Court of Appeal for Ontario

Date: November 3, 2017

Docket: C63132 and C63619

Judges: Blair, Juriansz and Miller JJ.A.

Parties

Between

Anne Levac Plaintiff (Respondent)

and

Stephen Rose James, Nurse Doe, Sue-Ellen Solger, Izabella Gerbec, Erin Kostuch, Anita Takyi-Prah, Joana Nunes, Elizabeth Hicken, Marissa Allin, Rachel Schrijver, Annie Michaud, Anna Nudel, Elena Polyakova, Raymund Tanalgo, Jefferd Felix, Jason Foster, Paolo Galvez, Glenn Francesco, Peter Rothbart and Rothbart Centre for Pain Care Ltd.

Defendant (Appellant)

Counsel

Darryl A. Cruz and Erica J. Baron, for the appellant

Paul Harte and Maria Damiano, for the respondent

Heard

April 24, 2017

Appeal

On appeal from the judgment of Justice Paul M. Perell of the Superior Court of Justice, dated December 9, 2016 with reasons reported at 2016 ONSC 7727.

Reasons for Decision

B.W. Miller J.A.:

A. OVERVIEW

1A Toronto pain management clinic experienced a bacterial infection outbreak. Several patients became infected, including the respondent, Anne Levac, who fell severely ill after receiving epidural injections for pain management. The appellant, Dr. Stephen James, an anaesthesiologist at the clinic, administered the epidural injections to Ms. Levac and other patients. Subsequent laboratory testing disclosed that Dr. James was colonized with the same strain of bacteria as six of the infected patients, including Ms. Levac.

2Ms. Levac commenced an action against Dr. James, the clinic, the clinic nurses, and the clinic medical director. She alleged that Dr. James caused the outbreak by negligently implementing a substandard infection prevention and control practice.

3Ms. Levac brought a motion seeking certification of a class action and a motion for partial summary judgment against Dr. James. Both motions were argued one after the other on the same day and the motion judge issued one set of reasons and one order disposing of both. The motion judge certified the class proceeding against all defendants and granted summary judgment against Dr. James, finding that he had breached his duty of care to members of the class, that specific causation had been established for those class members infected with the same strain of bacteria found on Dr. James, and general causation for the remainder of the class.

4Dr. James appeals on two main bases. First, that the motion judge compromised procedural fairness when he certified and granted summary judgment on a formulation of the common issue that was different from the formulation that he had approved in an oral ruling when hearing the certification motion, immediately prior to hearing the summary judgment motion. Second, that the motion judge erred in finding that Dr. James breached his duty of care.

5I would allow the appeal on the basis of the first issue. It is therefore unnecessary for me to address the second issue.

B. BACKGROUND

6Toronto Public Health ("TPH") identified three cases of meningitis connected to the Rothbart Centre for Pain Care Ltd. (the "Clinic"). Consequently, TPH audited the Clinic's infection prevention and control ("IPAC") practices.

7Healthcare practitioners develop IPAC practices to reduce the risk of infections. It is part of the professional responsibility of physicians to ensure that their IPAC practice is appropriate for any procedure that they undertake. Dr. James' IPAC practice for administering epidural injections consisted of a 26-step procedure.

8Through the audit, TPH investigators identified nine patients with serious infections requiring hospitalization who had received epidural injections performed by Dr. James at the Clinic between August 20 and November 25, 2012. Eight of the nine infected patients tested positive for staphylococcus aureus, a pathogen that can cause life-threatening diseases. Six of the eight patients were found to have been infected with the same strain of staphylococcus aureus. Dr. James also tested positive for this strain. Seventeen other Clinic staff members were tested, and while five tested positive for staphylococcus aureus, none of these infections matched the outbreak strain.

9After Dr. James was informed that he was colonized with staphylococcus aureus, he stopped working and undertook decolonization treatment. He returned to work after testing confirmed that he was fully decolonized. He had been unaware of his infection, and did not know how it occurred or how long he had been colonized.

10TPH prepared a summary of its investigation (the "Public Health Report") which concluded there were multiple deficiencies in IPAC practice at the Clinic. The motion judge summarized the Public Health Report's key findings as follows: (1) Dr. James' hand hygiene was not consistently or properly performed; (2) his alcohol-based hand rub routine lasted less than five seconds; (3) he touched surfaces after hand sanitizing but before wearing sterile gloves; (4) he used gloves that were too large for his hands; (5) he did not remove his wedding ring before procedures; (6) he applied his mask without performing hand hygiene; (7) he did not pinch the nose piece on his mask; (8) he did not wait for skin preparation to dry before inserting the needle into the epidural space; and (9) the sterile field used in his procedures was not appropriately covered or kept sterile.

11The Public Health Report concluded that as a result of poor IPAC practice, staphylococcus aureus was transmitted from Dr. James to his patients.

C. The Proceedings Below

12Ms. Levac brought a negligence action against the clinic, Dr. James, and other clinic staff (the "Defendants"). In the proceedings below, she sought certification of the action as a class action. She also moved for partial summary judgment against Dr. James for breach of his duty of care.

The Positions of the Parties

13Although none of the defendants opposed certification of the action, Dr. James and Ms. Levac disagreed as to the wording and scope of the common issues regarding breach of the duty of care. At the hearing of the certification motion, the motion judge considered the formulations suggested by each of them, and proposed a third formulation which was mutually acceptable to the parties. The summary trial then proceeded on the basis of the third formulation.

14Both parties tendered expert evidence in support of their positions on the summary judgment motion. It should be noted that the TPH investigators who authored the Public Health Report did not provide affidavit evidence on the motion. The Public Health Report was appended as an exhibit to the affidavit of one of Ms. Levac's experts.

15Ms. Levac's experts provided evidence indicating that the infection rate of the class members was significantly higher than would be expected, and that the high rate of infection could only be explained by a failure to use IPAC practice in accordance with the recognized standard of care.

16The evidence from Dr. James' experts was that his IPAC Practice was appropriate and consistent with the standard of care for physicians performing epidural injections.

The Motion Judge's Decision

17The motion judge certified the action as a class action, and granted partial summary judgment.

18In his analysis of certification, the motion judge discarded the formulation of the breach of care common issue that he had certified at the certification hearing. Instead, he certified a fourth formulation, again of his own devising, but which the parties had no opportunity to consider. The motion judge assessed the merits of the summary judgment motion on the basis of the fourth formulation.

19The motion judge granted summary judgment for Ms. Levac and the class members, finding that circumstantial evidence allowed him to conclude on a balance of probabilities that Dr. James breached his duty of care with respect to his IPAC practice.

20The motion judge reasoned that the action was appropriate for summary judgment as the patients developed infections and neither party had any direct evidence about the acts or omissions that could explain why. Dr. James relied on evidence of his routine practice, and Ms. Levac had not been able to observe the injections. The motion judge concluded that the evidence adduced by Ms. Levac was sufficient to establish that Dr. James had breached his duty of care. That issue, therefore, did not need to be resolved at a trial.

21The motion judge found that for those class members infected with the same strain of bacteria found on Dr. James, both general causation and specific causation were made out and they could proceed to quantify their damages. Other class members would need to prove specific causation and quantification of damages at individual issues trials.

D. ANALYSIS

22Dr. James appeals on two main bases.

23First, he argues that he was denied procedural fairness when the motion judge reformulated the common issue certified at the hearing, and then certified and granted summary judgment on it, without providing the parties with notice or an opportunity to make submissions. The parties argued the summary judgment motion on the basis of the third iteration of the common issue, which the motion judge certified at the hearing.

24Second, Dr. James argues that the motion judge erred in finding a breach of the duty of care, in the absence of any specific evidence on that issue from Ms. Levac. He argues that the motion judge's analysis suffers from several flaws, including reliance on the summary of the Public Health Report, which was hearsay and inadmissible.

25I agree with Dr. James that there was a procedural unfairness and for that reason, the appeal must be allowed and the matter sent back for a new certification motion. To provide full context for this conclusion, I will set out a procedural history of the certification of the common issue, before explaining why Dr. James was denied procedural fairness. Given that I would resolve the appeal on the basis of procedural fairness, it is unnecessary to address the further ground of appeal relating to the granting of summary judgment, since it will have to be argued afresh based upon the common issue as ultimately framed.

The Procedural History of the Common Issue

26The common issue regarding breach of the standard of care initially proposed by Ms. Levac ("Q1") was "whether the Defendants breached the standard of care for infection control practices."

27Dr. James objected to Q1 because it did not require a finding of how the standard of care had been breached. He also expressed concern that the question was worded too broadly, captured issues that would be better addressed in individual trials, and would result in an unworkable litigation procedure. He proposed an alternative ("Q2"):

(1) What is the scope of the duty of care owed by the Defendants in relation to infection prevention and control across the entire population of Class Members?; and

(2) Whether any of the Defendants' invariable practices breached the standard of care in relation to infection prevention and control and if so, in what way or ways.

28The motion judge, after hearing submissions from both parties, proposed a third formulation ("Q3"):

(1) whether the defendants breached the standard of care required for infection prevention and control practices?; and

(2) in what ways, if any, did the Defendants' routine invariable IPAC practices breach the standard of care for infection control practices?

29The parties agreed to this formulation. The motion judge made an oral ruling certifying Q3 as the statement of common issues regarding breach of the duty of care. The parties then made submissions on the summary judgment motion.

30When the motion judge released his reasons on the summary judgment motion, Dr. James was surprised to find that the motion judge had replaced Q3 with a new Q4:

(1) Did any defendant breach his, her, or its duty of care with respect to the design and/or performance of the Defendants' invariable IPAC Practice?

31Dr. James objects to Q4 for two substantive reasons. First, he argues that questions of performance of the IPAC practices are not truly common issues and therefore not suitable for resolution on a class-wide basis.

32Second, Dr. James objects to the removal of the requirement to specify "in what ways" the IPAC practices breached the standard of care. He submits that Q4 requires only that the trier of fact affirm or deny that a duty of care was breached. This creates additional problems, he argues, in determining whether there is a causal connection between the breach and the injuries alleged across the class.

33Dr. James, however, does not only object to the scope of the certified common issue. He also argues that the procedure followed by the motion judge – specifically, (1) certifying a question devised by the motion judge himself, (2) without the benefit of submissions from counsel on the proposed formulation, and (3) after the conclusion of the hearing of the summary judgment motion that proceeded under a different certified common issue – was procedurally unfair.

34In oral argument, Dr. James stated that he would have contested the certification of the class action had he been presented with Q4 as the common issue, and argued the summary judgment motion differently.

35The respondent advances three submissions to address Dr. James' claim that he was denied procedural fairness. None of them provide a satisfactory response.

36First, the respondent submits that a certification judge has discretion in formulating the wording of common issues and is not confined to wording proposed by the parties. The scope of this discretion, the respondent argues, must be assessed in light of the broader purposes of the Class Proceedings Act, which include promoting access to justice and fostering efficient use of judicial resources.

37This submission, without more, does not answer whether the appellant was deprived of procedural fairness. I agree that a certification judge may, in some circumstances, depart from the wording of a common issue that the parties have agreed upon and proposed. The requirements of procedural fairness, however, impose limits on when and how that discretion may be exercised.

38The relevant question, therefore, is not whether the motion judge had discretion to reformulate the common issue, but whether that discretion was appropriately exercised in this case.

39The respondent's second submission engages more directly with that central question. In the respondent's view, the change between Q3 and Q4 was insignificant, a distinction without a difference that if anything narrowed the issues faced by Dr. James. Any procedural irregularity, therefore, caused Dr. James no prejudice. The respondent distinguishes 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2016 ONCA 24, 344 O.A.C. 222, leave to appeal refused, [2016] S.C.C.A. No. 105, where the motion judge injected a new theory of liability into the recast common issue, causing prejudice to the defendant.

40I disagree with this submission, for two reasons.

41First, it is instructive that the motion judge did not view his change to the question as a "distinction without a difference". On the contrary, he clearly understood the new wording as capturing "permutations of the duty of care issue" absent from the three previous formulations advanced at the motion hearing. In his view, the new wording better captured the "distinction between negligent performance and negligent design of the IPAC Practice". Whether it actually did so, without introducing issues not amenable to resolution on a class-wide basis or raising other concerns, was a question the parties ought to have been able to address through submissions to the motion judge.

42Second, the degree of difference between Q3 and Q4 is not the only consideration relevant to assessing procedural fairness. In this case, the following factors provide additional support for Dr. James' position:

(1) the conduct of the proceedings: Dr. James reasonably expected that the motion judge would adhere to Q3 in his reasons for decision;

(2) the importance of the common issue to the resolution of the action as a whole; and

(3) the lack of any steps by the motion judge to address potential prejudice to Dr. James.

43It is also significant that Dr. James may well have contested certification of the class proceeding had he known the certified common issue would be Q4. He was therefore deprived of the opportunity to contest not only Q4, but certification of a proceeding premised on Q4.

44The respondent's third objection is that the procedural fairness objection is moot: that any unfairness from lack of notice of the common issues was cured by the appeal process. On appeal, the argument goes, Dr. James had been made aware that Q4 was the common issue. He could therefore argue the appeal from summary judgment on that basis, and advance any objections to the wording of Q4 that he was unable to provide to the motion judge.

45This argument is unsatisfactory. To put it simply, an appeal is not a trial de novo. The opportunity to argue an appeal with knowledge of the certified common issue does not cure the unfairness of arguing a summary judgment motion under a misapprehension about the common issue in question. Neither does the ability to contest the certified common issue on appeal provide an adequate remedy for the lack of opportunity to convince the motion judge against certifying that issue at first instance. It is crucial that litigants receive a fair process when they initially argue a certification motion, particularly because a certification judge's substantive conclusions are not easily set aside on appeal: Cassano v. The Toronto Dominion Bank, 2007 ONCA 781, 87 O.R. (3d) 401, at para. 23.

46Accordingly, I conclude that Dr. James was deprived of procedural fairness in the proceedings below. He is entitled to a new hearing on certification and on summary judgment.

E. DISPOSITION

47I would allow the appeal, set aside the order for summary judgment and the order certifying the class action, and order a new hearing of the motion for certification and summary judgment before a different judge.