Dn a judgment rendered on Monday, the Superior Court authorized the request to modify the group of the class action filed by the attorneys of Solange Allen, whose spouse died on August 19, 2012 from legionellosis.
The prosecutors of Ménard Martin Avocats got their hands last February on the file of the epidemiological investigation of the regional director of public health of the Capitale-Nationale, which established at approximately 180 the number of victims of legionellosis. In the meantime, they have received calls from people claiming to have had the disease. These people sent them their medical files. By comparing the two lists, plaintiff’s attorneys found a discrepancy.
These people would have contracted the bacteria without there being a declaration made to the Regional Director of Public Health under the MADO system (notifiable diseases). Either they were diagnosed with Legionellosis following a positive urine antigen test without their doctor notifying public health, or they showed symptoms of the disease without having a positive urine test.
According to expert Jean Joly, whose report was filed in the Court’s file, the urine test would only be valid in 80% of cases of people with legionellosis. In other words, 20% would be sick without the urine test confirming it.
More than 200 victims
In total, some 37 people would have contracted legionellosis in Quebec in 2012 without their case being transmitted to public health, according to lawyer Jean-Pierre Ménard. These victims, who are in addition to the 180 others, are thought to reside in large part in Quebec. An Australian visiting the capital that summer is also said to have contracted the disease.
Public health authorities, the Attorney General of Quebec and the CSQ, owner of the cooling tower at the origin of the outbreak, opposed the request of Solange Allen’s attorneys, arguing in particular that the recourse of people not covered by the initial authorization to bring a class action was prescribed.
The defendants also pleaded that the only way for a possible new member to join the group is to have had a positive urine test and for their case to have been referred to public health.
In its judgment, the Superior Court reiterates that the Civil Code contains a provision which allows a person not to be opposed to the prescription of his recourse: the impossibility of acting. She stresses that people called to be part of the group of legionellosis victims cannot know whether or not a declaration has been produced about them, this document being sent only to public health.
“Should the potential new members of the group, victims of Legionellosis, be penalized because their doctor did not complete a form?” [de déclaration d’une MADO]? Can we penalize a victim who does not know that he is no longer part of the group? To ask the question is to answer it, ”writes Judge Clément Samson.
Judge Samson considers, moreover, that at the stage of modifying the group, it is “not useful” to discuss the criteria enabling a person to be affirmed that a person is suffering from Legionella, these questions having to be debated on the merits.