Judge certifies class action lawsuit against B.C. health authority that hired fake nurse

A judge has certified a class action lawsuit against the Provincial Health Services Authority over its year-long employment of fake nurse Brigitte Cleroux at B.C. Women's Hospital.

On Tuesday, B.C. Supreme Court Justice Michael Stephens ruled that a claim holding the health authority vicariously liable for violations of privacy by Cleroux and seeking punitive damages can proceed as a class action.

He noted that more than 1,000 people will be covered by the lawsuit, and a large number of them would not have the money to pursue individual claims on these grounds.

"I conclude that certifying this class action will likely overcome barriers to litigation for the majority of class members by providing them a procedure to advance claims for breach of privacy and vicarious liability," Stephens wrote in his judgment.

But he declined to certify claims of negligence and battery, saying that individual patients' experiences with Cleroux were too different to be lumped into a class action and would be better handled through separate lawsuits.

"Each of the class members likely had different experiences with Ms. Cleroux, given the variety of her nursing tasks," Stephens wrote.

"It is possible, on the evidence before me, that there would be significant variety in the extent to which any of the class members may have been physically or emotionally harmed by the care received from Ms. Cleroux." 

A Provincial Health Services Authority (PHSA) declined to comment while the case is before the courts.

A class action lawsuit is a type of legal action that groups together people who share a common claim against someone. The judge's decision to certify the claim does not mean that the court has ruled on whether the patients have proven their allegations against the PHSA, only that it can proceed under the terms of the Class Proceedings Act.

Allegations of 'wilful invasion of privacy'

Cleroux, a serial imposter with a long criminal history of pretending to be a nurse in jurisdictions across North America, assisted with surgeries at B.C. Women's Hospital between June 2020 and June 2021.

According to court documents filed by the PHSA, Cleroux directly cared for 899 patients at the hospital and was indirectly involved in the treatment of another 258 by reviewing their files.

Stephens wrote that the question of whether Cleroux's participation in gynecological surgeries amounted to a "wilful invasion of privacy" is something all of the patients share, and there is enough evidence to test those claims in court. 

If the patients are able to prove the health authority is vicariously liable for privacy breaches, the judge went on, there is a valid question about whether PHSA's actions giving Cleroux access to vulnerable patients "was sufficiently reprehensible or highhanded to attract a punitive damages award."

During her time at B.C. Women's Hospital, Cleroux used the name of a real nurse, Melanie Smith. But when she was hired, she told administrators she didn't have a registration number with the B.C. College of Nurses and Midwives yet because she had recently transferred from Ontario. 

Miranda Massie, the representative plaintiff in the class action lawsuit, has alleged in court documents that the PHSA "accepted a photocopy of a personal cheque from Cleroux where she had whited out her name at the top of the cheque and handwritten the name, Melanie Smith, as confirmation of Cleroux's identity as Melanie Smith."

The PHSA says it has since changed its practices to confirm both the name and the licence number of every nurse it hires.

Other PHSA court filings have revealed that Cleroux was written up for "inappropriate" and disrespectful conduct toward a colleague just two weeks into her job at B.C. Women's and was later suspended for a day in response to a long list of complaints. But despite all this, she was allowed to work at the hospital for another six months after the suspension.

The health authority has denied that it should have known Cleroux wasn't a qualified nurse or that her deception should have been discovered with due diligence. Its court filings claim PHSA was also a victim of fraud and did not authorize any of Cleroux's alleged crimes and misconduct.

Cleroux has never had a valid licence or completed nursing school, but over the last two decades, she has been accused or convicted of pretending to be a nurse in Colorado, Ontario, Alberta and B.C. She's also posed as a teacher in Alberta and Quebec. In all, Cleroux has amassed at least 67 criminal convictions as an adult.

In Vancouver, she is currently facing 17 criminal charges, including allegations of assaulting 10 patients, related to her time at B.C. Women's. She has also been charged with impersonation and fraud against a dental surgeon in Surrey.

Cleroux currently sits in an Ontario prison, serving a seven-year sentence for posing as a nurse at two Ottawa clinics in the summer of 2021.

Apart from the class action, 10 people have now filed individual lawsuits against the PHSA, Cleroux and the B.C. College of Nurses and Midwives, Stephens wrote in this week's judgment.