trial in this action take place in the City of Ottawa, in the Province of Ontario. Date of Issue: MERCHANT LAW GROUP LLP Barristers and Solicitors 65 St. Clair Ave. E, Suite 800 Toronto, Ontario M4T 2Y3 Lawyer in Charge: Nicholas P. Robinson LSUC#: 57961F Telephone: (613) 563-7777 Telephone: (416) 828-7777 Cellular (306) 201-5030 Facsimile: (416) 925-5344 Solicitors for the Plaintiffs Whose address for service is: same as above - 8 -
Court File No.: JEAN-FRANCOIS FARJON et al. v. DR. CHRISTIANE FARAZLI et al. Plaintiffs Defendants ONTARIO SUPERIOR COURT OF JUSTICE Proceeding commenced at Ottawa STATEMENT OF CLAIM MERCHANT LAW GROUP LLP Barristers and Solicitors 65 St. Clair Ave. E, Suite 800 Toronto, Ontario M4T 2Y3 Telephone: (613) 563-7777 Telephone: (416) 828-7777 Cellular(306) 201-5030 Facsimile: (416) 925-5344 Nicholas P. Robinson LSUC# 57961F Solicitors for the Plaintiffs