Breast Cancer Testing

Settled Class Action


Klein Lawyers, together with co-counsel Ches Crosbie Barristers has filed a class action on behalf of women who had breast cancer testing performed by the lab at the General Hospital in the Health sciences Centre in St. John’s Newfoundland from January 1, 1997 to October 1, 2005. The hospital is operated by Newfoundland’s Eastern Regional Integrated Health Authority. The lab tested breast tumour biopsies from throughout the province.

The testing included what are referred to as ER (estrogen) and PR (progesterone) receptor tests. These tests determine whether the tumour is of the type that grows in response to hormones such as estrogen or progesterone. A positive test result means that the cancer may respond to therapies which block the action of hormones on tumour cells, such as the drug Tamoxifen. A negative test result would indicate other therapies such as chemotherapy.

Due to a lack of quality control at the lab, a substantial number of women received test results that were false positives or false negatives. These false test results meant that hundreds of women received inappropriate therapy for their breast cancer.

On May 28, 2007, Justice Thompson of the Supreme Court of Newfoundland and Labrador certified the lawsuit as a class proceeding with the following class definition:

  1. Patients, including their estates, who underwent ER (estrogen) and PR (progesterone) receptor tests in which their breast tissue samples were tested at the Defendant’s hospital during the Class Period; and
  2. Persons who have a claim for loss of consortium and loss of guidance, care and companionship on account of a relationship with a person in paragraph (a).

The Class is restricted to residents of Newfoundland and Labrador.

The “Class Period” is defined as: May 1, 1997 to August 8, 2005, or such other dates as may be approved by the court.”

The province of Newfoundland & Labrador has also launched a public inquiry into the matter.

For more information:

Doug Lennox


Court Documents
July 7, 2006
Skill, Diligence, and Experience of Counsel

“The negotiations were conducted by plaintiffs’ counsel with experience in class proceedings.”

Sawatzky v. Société Chirurgicale Instrumentarium Inc., 1999 CanLII 6982 at para. 11

“I am satisfied it is apparent from the material, which is complicated, and, I might say very well organized...”

Fischer v. Delgratia Mining Corp, [1999] B.C.J. No. 3149 at para. 23

“Plaintiff’s counsel are senior members of the bar who have extensive experience in personal injury litigation and class actions..”

Knudsen (Guardian of) v. Consolidated Food Brands Inc., 2001 BCSC 1837 at para. 40

“Mr. Klein is experienced and able in relation to class proceedings. Over time he has acquired expertise that permits him to make a valuable contribution...”

Killough v. Canadian Red Cross Society, 2001 BCSC 1745 at para. 28

“The lead class counsel is experienced and has been recognized by the courts in approving settlements in other class actions.”

Fakhri v. Alfalfa’s Canada Inc., 2005 BCSC 1123 at para. 23

“Counsel for the plaintiffs in the various jurisdictions appear to be experienced in class proceedings, and to be recognized as skilled litigators.”

Jeffrey v. Nortel Networks Corp., 2007 BCSC 69 at para. 29

“…Plaintiff’s counsel retained the British Columbia law firm of Klein Lawyers to assist in the litigation. That firm has extensive experience...”

Rideout v. Health Labrador Corp, 2007 NLTD 150 at para. 156

“Klein Lawyers is a litigation firm focusing on class actions. The firm is based in Vancouver but also has a Toronto office.”

McSherry v. Zimmer GMBH, 2012 ONSC 4113 at para. 21

“The proposed Class Counsel have excellent qualifications…”

Parker v. Pfizer Canada Inc., 2012 ONSC 3681 at para. 130

“Mr. Klein of Klein Lawyers has over 20 years of experience in the field of class action litigation and has appeared as plaintiffs’ counsel in over 25 certified class actions...”

Stanway v. Wyeth Canada Inc., 2015 BCSC 983 at para. 39

“Class counsel, Klein Lawyers LLP and Kim Orr Barristers P.C., are highly experienced in class action litigation. Both firms have practiced in the specialized area of class action litigation for over 20 years”

Merlo v. R, 2017 FC 533 at para. 34

“British Columbia class counsel took on this case on a contingency basis, and faced a real risk of not being paid at all for their services.”

Jeffrey v. Nortel Networks Corp, 2007 BCSC 69 at para. 73

“Class counsel pursued this litigation to completion on their own rather than with a consortium of counsel from various provinces.”

Merlo v. R, 2017 FC 533 at para. 84

“Klein Lawyers has continuously posted updates about the case on its website during the litigation, and has posted the court decisions...”

Richard v. British Columbia, [2010] B.C.J. No. 1363 at para. 20

“There is little doubt that the lawyers of the firm expended a great deal of time in prosecuting the action, in negotiating a settlement...”

McSherry v. Zimmer GMBH, 2016 ONSC 4606 at para. 38

“…Class counsel undertook an extensive communication plan to advise potential class members of the proposed settlement and to advise them of the...”

Merlo v. R, 2017 FC 533 at para. 12
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