



COURT OF APPEAL FOR ONTARIO

CITATION: Florence v. Benzaquen, 2021 ONCA
    523

DATE: 20210722

DOCKET: C68305

Fairburn A.C.J.O., MacPherson
    and Gillese JJ.A.

BETWEEN

Jared Florence, Dana Florence,
Brody
    Florence, Cole Florence and Taylor Florence, by their Litigation Guardian, Dana
    Florence

Plaintiffs (
Appellants
)

and

Dr. Susan Benzaquen
and Dr. Jon Fenton Roy Barrett

Defendants (
Respondent
)

Duncan Embury and Daniela M. Pacheco, for the
    appellants

J. Thomas Curry, Brendan F. Morrison and Sean M.
    Blakeley, for the respondent

Heard by video conference: February 23, 2021

On appeal from the order of Justice Darla
    A. Wilson of the Superior Court of Justice, dated April 14, 2020, with reasons
    reported at 2020 ONSC 1534.

Gillese J.A.:

[1]

Is it settled law, in Ontario, that a physician does
    not owe a duty of care to a future child for alleged negligence that occurred pre-conception?
    The answer to that question is determinative of this appeal.

I.

OVERVIEW

[2]

Dana Florence began taking Serophene, a
    fertility drug, in early July 2007. She was 25 years old and had been
    attempting to conceive for only a few weeks. By the end of July, Ms. Florence was
    pregnant. On January 1, 2008, at 26 weeks gestation, she gave birth to triplets:
    Brody, Cole, and Taylor (the 
Appellants
). As a result of
    having been born prematurely, the Appellants have serious disabilities.

[3]

In 2011, Ms. Florence and her husband, Jared
    Florence, together with the Appellants
[1]
(collectively, the 
Plaintiffs
) commenced this action in
    which they claim against Dr. Benzaquen (the 
Respondent
) in
    negligence (the 
Action
).
[2]
The Respondent was Ms. Florences gynecologist from 2004-7 and had prescribed
    the Serophene.

[4]

In the Action, the Plaintiffs claim that Ms.
    Florence was not given all the information necessary to make an informed
    decision about the use of Serophene. Specifically, they allege that she was not
    advised of the significant risk of conceiving multiple fetuses, the associated risks
    which include premature birth of the babies, and the resulting potential for
    significant neurological and developmental injuries to them. They further
    allege that the Respondents prescription of Serophene was contraindicated and
    failed to take into account Ms. Florences age, the very short time that
    she and her husband had been trying to conceive, and other clinical indicators
    which suggested that the use of Serophene was unreasonable in the circumstances.
    They plead that if Ms. Florence had been aware of the significant risks
    associated with multiple births, she would not have taken Serophene.

[5]

In the Action, the Appellants assert that they
    brought it in their own right. Below and on appeal, the Appellants argue that
    their case is not predicated on the issue of their mothers informed consent.
    Rather, they assert that the Respondent owed a concurrent duty of care to their
    mother and to them to not prescribe to their mother a contraindicated and
    potentially dangerous medication (Serophene) that the Respondent knew, or ought
    to have known, could cause harm not only to Ms. Florence but also to them.

[6]

In her statement of defence, the Respondent denies
    the allegations, maintaining that a proper history was obtained, informed
    consent was given, and prescribing Serophene was appropriate.

[7]

The Respondent brought a motion pursuant to r.
    21.01(1)(b) of the
Rules of Civil Procedure
,
R.R.O. 1990, Reg.
    194, to strike the Appellants claims before trial (the 
Motion
).

[8]

In her reasons (the 
Reasons
),
    the motion judge concluded that the Appellants claims are not recognized at
    law and, thus, they have no viable cause of action. Accordingly, by order dated
    April 14, 2020, she granted the Motion and struck the Appellants claims.

[9]

The Appellants overarching position on appeal is
    that their case is factually different from those decided to date in Ontario
    and the novel duty of care they assert has wide implications of public
    importance. They argue that they should be afforded the opportunity to present
    a full factual and evidentiary record at trial before the court decides whether
    their claims should be recognized at law. They say only a trial will enable the
    court to conduct a comprehensive
Anns

analysis to determine
    whether a duty of care was owed in the specific circumstances of this case, and
    that a full record is necessary for the court to consider the prolific
    prescription of fertility drugs, and the serious consequences borne by the
    public healthcare system and taxpayers as a result. They contend that, in any
    event, the motion judge erred in her limited-form
Anns

analysis
    and that had she performed it correctly, she would have determined that their
    claims should be decided at trial. The Appellants refer to the motion judges
    analysis as a limited-form
Anns

analysis to distinguish it
    from the full analysis that would be possible if the issue were decided at
    trial.
[3]

[10]

The Respondents overarching position on appeal
    is that it is settled law, in Ontario, that a physician does not owe a duty of
    care to a future child for alleged negligence that occurred pre-conception. In
    any event, however, the Respondent submits that the motion judge correctly applied
    binding precedent in striking the Appellants claims.

[11]

In my view, the motion judge correctly decided
    the Motion. For the reasons that follow, I would dismiss the appeal.

II.

THE MOTION JUDGES REASONS

A.

Rule 21 and timing of the Motion

[12]

The motion judge began by stating the relevant
    parts of r. 21 and the principles that apply on such motions. Rule 21 enables a
    party to move for the determination of a question of law raised by a pleading,
    where that determination may dispose of all or part of the action or
    substantially shorten the trial, or to strike out a pleading on the ground that
    it discloses no reasonable cause of action. On r. 21 motions:

a)

the judge must take as true the facts as pleaded;

b)

the moving party must prove  assuming the facts pleaded are true
    and proven  that it is plain and obvious there is no reasonable cause of
    action; and

c)

the threshold for success is high: the claim as
    pleaded must have no possibility of success.

[13]

Quoting from
R. v. Imperial Tobacco Canada
    Ltd.
, 2011 SCC 42, [2011] 3 S.C.R. 45, at para. 19, the motion judge observed
    that striking claims with no reasonable prospect of success is a valuable
    housekeeping measure essential to effective and fair litigation. It unclutters
    the proceedings, weeding out the hopeless claims and ensuring that those that
    have some chance of success go on to trial. She added that having a r. 21 motion
    heard before trial enables the defendant to know the case it must meet and the plaintiff
    to know what evidence it must marshal, at trial.

[14]

The motion judge expressed her view that r. 21
    motions should be heard at the earliest date. Such motions are intended to
    dispose of claims that have no chance of success because they have no basis in
    law. It is preferable that they be decided well in advance of trial so that the
    issues for adjudication are clarified at an early stage, and time and expense
    is not wasted on developing and defending such claims. There is no advantage to
    delaying this Motion until trial  an evidentiary record is not necessary since
    the Motion is determined on the pleadings.

B.

The law on wrongful life cases

[15]

The motion judge described a claim for wrongful
    life as one asserted by the child for a pregnancy that results in birth defects
    and where the child argues that, but for the negligence of the doctor, the child
    would not have been born.

[16]

The motion judge then discussed the relevant
    caselaw, beginning with
Dobson (Litigation Guardian of) v. Dobson
,
[1999]
    2 S.C.R. 753, in which the Supreme Court held no duty of care could or should
    be imposed on a pregnant woman to her fetus or subsequently born child.

[17]

Next, the motion judge discussed
Lacroix (Litigation
    Guardian of) v. Dominique
, 2001 MBCA 122, 202 D.L.R. (4th) 121, leave to
    appeal refused, [2001] S.C.C.A. No. 477. In
Lacroix
, a claim was
    brought because of abnormalities to a child caused by epilepsy medication the
    mother had taken while pregnant. The Manitoba Court of Appeal described the
    case as one of wrongful life because, had the mother known the effect of the
    medication, she either would not have taken it while pregnant or she would not
    have become pregnant; thus, the child would not have been born. The court did
    not recognize an action for wrongful life. It followed the reasoning in
McKay
    v. Essex Area Health Authority
, [1982] Q.B. 1166 (Eng. C.A.), and held
    that a doctor did not owe a future child a duty of care to not prescribe a
    medication to the mother because the imposition of such a duty would
    immediately create an irreconcilable conflict between the duty owed by the
    doctor to the child and that owed to the mother: at para. 39. In
Lacroix
,
    the court also said that claims based on the imposition of a duty on doctors to
    a future child are contrary to public policy because it would be impossible to
    assess damages.

[18]

The motion judge then summarized three Ontario
    appellate decisions discussed later in these reasons:
Bovingdon (Litigation
    Guardian of) v. Hergott
, 2008 ONCA 2, 88 O.R. (3d) 641, leave to appeal refused,
    [2008] S.C.C.A. No. 92;
Paxton v. Ramji
, 2008 ONCA 697, 92 O.R. (3d)
    401, leave to appeal refused, [2008] S.C.C.A. No. 508; and,
Liebig v.
    Guelph General Hospital
, 2010 ONCA 450, 321 D.L.R. (4th) 378.

C.

Application of the law to the facts of this case

[19]

To decide the Motion, the motion judge began by examining
    the nature of the claims advanced in the pleadings. She observed that the Appellants
    brought the Action in their own right pursuant to the provisions of the
Family
    Law Act
, R.S.O. 1990, c. F.3. She said it was unclear how their claims
    could be so asserted
.

[20]

The motion judge accepted the pleadings as true
    for the purposes of the Motion: the Respondent was negligent in prescribing
    Serophene to Ms. Florence because it was unreasonable and unnecessary; Ms.
    Florence was not provided with information concerning the risks of multiple and
    premature births, and the resultant injuries to the babies associated with
    taking the medication; and, Ms. Florence took the prescribed fertility drug
    which resulted in her becoming pregnant with triplets who were born with very
    serous disabilities because of the prematurity of their birth.

[21]

The motion judge observed that the allegations
    of negligence against the Respondent all relate to her care and treatment of
    Ms. Florence  there was no pleading of a duty owed to the triplets by the [Respondent]
    in any capacity.

[22]

She noted that Ms. Florence can maintain a claim
    in negligence against the Respondent and that it is settled law that a child,
    once born alive, can sue for injuries as a result of negligence committed while
    in the womb.
[4]

[23]

However, the motion judge stated, in this case
    there was no injury to the fetus arising from a negligent act because
    conception had yet to take place. Accepting that the medication ought not to
    have been prescribed to Ms. Florence and it was an act of negligence to do so,
    the medication itself did not cause the birth defects or neurological injuries
    to the Appellants. According to the pleadings, Serophene increased the
    likelihood of multiple births and premature delivery, which resulted in the
    Appellants impairments.

[24]

The motion judge concluded that the Appellants
    claims are that they would not have been born had the negligence not occurred,
    making them a case which the courts have described as wrongful life claims.

[25]

The motion judge accepted the Appellants
    assertion that this court has not said that a wrongful life claim could never
    be successful. She pointed to para. 73 of
Bovingdon
, where Feldman
    J.A., writing for this court, said it was unclear whether the courts would
    necessarily dismiss every claim for wrongful life and to determine whether the claims
    of unborn children can be maintained, it is necessary to decide in each case
    whether the doctor owed a duty of care to the future child. If such a duty has
    been previously found to exist, the court is to apply standard negligence law.
    If not, the court must undertake an
Anns

analysis.

[26]

Because the relationship in the pleadings in
    this case has not been recognized as giving rise to a duty of care, the motion
    judge undertook the two-part
Anns

test which she described as
    follows. First, is there a relationship of proximity between the two parties in
    which a failure to take reasonable care might foreseeably cause loss or harm to
    a party? If so, then a
prima facie

duty of care arises. Second,
    are there policy reasons why the
prima facie

duty of care should
    not be recognized?

[27]

Relying on para. 75 of
Paxton
, the
    motion judge said that for legal proximity to exist, the relationship between
    the doctor and unborn child must be both close and direct. In
Paxton
,
    the court found that the relationship was indirect: the doctor could not provide
    recommendations to, nor take instructions from, a future child. The motion
    judge found, for the reasons given in
Paxton
, that the relationship in
    this case lacks the necessary proximity to establish a
prima facie

duty
    of care.

[28]

Relying on the reasoning in
Bovingdon

and

Paxton
,
the motion judge said that to impose a duty of
    care on the doctor to the unborn children, in addition to the doctors duty of
    care to the mother, could create a conflict of interest in terms of the
    treatment offered to the woman and place the doctor in an impossible position
    because of competing duties owed.

[29]

The motion judge rejected the Appellants
    argument that their case is distinguishable from
Bovingdon
, which was
    solely an informed consent case. She said that the additional claim of
    negligence asserted against the Respondent did not change the analysis to be
    undertaken in determining whether a duty of care was owed to the unconceived
    children. She found the Appellants case to have very similar facts to those in
Bovingdon
, in which this court concluded that the doctor owed no duty
    of care to future children to not cause them harm in prescribing fertility
    drugs to the mother.

[30]

The motion judge said the policy considerations set
    out in
Paxton
on the second branch of the
Anns

test concerning
    womens autonomy and the potential for conflicting duties on the doctor were
    present in this case.

[31]

The motion judge concluded that no duty of care to
    the Appellants, as unconceived babies, should be recognized. She stated that this
    court has rejected wrongful life claims and the lower courts are bound by that
    jurisprudence. In her view, this court has closed the door on cases arising
    from the prescription of fertility drugs that result in premature births.

[32]

Because the motion judge viewed the law to be
    clear that the Appellants claims could not succeed, there was no need to wait
    until trial to determine whether the claims were viable. Accordingly, she
    granted the Motion and dismissed the Appellants claims without leave to amend.

III.

THE ISSUES

[33]

The Appellants submit that the motion judge erred
    in:

1.

failing to apply the limited-form
Anns

test
[5]
to the facts of this case;

2.

her application of
Bovington

and
Paxton
; and

3.

characterizing their claims as ones for
    wrongful life and categorically denying them.

IV.

THE STANDARD OF REVIEW

[34]

The parties are agreed that this court is to
    review the motion judges decision on a standard of correctness.

V.

THIS COURTS CASELAW

[35]

The primary task on this appeal is to determine
    whether the motion judge properly adhered to this courts jurisprudence.
    Consequently, before addressing the issues, it is necessary to carefully examine
    the decisions of this court in
Bovingdon
,
Paxton
, and
Liebig
.

Bovingdon

[36]

A doctor prescribed a fertility drug to Ms.
    Bovingdon. She became pregnant with twins and gave birth to them prematurely.
    The twins were profoundly disabled as a result of their premature birth. Ms.
    Bovingdon, her husband, the twins, and other family members sued the doctor claiming
    that he failed to provide Ms. Bovingdon with all the information necessary
    to make an informed decision whether to take the fertility drug. The jury found
    the doctor negligent for failing to provide Ms. Bovingdon with the necessary information.
    The jury further found that had she been given that information, Ms. Bovingdon would
    not have taken the fertility drug.

[37]

The trial judge ruled that the twins claims
    were not wrongful life claims and the doctor owed them a duty of care. Because
    he breached that duty by failing to give their mother the necessary
    information, the trial judge held that the twins were entitled to recover
    damages in their own right.

[38]

On appeal to this court, the trial judge was
    found to have erred: the doctor did not owe a duty of care to the twins and
    they had no claims to advance.

[39]

In reaching this conclusion, Feldman J.A.,
    writing for the court, rejected the two-category approach used by other courts
    in deciding whether claims of future children should be recognized. Under the
    two-category approach, claims by children born with disabilities are divided
    into two categories: those in which the abnormalities were caused by the
    wrongful act or omission of another and those in which, but for the wrongful
    act or omission, the child would not have been born. The latter category has
    been termed wrongful life claims. While Feldman J.A. viewed the twins claims
    as falling into the category of wrongful life claims, she said that the
    two-category approach was not a helpful analytical basis for assessing such
    claims because the facts can lead to a child being placed in either or both
    categories. For example, in
Lacroix
, because it was the epilepsy drug
    that caused the injury to the fetus, the cause of action could be viewed (as it
    was) as one for wrongful life but it could also be viewed as one where the act
    of the doctor in prescribing the drug caused the damage. Instead of placing a
    claim in one of the two categories, Feldman J.A. directed the courts to use the
    normal analysis of tort liability because the real question is whether the
    doctor owed a duty of care to the future child in the circumstances of the
    case.

[40]

In
Bovingdon
, Feldman J.A. concluded that
    the doctor did not owe a duty of care to future children not to cause them harm
    by prescribing the fertility drug to the mother. The doctor owed a duty of care
    only to the mother to provide her with sufficient information to make an
    informed decision whether to take the fertility drug; so long as that was done,
    the decision whether to take the drug was entirely that of the mother.

[41]

Justice Feldman viewed policy analysis as
    supporting her conclusion: a co-extensive duty of care to a future child would
    create a potential conflict of interest for the doctor, given the doctors duty
    to the mother. The policy of ensuring that womens choice of treatment be
    preserved further supported her conclusion that the doctor owed no legal duty
    to the future children.

[42]

Justice Feldman stated, at para. 73 of
Bovingdon
,
    that it is undecided whether the Ontario courts would necessarily dismiss every
    claim for wrongful life. She added that a proper consideration of that question
    would require the court to address the policy issue of whether such claims
    should exist in our law.

Paxton

[43]

In
Paxton
, a doctor prescribed Accutane,
    an acne medication, to the mother of the appellant child on the understanding
    that she could not get pregnant while taking the medication. The doctors
    understanding  shared by the mother  was based on the appellants father having
    had a vasectomy four and a half years earlier, which had been successful up to
    the time the mother became pregnant with the appellant. The appellant, her
    parents, and her siblings sued the doctor.

[44]

The trial judge found that the doctor owed a
    duty of care to the appellant pre-conception to not prescribe Accutane to her
    mother without taking all reasonable steps to ensure the mother would not
    become pregnant while taking the medication. However, the trial judge found
    that the doctor met the standard of care by relying on the fathers vasectomy
    as an effective form of birth control. Accordingly, the trial judge dismissed
    the appellants action against the doctor.

[45]

The appellant appealed to this court. Justice
    Feldman, writing for the court, agreed that the appellants action against the
    doctor should be dismissed but did so because she concluded that the doctor did
    not owe a duty of care to the future child. She stated that, rather than
    deciding whether the appellants claim was for wrongful life, the court should determine
    whether the doctor owed the future child a duty of care in accordance with the
Anns

test.

[46]

In
Paxton
, Feldman J.A. concluded that the
    potential for harm to a fetus while
in utero

from exposure to
    Accutane is reasonably foreseeable. However, the doctor and future child were
    not in a sufficiently close and direct relationship to make it fair and just
    that the doctor should owe a duty of care to the future child. The relationship
    was necessarily indirect: the doctor could not advise or take instructions
    from a future child.

[47]

Justice Feldman also viewed policy
    considerations as militating against a finding of proximity. She pointed to the
    prospect of conflicting duties if the doctor were found to owe a duty of care
    to the future child as well as the mother, noting that these conflicting duties
    could well have an undesirable chilling effect on doctors.

[48]

Justice Feldman further found that residual
    policy considerations at the second stage of the
Anns

analysis
    make it unwise to impose such a duty of care. In addition to the policy issues she
    identified in the first stage of the analysis, Feldman J.A. said that recognizing
    such a duty would interfere with the doctors existing legal obligation to the
    patient, which includes the womens right to abort a fetus. Imposing a duty of
    care on a doctor to a future child would interfere with the exercise of that
    right.

Liebig

[49]

Kevin Liebig suffered injuries during childbirth
    resulting in cerebral palsy. He, his parents, and other family members brought
    an action claiming against the hospital where he was born and the physicians
    and nurses who provided care up to and including his delivery. The plaintiffs
    claimed that Kevins injuries were caused by negligence (or breach of contract)
    immediately before and during the delivery process. The defendants refused to
    admit they owed a duty of care to Kevin in relation to his delivery. As a
    result, the plaintiffs brought a r. 21 motion for a declaration, before trial,
    that the defendants owed Kevin such a duty. The motion was granted, and the defendants
    appealed to this court.

[50]

A five-person panel dismissed the appeal based
    on well-established law: an infant, once born alive, can sue for damages
    sustained as a result of the negligence of healthcare providers during labour
    and delivery. While this was sufficient to resolve the appeal, because the
    central point of contention between the parties related to
Bovingdon

and
Paxton
,
the court went on to discuss those decisions.

[51]

The court noted that both
Bovingdon

and
Paxton
dealt with the situation in which a doctor prescribed drugs to
    a woman who was not pregnant at the time. In
Bovingdon
, the drug was a
    fertility drug that increased the likelihood of bearing twins and, by
    extension, the risk of complications associated with the birth of twins. In
Paxton
,
    the drug was intended to treat the womans acne but could harm a fetus if
    conception were to occur while it was being taken.

[52]

At para. 11 of
Liepig
, this court said
    that cases such as
Bovingdon
and
Paxton
involve claims which have
    been characterized as claims for wrongful life.

It affirmed the direction in
Bovingdon

and
Paxton
that a court should proceed not by deciding whether to
    recognize a claim for wrongful life but, instead, by conducting an analysis of whether
    a doctor owed a separate duty of care to a future child. The concluding
    sentence in para. 11 of
Liebig

is particularly significant to
    this appeal so I set it out in full:

Both
Bovingdon
and
Paxton
hold that there is no duty of care to a future child if the
    alleged negligence by a healthcare provider took place prior to conception.

Issue #1: Did the motion judge err in failing
    to apply the limited-form
Anns

test to the facts of this
    case?

[53]

The Appellants arguments relating to the motion
    judges
Anns

analysis are commingled in Issues #1 and #2. I
    will address their primary submission on Issue #1 and deal with the others in
    my analysis of Issue #2.

[54]

The Appellants primary submission on Issue #1 is
    that the
Anns

analysis must begin with an accurate
    characterization of the proposed duty of care and the motion judge failed in
    that regard. They argue that the correct characterization of the proposed duty of
    care is as follows: the Respondent owed the Appellants a duty of care to not
    prescribe a clinically contraindicated fertility drug to their mother. Instead
    of examining the specific proposed duty of care that they asserted, the Appellants
    say the motion judge mischaracterized their claims as predicated on informed
    consent.

[55]

I do not accept this submission.

[56]

At para. 55 of the Reasons, the motion judge dealt
    with the Appellants assertion that their claim could be distinguished from
Bovingdon
 which was solely an informed consent case  because of their additional
    allegation of negligence. She correctly identified the Appellants additional allegation
    as the prescription of the fertility drug to Dana Florence was contraindicated
    given her particular situation (the 
additional allegation
).

[57]

The motion judge said that the difference
    between the Appellants claims and those of the twins in
Bovingdon
was
    a distinction without a difference because the additional allegation did not change
    the analysis necessary to determine if a duty of care was owed to the
    unconceived children. I agree.

[58]

The Appellants argument on this issue conflates
    three related, but distinct, legal concepts: negligence, duty of care, and the
    obligations that arise from owing a person a duty of care.

[59]

It is trite law that for a claim in negligence
    against a doctor to succeed, the plaintiff must establish that: the doctor owed
    the plaintiff a duty of care; the doctor breached the standard of care; and,
    the plaintiff suffered damages as a consequence of the breach.

[60]

In this case, there is no question that the
    doctor-patient relationship between the Respondent and Ms. Florence gave rise
    to a duty of care. In fulfilling that duty of care, among other things, the
    Respondent was obliged to give Ms. Florence the information necessary for her to
    make an informed decision whether to take medications that the Respondent
    prescribed to her. On the pleadings, the Respondent allegedly breached the
    standard of care by failing to give Ms. Florence the information necessary to
    make an informed decision whether to take Serophene and by prescribing Serophene
    to Ms. Florence when it was contraindicated.

[61]

The duty of care the Respondent owed to her
    patient, Ms. Florence, cannot be conflated with the Respondents obligation to meet
    the standard of care that she owed Ms. Florence. The additional allegation is
    relevant to whether the Respondent breached the standard of care; it is not relevant
    to whether she owed Ms. Florence a duty of care.

[62]

For the same reason, the additional allegation is
    not relevant to whether the Respondent owed the Appellants, as unconceived
    babies, a duty of care. A consideration of the
Anns

analysis demonstrates
    this.

[63]

To decide whether to recognize a novel duty of
    care, the court must conduct the two-stage
Anns

analysis. In
    the first stage, the court determines whether a
prima facie

duty
    of care should be recognized based on the reasonable foreseeability of harm and
    whether the proposed relationship is sufficiently close and direct. Policy
    considerations that affect the relationship are also considered in the stage
    one analysis. If the stage one analysis leads to the
prima facie

conclusion
    that a duty of care should be recognized, the court moves to the second stage.
    In the second stage, the court determines whether, despite having found a
prima
    facie

duty of care, there are residual policy reasons to reject
    such a duty.
[6]

[64]

The focus of the
Anns

analysis is
    on the relationship between the parties at the relevant time. In this case, as the
    motion judge correctly recognized, the Appellants claims rest on the purported
    relationship between the Respondent and them, as unconceived babies, when the
    Respondent prescribed Serophene to their mother. That was the relationship which
    had to be examined, using the
Anns

analysis, to determine
    whether the Respondent owed the Appellants a duty of care.

[65]

The additional allegation is not part of the
    proposed relationship. It is an alleged breach of the standard of care. That
    is, it is an allegation that the Respondent fell below the standard of care either
    by prescribing Serophene to Ms. Florence or by failing to give Ms.
    Florence the necessary information so she could make an informed decision
    whether to take the Serophene. As I have explained, a consideration of the
    additional allegation would be undertaken only if the court had found that the Respondent
    owed the Appellants, as unconceived babies, a duty of care.

Issue #2: Did the motion judge err in her application
    of
Bovington
and
Paxton?

[66]

The Appellants primary submission on Issue #2
    is that the motion judge erred in concluding their claims were not viable in
    law based on
Bovingdon

and
Paxton
. They argue that the
    motion judge over-relied on the superficial similarities between this case
    and
Bovingdon
and, as a result, failed to conduct a meaningful
Anns

analysis. They point to the factual distinction between their claims  that
    prescribing Serophene to Ms. Florence was contraindicated  and those in
Bovingdon

and
Paxton

where the prescribed medication was appropriate
    (the 
factual distinction
). According to the Appellants, there
    is no prospect of the doctor owing conflicting duties so the concerns
    identified in
Bovingdon

and

Paxton

are
    inapplicable.

[67]

I do not accept this submission.

[68]

As I explain in Issue #1, the factual
    distinction is a distinction without a difference for the purpose of
    determining whether the Respondent owed the Appellants, as unconceived
    children, a duty of care. Further, the similarities between this case and
Bovingdon

are far from superficial. I agree with the motion judge that the claims
    made in
Bovingdon

are very similar to those in this case for
    the purposes of the
Anns

analysis. In both, the doctor
    prescribed a fertility drug to the mother, allegedly having failed to provide
    her with sufficient information to make an informed decision whether to take
    the drug. While there is the additional allegation in this case, as I have explained,
    it is not relevant to whether the Respondent owed the Appellants, as
    unconceived babies, a duty of care  its relevance is to whether by prescribing
    Serophene, the Respondent breached the standard of care she owed to Ms.
    Florence.

[69]

Nor are the similarities between this case and
Bovingdon

and
Paxton

superficial. In all three, the proposed duty of
    care was precisely the same: at the time that the doctor prescribed the medication
    to the mother, did the doctor owe the unconceived baby or babies a duty of
    care?

[70]

Furthermore, having correctly viewed the
    Appellants claims as raising similar considerations in the duty of care
    analysis to those in
Bovingdon

and
Paxton
, the motion
    judge made no error in heavily relying on the reasoning in those cases. That
    reliance does not mean the motion judges analysis was superficial or lacking.
    Once she correctly concluded there was no meaningful difference between this
    case and
Bovingdon
and
Paxton
in terms of the duty of care
    analysis, the principle of
stare decisis

required the motion
    judge to adhere to those cases and apply the legal principles they established.

[71]

Further and in any event, the motion judge conducted
    a meaningful
Anns

analysis. She accepted the Appellants contention
    that their claims met the reasonable foreseeability requirement in stage one:
    doctors who are considering prescribing a fertility medication should
    reasonably have the mothers unconceived children in their contemplation. To
    raise a
prima facie

duty of care, however, the relationship
    between the Respondent and the Appellants, as unconceived babies, must also be
    sufficiently proximate  that is, the relationship must be sufficiently close
    and direct. Following the reasoning at para. 75 of
Paxton
, the motion
    judge found that it was not: the doctor cannot take instructions from nor
    advise an unconceived child. The motion judge also pointed to the policy
    considerations identified at para. 76 of
Paxton
,
which inform
    the stage one analysis and militate against finding a duty of care: such a duty
    could create a conflict of interest in terms of the treatment offered to the
    woman and could place the doctor in an impossible position because of the
    competing duties owed.

[72]

The Appellants contend that there would be no
    conflicting duties owed by the doctor in this case because the duty owed to Ms.
    Florence and the Appellants was one and the same: to not prescribe
    contraindicated and potentially dangerous medications. This argument arises
    from the same misunderstanding I identified in Issue #1. There is no duty of
    care to not prescribe contraindicated medication. Whether the medication is
    contra-indicated is not relevant when the court is determining whether the
    doctor owes a duty of care to unconceived babies as well as to the mother when
    the doctor is prescribing fertility medication.

[73]

In any event, the Appellants contention is
    misguided. The conflict of interest consideration is part of the policy
    analysis in the stage one
Anns

analysis. Policy considerations are
    necessarily general in nature. In general, doctors would be placed in a
    conflict of interest position if they owed a duty of care to their patient and
    to that patients future, unconceived children. While there might be situations
    in which no such conflict arises in respect of a particular medication or
    treatment, that does not derogate from the validity of the general policy
    concern that doctors would be placed in an unworkable position due to the
    inherent conflict of interest that would arise if they were found to owe a duty
    of care both to their patient and that patients future children. The motion
    judge made no error in concluding that such a concurrent duty of care would
    place the doctor in an impossible position.

Issue #3: Did the motion judge err in characterizing
    the Appellants claims as ones for wrongful life and categorically denying them?

[74]

The Appellants submit that, instead of applying the
Anns

analysis to determine if it was plain and obvious their
    claims were not actionable, the motion judge struck them simply because they
    are wrongful life claims. In making this submission, the Appellants rely on the
    following statement at para. 60 of the Reasons: The appellate court in Ontario
    has rejected wrongful life claims, and the lower courts are bound by this
    jurisprudence (the 
Impugned Statement
).

[75]

I do not accept this submission.

[76]

The motion judge expressly acknowledged that this
    court has not said that a wrongful life claim could never be successful (para.
    47 of the Reasons). She also referred to Feldman J.A.s comment, at para. 73 of
Bovingdon
, that it is undecided whether the courts of this province would
    necessarily dismiss every claim for wrongful life.

[77]

Further, as I explain above on Issue #2, the
    motion judge followed the dictates of this court and determined whether the Appellants
    claims are viable by conducting the
Anns

analysis. In
    conducting that analysis, she carefully and thoughtfully examined this courts
    relevant jurisprudence.

[78]

Accordingly, when the Impugned Statement is read
    in context, it is clear that it was simply the motion judges view of Ontarios
    appellate jurisprudence coupled with her recognition that, as a lower court,
    she was obliged to follow that jurisprudence. She struck the Appellants claims
    not because she labelled them wrongful life claims but because, after
    conducting the
Anns

analysis, she found it was plain and obvious
    those claims are not viable in law.

VI.

THE BROADER ISSUES

[79]

The above analysis addresses the specific issues
    identified by the Appellants and explains why, in my view, the motion judge correctly
    applied the
Anns

analysis and

determined that it is plain
    and obvious the Appellants claims cannot succeed. However, I have yet to
    address the parties overarching positions on appeal. I now deal with each in
    turn.

[80]

The Appellants overarching position is that they
    should be afforded the opportunity to present a full factual and evidentiary
    record at trial before the court decides whether their claims should be
    recognized at law. They point to the factual difference between their case and
    the decided cases:
Bovingdon

and
Paxton
were solely
    informed consent cases whereas their claim is also based on the allegation that
    the prescribed medication was contraindicated. Further, the Appellants contend,
    the duty of care they assert has wide implications of public importance relating
    to the prolific prescription of fertility drugs, and the serious consequences
    borne by the public healthcare system and taxpayers as a result. In their
    submission, only a trial will enable the court to conduct a comprehensive
Anns

analysis, including due consideration of those policy concerns, to
    determine whether the Respondent owed them a duty of care in the specific
    circumstances of this case.

[81]

I do not agree that a trial is necessary for the
    court to decide whether the Appellants claims should be recognized at law. The
    motion judge made no error in striking the Appellants claims before trial, without
    an evidentiary record.

[82]

Rule 21 motions are intended to dispose of
    claims that have no chance of success because they have no basis in law. They
    are argued and decided strictly on the pleadings. In this case, there can be no
    further material facts that might emerge at trial which could alter the legal
    reality of the Appellants claims. The motion judge took the Appellants claims
    as pleaded, at their highest, and determined that it was plain and obvious that
    their claims are not viable in law because the Respondent could not owe them a
    duty of care, as unconceived babies, when prescribing fertility medication to
    their mother. I agree. That determination flows from this courts jurisprudence;
    a full evidentiary record is not needed to determine the question of law raised
    on this pleadings motion.

[83]

I conclude on the Appellants overarching
    submission by recalling the point that the Supreme Court made at para. 19 of
Imperial
    Tobacco
: striking claims with no reasonable prospect of success is
    essential to effective and fair litigation. It unclutters the proceedings,
    weeds out hopeless claims, and ensures that claims with some chance of success
    go to trial. Both plaintiffs and defendants benefit because they understand the
    parameters of the case and they can focus their efforts on viable claims. Rule
    21 also serves an access to justice purpose: keeping litigants focussed on
    viable claims in civil litigation leads to reduced trial time, and a lessening
    of the associated costs, both human and financial.

[84]

The Respondents overarching position on appeal
    is that, in Ontario, it is settled law that a physician does not owe a duty of
    care to a future child for alleged negligence that occurred pre-conception.

[85]

I begin by observing that, based on
Bovingdon
,
    it is settled law in Ontario that a physician owes no duty of care to future
    children when prescribing fertility drugs to the mother. That, however, does
    not address the broader proposition of law which the Respondent asks this court
    to affirm.

[86]

Against that broad proposition, the Appellants
    point to para. 73 of
Bovingdon
, where Feldman J.A. said that it is
    undecided whether the courts of this province would necessarily dismiss every
    claim for wrongful life and that a proper consideration would require the
    courts to address the policy issue of whether such claims should exist in our
    law. And, at para. 32 of
Paxton
, Feldman J.A. reiterated that
    where the proposed duty of care is novel, the court must conduct the
Anns

analysis to determine whether such a duty of care should be recognized.

[87]

However, at para. 11 of
Liebig
,
a
    five-person panel of this court stated that both
Bovingdon

and
Paxton

hold that there is no duty of care to a future child if the alleged
    negligence by a healthcare provider took place prior to conception (the 
Statement
).
    As a member of the panel that decided
Liebig
, I agreed with the
    Statement then and I agree with it now.

[88]

I recognize that the Statement in
Liebig

is
obiter
.
Liebig

was decided on the settled law
    principle that an infant born alive may sue for damages sustained as a result
    of the negligence of healthcare providers during labour and delivery.
    Nonetheless, the Statement reflects the considered opinion of a five-person
    panel of this court.

[89]

Further and importantly, the
Anns

analysis
    conducted by the motion judge in this case shows that, based on this courts
    jurisprudence, the claims by unconceived babies against physicians for alleged
    negligence that occurred pre-conception will necessarily result in a
    determination that the claims are not viable in law. While the reasonable
    foreseeability requirement will normally be met, the policy considerations at
    both the first and second stages of the
Anns

analysis militate
    against finding such a duty of care. Those same proximity and policy
    considerations exist whenever the proposed duty of care by a future child is
    based on a physicians alleged negligence that occurred pre-conception.

[90]

Stare decisis

is the policy of the courts to stand by
    precedent and not disturb settled points of law. Once a principle of law has
    been held to be applicable to a certain state of facts, the courts are to
    adhere to that principle, provided the facts of the case before them are
    substantially the same. Accordingly, in my view, in Ontario, it is settled law
    that a physician does not owe a duty of care to a future child for alleged
    negligence that occurred pre-conception.

VII.

DISPOSITION

[91]

For these reasons, I would dismiss the appeal with costs to the
    respondents fixed at the agreed-on sum of $15,000, all inclusive.




Fairburn A.C.J.O. (dissenting):

A.

Overview

[92]

My colleagues reasons, at para.
    1, commence with the following helpful question:

Is it settled law, in Ontario,
    that a physician does not owe a duty of care to a future
[7]
child for alleged negligence
    that occurred pre-conception?

[93]

In my view, the determinative
    question on this appeal is slightly different. This difference, however, is
    important because it leads to a different conclusion about the correct disposition
    of this appeal. I would pose the question as follows:

Is it settled law, in Ontario,
    that
there are no circumstances in which a physician could
owe a duty of care to a future child for alleged negligence that occurred
    pre-conception?

[94]

As I will explain, on my reading
    of the relevant caselaw, the existing jurisprudence leaves open the possibility
    that there could be circumstances in which a physician would owe a duty of care
    to a future child for alleged negligence that occurred pre-conception: see
Bovingdon
    v. Hergott
, 2008 ONCA 2, 88 O.R. (3d) 641, leave to appeal refused, [2008]
    S.C.C.A. No. 92;
Paxton v. Ramji
, 2008 ONCA 697, 92 O.R. (3d) 401, leave
    to appeal refused, [2008] S.C.C.A. No. 508; and
Liebig v. Guelph General
    Hospital
, 2010 ONCA 450, 321 D.L.R. (4th) 378.

[95]

As I will also explain, I
    respectfully disagree that this case is necessarily on all fours with
Bovingdon
.
    Remaining focused on the fact that this is an appeal from the dismissal of a
    claim under r. 21 of the
Rules of Civil Procedure
, R.R.O. 1990, Reg.
    194, in my view, it is arguable that this case is distinguishable from
Bovingdon
because, unlike in
Bovingdon
, the fertility drug in this case is said to
    have been contraindicated. While I agree with my colleague that whether a
    drug is contraindicated or not is relevant to the issue of standard of care,
    as I will explain, it may also be relevant to whether there exists a duty of
    care and, more specifically, to the question of proximity.

[96]

Given that it is not plain and
    obvious that the claim of Brody, Cole, and Taylor Florence, the appellants,
    will fail, their claim should not have been struck under r. 21 of the
Rules
    of Civil Procedure
. Therefore, I would allow the appeal and order that the
    matter proceed to trial.

B.

the pleadings and the word contraindication

[97]

My colleague sets out a helpful
    review of the legal underpinnings and policy rationale for the operation of r.
    21 of the
Rules of Civil Procedure
. I have nothing to add to that
    review. Rule 21 motions are indeed essential to the administration of justice,
    ensuring that only those matters that should go to trial do go to trial: see
R.
    v. Imperial Tobacco Canada Ltd.
, 2011 SCC 42,
[2011] 3 S.C.R. 45, at para. 19
.

[98]

As we must on a r. 21 matter, I
    accept as true the facts as pleaded in the Amended Statement of Claim of the
    appellants and Dana Florence, the appellants mother. Those facts include that
    Dr. Susan Benzaquen, the respondent, prescribed Serophene to the appellants
    mother. Serophene is a fertility drug that increased the chances of carrying
    multiple fetuses, which in turn increased the chances of premature births and
    of serious health-related complications for any children who survived after
    childbirth. That is the precise chain of events that occurred in this case. The
    appellants were conceived in multiples, born prematurely, and, as the motion
    judge noted, it is not disputed that they have serious disabilities as a
    result of their premature birth.

[99]

The Amended Statement of Claim
    essentially alleges two types of negligent conduct by the respondent: (1) the
    failure to provide the appellants mother with all of the information
    necessary to make a considered and informed decision regarding the use of
    Serophene; and (2) the recommendation and prescription of Serophene that
    was contraindicated under the circumstances.
[8]

[100]

I understand the appellants to be
    using the term contraindicated to mean that, in light of the particular
    circumstances involved, no non-negligent physician could have prescribed the
    fertility drug in the first place. While it seems only logical that there could
    be different degrees of contraindication in the medical sphere, without the
    benefit of expert evidence at a trial, I would not venture down that path. For
    now, this being an appeal from the dismissal of a claim under r. 21 of the
Rules
    of Civil Procedure
, and without the benefit of trial evidence, I would
    simply note my understanding of the pleadings at their highest: that under the
    circumstances of this case, no physician acting in a non-negligent manner
    could have prescribed Serophene to the appellants mother. In other words, that
    the alleged contraindication meant that the respondent should not have
    prescribed Serophene to the appellants mother, without exception or
    qualification.

[101]

I wish to make clear at the outset
    that these reasons are directed only at the second form of alleged negligent
    conduct: the allegation involving the prescription of a contraindicated
    fertility drug. As for the first alleged form of negligence, the failure to
    provide the appellants mother with all of the necessary information to make an
    informed decision, I join suit with my colleague and the motion judge. If this
    were a case only about informed consent, then this courts jurisprudence 
    primarily
Bovingdon
 would make it plain and obvious that the
    appellants claim could not succeed. Therefore, it is only the second form of
    alleged negligent conduct that these reasons are addressing: that it was
    negligent to prescribe Serophene in the first place because it was
    contraindicated under the circumstances.

[102]

Regarding the particular
    circumstances of this case, the pleadings suggest that the respondent failed to
    conduct appropriate tests, examinations, and diagnostic evaluations to
    determine whether or not [the appellants mother] in fact had anovulatory
    cycles, or any other conditions that may have caused concern regarding her
    intended conception. The pleadings also refer to the following circumstances
    that could point toward the contraindicated nature of Serophene in this case:
    the relative youth of the appellants mother; the very short time that she had
    been attempting to conceive; and other indicators present in
[
the appellants
    mothers
]
clinical condition which suggested that the use of Serophene was
    unreasonable under the circumstances.

[103]

As my colleague notes, the
    appellants assert that the respondent owed a concurrent duty of care to their
    mother and to them to not prescribe to their mother a contraindicated and
    potentially dangerous fertility drug that the respondent knew, or ought to have
    known, could cause harm not only to their mother but also to them.

C.

ANALYSIS

[104]

Before turning to the relevant
    caselaw from this court, it is helpful to recall the tort law principles
    defining a duty of care.

[105]

At stage one of the
Anns/Cooper
test, the court will consider whether there is a
prima facie
duty of
    care:
Anns v. Merton London Borough Council
,
[1977] UKHL 4, [1978] A.C. 728;
Cooper v. Hobart
, 2001 SCC 79, [2001] 3 S.C.R. 537.
For there to be a
prima facie
duty of care, both proximity and
    reasonable foreseeability of the harm must be established:
Cooper
, at
    paras. 30-31. In
1688782 Ontario Inc. v. Maple Leaf Foods Inc.
, 2020 SCC
    35, 450 D.L.R. (4th) 181, the Supreme Court of Canada had the following to say
    about proximity, at para. 31:

A party may seek
    to base a finding of proximity upon a previously established or analogous
    category ([
Deloitte & Touche v. Livent Inc. (Receiver of)
, 2017 SCC
    63, [2017] 2 S.C.R. 855], at para. 28). But where no established proximate
    relationship can be identified, courts must undertake a full proximity analysis
    in order to determine whether the
close and direct
relationship  which
    this Court has repeatedly affirmed to be the hallmark of the common law duty of
    care  exists in the circumstances of the case (
ibid
., at para. 29; [
Saadati
    v. Moorhead
, 2017 SCC 28, [2017] 1 S.C.R. 543], at para. 24;
Cooper
,
    at para. 32). [Emphasis in original.]

[106]

Where there is no established or
    analogous category, the court will undertake a full proximity analysis. To
    determine whether a close and direct relationship exists, courts must examine
    all relevant factors arising from the relationship between the plaintiff and
    the defendant:
Deloitte & Touche v. Livent Inc. (Receiver of)
, 2017
    SCC 63, [2017] 2 S.C.R. 855, at para. 29. Relevant factors include
    expectations, representations, reliance, and the property or other interests
    involved, as well as any statutory obligations:
Deloitte
, at para. 29.
    The court will also focus on broad considerations of policy arising from the
    particular relationship between the plaintiff and the defendant at stage one of
    the
Anns/Cooper
analysis:
Edwards v. Law Society of Upper Canada
,
    2001 SCC 80,
[2001] 3 S.C.R. 562, at
    para. 9
.

[107]

At stage two of the
Anns/Cooper
test, the court will consider whether, despite finding a
prima facie
duty of care, there are residual policy reasons that justify rejecting a duty
    of care:
Edwards
, at para. 10. These are not concerned with the
    relationship between the parties, but with the effect of recognizing a duty of
    care on other legal obligations, the legal system and society more generally:
Cooper
,
    at para. 37.

[108]

I turn now to this courts
    decisions in
Bovingdon
,
Paxton
, and
Liebig
, which I
    conclude determine that this case should proceed to trial.

(1)

This Courts Jurisprudence

(a)

The
Bovingdon
Decision

[109]

My colleague, at para. 85 of her
    reasons, maintains that
Bovingdon
resolves this case: based on
Bovingdon
,
    it is settled law in Ontario that a physician owes no duty of care to future
    children when prescribing fertility drugs to the mother. While I accept that
Bovingdon
has resolved most fertility drug cases, I do not agree that
Bovingdon
is
    quite as far reaching as is suggested in my colleagues reasons.

[110]

In
Bovingdon
, the mother
    was prescribed the fertility drug Clomid. The fertility drug led to the
    conception of twins and their premature birth, which left them with serious
    disabilities. The jury concluded that the doctor was negligent for failing to
    provide the necessary information to the mother, and that had she been told of
    all the risks, she would not have taken the fertility drug. The trial judge
    ruled that, as a matter of law, the doctor owed a duty of care not only to the
    mother but also to the future twins, such that they were entitled to damages in
    their own right.

[111]

On appeal, this court concluded
    that the trial judge erred and that the doctor did not owe a duty of care to
    the future twins. Feldman J.A., who authored the decision, rejected the
    two-category approach that has been used by other courts when deciding whether
    claims of future children should be recognized: (1) claims where the
    disabilities were caused by the wrongful act or omission of another; and (2)
    those where, but for the wrongful act or omission, the child would not have
    been born: see
Lacroix (Litigation Guardian of) v. Dominique
, 2001 MBCA
    122, 202 D.L.R. (4th) 121, at para. 24, leave to appeal refused,
[2001] S.C.C.A. No. 477
. Claims falling within the latter category had historically been termed
    wrongful life claims. Many courts had historically rejected such claims on
    the basis that attempting to compensate a person for being alive is contrary to
    public policy. Feldman J.A. rejected this categorical approach and instead
    analyzed the claims through the normal analysis of tort liability:
Bovingdon
,
    at para. 61.

[112]

Before analyzing
Bovingdon
to explain why I do not see it as dispositive of the question on appeal, I
    pause to comment upon the use of the term wrongful life. It finds its genesis
    in early jurisprudence and appears to have become a shorthand way of referring
    to those cases involving claimants who were conceived often as a result of the
    alleged negligent act. Despite its common usage to this day, I do not use this
    term. In my respectful view, it fails to accurately capture and can
    inadvertently distort the true nature of the claims advanced by children born
    with disabilities that are caused by a physicians alleged negligent acts.

[113]

These childrens claims are not
    based on the fact of their birth but on the fact of their life-altering
    disabilities. The true essence of what are often referred to as wrongful life
    claims is not that the claimants are alive but that the claimants have been
    encumbered by profound life-altering disabilities. This case makes the point.
    The appellants claim is not wound up in some kind of objection that they were
    born and are now here living among us. Rather, their claim reflects that they
    are individuals, like the rest of us, who have been encumbered with significant
    disabilities requiring extraordinary care and services including assistance
    with all activities of daily living, as stated in their Amended Statement of
    Claim.

[114]

Coming back over to
Bovingdon
,
    Feldman J.A. rejected the previous binary approach that led to the dismissal of
    all claims where, but for the alleged negligent act, the child would not have
    been born. In place of that approach, Feldman J.A. insisted upon conducting a
    proper
Anns/Cooper
analysis.

[115]

The preponderance of expert
    evidence at the trial in
Bovingdon
established that prescribing Clomid
    to a woman in Ms. Bovingdons circumstances met the standard of care, as long
    as she understood the risks of conceiving multiples, prematurity, and
    consequent possible damage. In these circumstances, it was the mothers choice
    to make, and the focus was upon whether the mother was given adequate
    information to make an informed choice.

[116]

Therefore, unlike this case, the
    fertility drug in
Bovingdon
was not contraindicated:
Bovingdon
,
    at para. 59. Indeed, while explaining why the doctor owed no duty of care to
    the future twins in
Bovingdon
, Feldman J.A. contrasted the situation
    before her with a situation where a drug may be contraindicated, at paras.
    68-69:

Because the doctors duty with
    this type of drug is only to provide information sufficient to allow the mother
    to make an informed choice, it cannot be said that the children have a right to
    a drug-free birth. Nor can the doctor owe a duty to the children that is
    co-extensive with his duty to the mother. To frame the duty in that way is to
    overlook the fact, as discussed above, that the choice is the mothers; she is
    entitled to choose to take the drug and risk conceiving twins without
    considering their interests. If she does, the children have no complaint
    against her or the doctor.

In contrast,
    where a drug is contraindicated for a pregnant woman, the standard of care for
    the doctor may be either not to prescribe the drug or to ensure that the woman
    is taking all appropriate precautions to prevent pregnancy
.
[Emphasis added.]

[117]

Feldman J.A. then explained that
    as a matter of policy, a doctor cannot owe a co-extensive duty of care to a
    future child where the standard of care simply requires a doctor to give a
    woman the information necessary to make an informed decision about how to
    proceed, such as taking a fertility drug:
Bovingdon
, at para. 71.

[118]

Importantly, while concluding that
    
in the circumstances of this case
, there could be no breach of duty to
    the twins and no right for them to claim damages, Feldman J.A. left open the
    question as to whether in different circumstances, a doctor may owe a duty of
    care to a future child:
Bovingdon
, at para. 74 (emphasis added). Feldman
    J.A. made it clear in
Bovingdon
, at para. 73, that she was deciding the
    case narrowly, specifically noting that it is undecided whether the courts in
    Ontario would necessarily dismiss every claim where, but for the wrongful act
    or omission, the child would not have been born. Feldman J.A. went on to note
    that considering that question would
require
    the court to address the policy issue of whether such claims should exist in
    our law
:
Bovingdon
, at
    para. 73 (emphasis added).

[119]

Because the issue was obviated
    in
Bovingdon
, though, there was no need to resolve the broader issue. As
    Feldman J.A. put it in
Bovingdon
, at para. 73:

In this case, the issue is
    obviated because I have found that although the doctor breached his duty of care
    to the mother to give her full information to allow her to make an informed
    decision whether to take Clomid, he owed no duty of care to the unborn children
    when prescribing Clomid to a woman who wished to become pregnant
.

[120]

Therefore, I read
Bovingdon
as having expressly left open the question as to whether courts would reject
    all claims by future children where the alleged negligence occurred
    pre-conception.
Bovingdon
therefore leaves open the following question
    in this case: could a doctor owe a duty of care to a future child in
    circumstances where a contraindicated drug, including a contraindicated
    fertility drug, is prescribed?

[121]

In my view, the difference between
    a drug being indicated and a drug being contraindicated could have a
    serious impact on determining whether a physician owes a duty of care to a
    future child. That is why there needs to be a trial where the issues of
    contraindication can be explored with the assistance of expert evidence.

[122]

If it turns out to be true that no
    physician could have prescribed Serophene in the circumstances of this case,
    then the concerns over conflicting duties, as expressed in
Bovingdon
,
    fall away because the future mother and future childrens interests would
    align.

[123]

The potential for conflicting
    duties was a significant concern in
Bovingdon
and a central reason to
    find that there was no proximity and no duty of care owed to the future child:
    Where the standard of care on the doctor is to ensure that the mothers
    decision is an informed one, a co-extensive duty of care to a future child
    would create a potential conflict of interest with the duty to the mother:
Bovingdon
,
    at para. 71. In contrast, where the standard of care on the doctor is not to
    prescribe a drug at all, as opposed to making sure the mother is in a position
    to make an informed decision, then the co-extensive duty of care to a future
    child arguably does not create a potential conflict of interest with the duty
    to the mother.

[124]

Another very real concern
    expressed in
Bovingdon
was that the mothers right to choose would be
    undermined by imposing a duty of care on the doctor to the future twins. To be
    clear, I agree that the law must protect a womans absolute right to make
    informed choices about her own body, including informed choices about what
    drugs to consume. As Feldman J.A. put it in
Bovingdon
, at para. 68:

[T]he choice is the mothers; she
    is entitled to choose to take the drug and risk conceiving twins without
    considering their interests. If she does, the children have no complaint
    against her or the doctor.

[125]

This case, however, is arguably
    different than
Bovingdon
precisely
because
of the importance of a
    womans choice. Here, it is alleged that the fertility drug may have been
    contraindicated, such that it never ought to have been prescribed to the
    appellants mother as it was unreasonable to do so under the circumstances.
    If the evidence at trial bears this out, then there was no choice for the
    appellants mother to make. In that scenario, the choice given by the respondent
    is no choice at all, since the fertility drug should never have been
    prescribed. Therefore, choice is no longer relevant to imposing a co-extensive
    duty of care on the respondent to both the appellants and their mother.

[126]

I accept that there may be downsides
    to defining a doctors duty of care based on the fact of contraindication.
    However, in my view, this is an issue to be decided at trial, informed by
    expert evidence  evidence about the extent and nature of the alleged
    contraindication in this case.

[127]

Accordingly, at this juncture of
    my reasons, I wish to reinforce that my observations are squarely rooted in the
    fact that this is an appeal from a dismissal of the appellants claim under r.
    21 of the
Rules of Civil Procedure
. It is within that context that I
    respectfully disagree that it is plain and obvious, based on
Bovingdon
,
    that a physician could never owe a duty of care to future children when
    prescribing contraindicated fertility drugs to the mother. I am not saying
    that a doctor will owe that duty of care. I am saying that a trial is necessary
    to determine that question in this case because, in my view,
Bovingdon
has not only not resolved the issue but it has explicitly left the issue open
    for future consideration.

(b)

The
Paxton

Decision

[128]

Moreover, I do not read this
    courts later decision in
Paxton
as closing the door that was left open
    in
Bovingdon
.

[129]

In
Paxton
, the trial judge
    concluded that the doctor owed a duty of care to the future child of a woman of
    childbearing potential seeking Accutane for the treatment of acne. Accutane is
    a teratogenic drug that may cause birth defects if taken during pregnancy.
    Because of this, the drug manufacturer had developed a Pregnancy Protection
    Mainpro-C Program that doctors are to implement before prescribing Accutane to
    women of childbearing potential, in order to try to ensure they will not become
    pregnant while taking the drug. In
Paxton
, the doctor had discussed with
    the woman the necessity that she not become pregnant while taking the drug. He
    had also determined that her husband had an effective vasectomy four and a half
    years prior and that the patient had no other sexual partners. He had also
    given her a pregnancy test that came back negative, following which the patient
    began to take the drug. In short, Accutane was a drug that doctors were
    specifically permitted to prescribe to women if they took a number of necessary
    precautions.

[130]

Once again, this court overturned
    the trial judges decision on the basis that the doctor owed no duty of care to
    the future child.

[131]

As in
Bovingdon
, Feldman
    J.A., who also authored
Paxton
, reiterated that the question is not
    whether the claim should be characterized as one for wrongful life. Rather,
    the court should apply a normal tort analysis, including a proper duty of care
    analysis.

[132]

In determining that the claim did
    not fall within, and was not analogous to, a recognized duty of care, Feldman
    J.A. considered prior case law, including
Bovingdon
. Interestingly, Feldman J.A. specified that the duty
    of care question left open was where, as in the case now before us, it was
    alleged that the drug was contraindicated, albeit in the context of a
    teratogenic drug.
She noted in
Paxton
, at
    para. 52, the question left open in
Bovingdon
:

The court left open the question whether
    a doctor would owe a duty of care to a future child where the drug being
    prescribed to the female patient was contraindicated during pregnancy and would
    cause damage to a fetus .

[133]

Importantly, Feldman J.A. also
    confirmed in
Paxton
, at para. 53, that it is an open question in Canada
    whether a doctor can be in a proximate relationship to a future child who was
    not yet conceived at the time of the impugned conduct:

Having reviewed
    these authorities, I believe it is fair to say that
there is no settled jurisprudence
    in Canada on the question whether a doctor can be in a proximate relationship
    with a future child who was not yet conceived or born at the time of the
    doctors impugned conduct
. The Supreme Court of Canada has not had the
    opportunity to address the issue. The proposed duty of care thus does not fall
    within an established category of relationship giving rise to a duty of care.
[Emphasis added.]

[134]

Having concluded that the claim
    did not fit within an existing or analogous category, Feldman J.A. undertook a
    full
Anns/Cooper
analysis.

[135]

While Feldman J.A. concluded that
    the proximity requirement was not met in
Paxton
, I do not read her
    decision as resolving once and for all what
Bovingdon
left open.

[136]

In
Paxton
, Feldman J.A.
    explained at stage one of the
Anns/Cooper
analysis that policy
    considerations militated against a finding of proximity in the circumstances
    involved in that case.

[137]

First, Feldman J.A. came back to
    the concept of conflicting duties, which she said could have an undesirable
    chilling effect on doctors: the doctor could be put in an impossible conflict
    of interest between the best interests of the future child and the best
    interests of the patient in deciding whether to prescribe a teratogenic drug or
    to give the patient the opportunity to choose to take such a drug:
Paxton
,
    at para. 66. As I have already suggested, the situation may be different where
    a drug or other treatment is contraindicated, and so the question is not
    about informed choice but about whether the drug should have been offered in
    the first place.

[138]

Second, as another policy
    consideration, Feldman J.A. noted that a doctors relationship with a future
    child is necessarily indirect, as the doctor acts by providing advice and information
    to the mother. Again, whether this consideration would come into play where a
    drug is contraindicated is arguable. As I will explain below, the fact that
    the doctor acts by providing advice and direction to the mother does not
    necessarily preclude a proximate relationship between the doctor and the future
    child in circumstances involving contraindicated drugs.

[139]

Feldman J.A. also found that
    residual policy considerations at the second stage of the
Anns/Cooper
test made the imposition of the proposed duty unwise. In particular, she found
    that recognizing a duty of care by a doctor to a future child of a female
    patient would affect the doctors existing legal obligation to the patient.

[140]

I recognize and accept these real
    and important residual policy considerations that arise in a case like
Paxton
.
    However, they do not necessarily resolve the particular issues in this case. In
    my view, it remains an open question as to whether the same policy
    considerations necessarily apply in a situation where a drug is
    contraindicated and the potential for conflicting duties to the mother and
    future child is at least arguably foreclosed.

[141]

On my reading of
Paxton
, it
    does not determine that a physician could never owe a duty of care to a future
    child who was not yet conceived at the time of the impugned conduct. Concluding
    this section of my reasons, I would simply reinforce what I said about the
    impact of
Bovingdon
on this appeal. I am not saying that a doctor will
    owe that duty of care. I am saying that a trial is necessary to determine that
    question in this case because, in my view,
Paxton
has not only not
    resolved the issue, but it has explicitly left the issue open for future
    consideration.

(c)

The
Liebig
Decision

[142]

The respondent cites to para. 11
    of
Liebig
to argue that this court has determined that no duty of care
    is owed to a future child. I do not agree with this broad interpretation of
Liebig
.

[143]

For ease, I reproduce para. 11 of
Liebig
here:

Cases in the vein of
Bovingdon

and
Paxton
, which involve claims made by infants yet to be
    conceived at the time the alleged negligence occurred, have been characterized
    as and rejected by other courts as claims for wrongful life: see
Lacroix (Litigation guardian of) v. Dominique

(2001), 202 D.L.R. (4
th
) 121
(Man. C.A) leave to appeal denied
[2001]
    S.C.C.A. No. 477
;
McKay v. Essex Area
    Health Authority
, [1982] 1 Q.B. 1166 (Eng. C.A.). In
Bovingdon
and
Paxton
,
    however, this court held that the wrongful life approach ought not to be
    used. The court proceeded not by determining whether to recognize a claim for
    wrongful life, but by conducting an analysis of whether a doctor owed a
    separate duty of care to a future child.
Both Bovingdon and
    Paxton hold that there is no duty of care to a future child if the alleged
    negligence by a health care provider took place prior to conception
.
    [Emphasis added.]

[144]

My colleague agrees with that
    statement, and I do as well. That is precisely what
Bovingdon
and
Paxton
held
in those specific cases
.

[145]

In my view, the statement made in
Liebig
,
    at para. 11, must be read in light of the specific issue in
Liebig
.
Liebig
was a case about whether a child who was injured immediately before and during
    the delivery process could bring a claim against the medical professionals who
    allegedly acted negligently during that process. The trial judge held that the
    child could bring such a claim.

[146]

The hospital, the physicians, and
    the nurses in
Liebig
argued that
Bovingdon
and
Paxton
had
    changed the very long and well-established line of cases holding that an
    infant, once born alive, may sue for damages sustained as a result of the
    negligence of health care providers during labour and delivery.

[147]

In a brief judgment, a five-judge
    panel of this court rejected that argument and upheld the decision below. The
    child was permitted to proceed with the claim. I read para. 11 of
Liebig
as explaining why
Bovingdon
and
Paxton
changed nothing in
    relation to that already established duty of care to children who are born
    alive following negligent acts committed during the delivery process.

[148]

The reference at para. 11 of
Liebig
to the fact that
Bovingdon
and
Paxton
held that there is no duty of care to a future child if the alleged negligence
    by a health care provider took place prior to conception is an accurate
    summary of those cases. That is indeed what they decided in the context of the
    specific factual circumstances of those cases. That observation was sufficient
    to refute the suggestion in
Liebig
that somehow the result of
Bovingdon
and
Paxton
was to overturn the labour and delivery line of cases in
    which there clearly is a duty of care to the baby as well as to the mother.

[149]

In my view, what
Liebig
did
    not do, and actually could not do in a case that affirmed the duty of care owed
    by a doctor to the baby in the context of labour and delivery, was foreclose
    what
Bovingdon
, at para. 73, specifically acknowledges was left
    undecided and what
Paxton
specifically left open: whether a doctor
    can be in a proximate relationship with a future child who was not yet
    conceived or born at the time of the doctors impugned conduct:
Paxton
,
    at para. 53. In other words,
Liebig
should not be read as resolving what
Bovingdon
and
Paxton
purposely left open for future
    determination.

[150]

My understanding of the
Liebig
decision is reinforced by the passages that follow para. 11 of
Liebig
,
    including the courts caution, at para. 13, that both
Paxton
and
Bovingdon
have to be read in the light of their precise facts, the issues they
    addressed, and in a proper legal context. Further, the court gave the
    following caution, which is apposite to this case, at para. 19 of
Liebig
:

Cases may well arise that do not
    fit neatly under any of the established principles and, on occasion, the
    established principles may appear to be in conflict. This situation is
    characteristic of the common law, which does not provide a comprehensive,
    over-arching theory of liability that is capable of deciding every case or
    dealing with every possibility or contingency. Principles emerge, take shape
    and are reconciled on the basis of fact and context-specific judicial
    decisions, aided by scholarly commentary.
A common law
    court should be cautious about laying down principles or rules that are not
    required to decide the case before it and ordinarily should limit itself to the
    requirements of the case at hand
[.] [Emphasis added; citations
    omitted.]

[151]

This passage from
Liebig
captures my position in this case. While it may be that after a full trial, and
    a consideration of the facts and the context of this case, it will be
    determined that the respondent owed no duty of care to the appellants, the
    appellants should nevertheless be permitted to proceed to trial to have the
    matter determined on the facts and the context of this case.

D.

The Proximity Analysis

[152]

Before concluding, I will briefly
    respond to my colleagues comments on proximity.

[153]

My colleague accepts the motion
    judges
Anns/Cooper
analysis as correct. The motion judges reasons for
    concluding that there was not a proximate relationship between the respondent
    and the appellants include that a doctor cannot take instructions from or advise
    the future child. I do not accept the suggestion that the proximity between a
    physician and the future child is necessarily broken for that reason. If that
    were enough to break the relationship of proximity, then
Liebig
and
    cases like
Liebig
are wrongly decided as a physician cannot advise or
    seek instructions from a baby in the delivery process either: see
Liebig
,
    at paras. 6-7;
Crawford v. Penney
(2003), 14 C.C.L.T. (3d) 60 (Ont.
    S.C.), at para. 210, affd (2004), 26 C.C.L.T. (3d) 246 (Ont. C.A.), leave to
    appeal refused,
[2004] S.C.C.A. No. 496;
Commisso v. North York Branson Hospital
(2003), 168 O.A.C. 100 (C.A.), at paras. 21-23;
Winnipeg Child and Family Services (Northwest Area) v.
    G. (D.F.)
, [1997] 3 S.C.R. 925, at
    para. 21
.

[154]

The motion judge also pointed to
    the fact that imposing a duty of care could create a conflict of interest,
    putting the doctor in an impossible position because of competing duties owed.
    As I have discussed, such a concern may fall away if the drug is contraindicated,
    in the sense that it ought never have been prescribed to the future mother.

[155]

I would also note, not in an
    effort to resolve the proximity analysis but to demonstrate it is worth a
    closer look, that other common law jurisdictions have recognized a duty of care
    owed by a physician to the future child of the physicians patient. In
X and
    Y (By Her Tutor X) v. Pal
,
[1991]
    NSWCA 302, 23 N.S.W.L.R. 26
, an
    Australian case, physicians failed to diagnose the patients syphilis, which
    caused physical and developmental disabilities for her future child. The court
    found that the physicians owed a duty of care not only to the mother but to all
    those in the class of persons put at risk of harm by the negligent conduct of
    the physicians. This included the future child who was not conceived at the
    time of the initial negligent act. The mothers initial physician should have
    foreseen that the failure to exercise due care in respect of the mother could
    have led to harm to children later born to her:
X and Y
, at p. 42. As the
    court found, those potential children were within the category of persons to
    whom the doctor was in a relevant relationship of proximity:
X and Y
,
    at p. 44. See also Erin L. Nelson, Prenatal Harm and the Duty of Care (2016)
    53:4 Alta. L. Rev. 933, at p. 949.

E.

CONCLUSION

[156]

In conclusion, I do not read
Bovingdon
,
Paxton
, and
Liebig
as settling conclusively that there could
    never be any circumstances in which a physician owes a duty of care to a future
    child where the alleged negligence takes place prior to conception. As I have
    explained, I read those decisions as explicitly leaving the door open  even if
    just a crack  to the possibility that such a duty could exist.

[157]

I also do not accept the narrower
    proposition that, based on
Bovingdon
, it is settled law in Ontario that
    a physician could never owe a duty of care to future children when prescribing
    fertility drugs to the mother. I respectfully part ways with my colleagues
    view that whether a drug is indicated or contraindicated represents a
    factual distinction without a difference, one that cannot possibly inform a
    relationship of proximity between the respondent and the appellants. While I
    would not suggest at this stage that it is a distinction with a dispositive
    difference, I would say that the matter needs to be explored with the benefit
    of a full record at trial, including expert evidence to amplify upon the
    concept of contraindication.

[158]

Thus, on my reading of the relevant caselaw, it cannot
    be said that the claim of the appellants, who are all individuals in their own
    right, has no chance of success. Therefore, I would allow the appeal, set aside
    the dismissal of the claim on the r. 21 motion, and order that this matter
    proceed to trial.

Released: July 22, 2021





[1]

As minors, the Appellants claims are brought by their
    mother, in her role as their litigation guardian.



[2]

The Action was commenced by Notice of Action issued March
    25, 2011. It was originally brought against Dr. Benzaquen and Dr. Barrett. Dr.
    Barrett was the obstetrician who managed Ms. Florences pregnancy. On June 4,
    2018, the Action was dismissed, on consent, as against Dr. Barrett.



[3]

To the extent that the Appellants suggest that this court indicated,
    at para. 24 of
Haskett v.
    Equifax Canada Inc. et al.
,
224 D.L.R.
    (4th) 419
(Ont. C.A.), that something other than the two-stage
Anns

analysis must be applied to determine whether a duty of
    care will be recognized, I disagree. This court affirms, at para. 24 of
Haskett
, that the
    two-stage
Anns

analysis must be applied on a r. 21 motion to determine
    whether it is plain and obvious that no duty of care can be recognized. If it
    is not plain and obvious, then the action can proceed, and the issue will be
    determined at trial.



[4]
The motion judge relied on
Montreal
    Tramways Co. v. Léveillé
, [1933] S.C.R. 456, and
Liebig
.



[5]
See para. 9 above for t
he meaning the Appellants ascribe to
    this term.



[6]

Syl Apps Secure Treatment
    Centre v. B.D.
,
[2007] 3 S.C.R. 83;
Paxton
, at para. 33.



[7]

Like
    my colleague, for the purposes of this decision, I will use the term future
    child to refer to a child who is not yet conceived at the time of the alleged
    negligence but who is later born alive.



[8]
I
    pause here to note that these allegations sit somewhat uneasily together, the
    first resting on an implicit suggestion that prescribing Serophene was an
available option
in the circumstances,
    and the second resting on the explicit suggestion that Serophene should
never have been an available
option in
    the first place.


