Levac v. James, 2016 ONSC 7727

CITATION: Levac v. James, 2016 ONSC 7727

COURT FILE NO.: CV-14-511333-00CP

DATE: 20161209

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

ANNE LEVAC

Plaintiff

– 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.

Defendants

Paul Harte and Maria Damiano for the Plaintiff

Darryl Cruz and Eric Pellegrino for the Defendant, Stephen Rose James

Proceeding under the Class Proceedings Act, 1992

HEARD: October 26-27, 2016

PERELL, J.

REASONS FOR DECISION

A. INTRODUCTION

[1] The motions now before the court raise difficult issues about the manner of proof of a breach of the standard of care in a medical malpractice action in the context of a class proceeding by a group of patients against a doctor, nurses, and the pain clinic at which they received inoculations.

[2] Pursuant to the Class Proceedings Act, 1992, S.O. 1992, c. 6, the Plaintiff, Anne Levac, seeks certification of her action against the Defendants Stephen Rose James, 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. (the “Clinic”).

[3] The action arises from an infectious disease outbreak at the Clinic, where Dr. Stephen James, an anesthesiologist, administered epidural injections that were infected by bacteria. The outbreak was discovered in late November 2012, and Toronto Public Health (“TPH”) investigated the outbreak. Ms. Levac alleges that Dr. James, who was personally colonized with the bacteria, is responsible for the outbreak and was negligent because he implemented a substandard infection prevention and control practice (“IPAC Practice”). The other Defendants are the Clinic, the nurses at the Clinic, and Dr. Rothbart, who is the medical director of the Clinic.

[4] In addition to certification, which was unopposed by all the Defendants - save for a contest between Ms. Levac and Dr. James about the wording of the common issues - Ms. Levac seeks a partial summary judgment against Dr. James for breach of his duty of care.

[5] Dr. James submits that the summary judgment motion should be dismissed because there are genuine issues requiring a trial.

[6] For the reasons that follow, I certify the action as a class proceeding, and I grant a partial summary judgment against Dr. James. I find that he breached his duty of care to the Class Members.

[7] As I shall explain below, this finding of negligence entails: (a) a finding of causation for those Class Members who were infected with the same bacteria as Dr. James; and (b) a finding of general causation for the balance of the Class Members. The result is that to perfect their claims, the Class Members of the first group must quantify their damages and the Class Members of the second group must prove specific causation and the quantification of their damages.

B. EVIDENTIARY BACKGROUND

[8] Ms. Levac supported her motion for certification and her summary judgment motion with the following evidence:

• Her affidavit sworn May 11, 2016.

• Affidavit of Dr. Allison McGeer sworn May 17, 2016. Dr. McGeer is a microbiologist and infectious diseases consultant. She was not cross-examined.

• Affidavit of Giuseppe Michelucci sworn May 11, 2016. Mr. Michelucci is a lawyer with the law firm Harte Law Professional Corporation, Ms. Levac’s lawyers and proposed Class Counsel. He was not cross-examined.

• Affidavit of Dr. Catherine E. Smyth sworn August 29, 2016. Dr. Smyth is an anesthesiologist and pain specialist. She was not cross-examined.

• Business records notice pursuant to the Evidence Act, R.S.O. 1990, c. E.23, s. 35(2).

[9] Dr. James responded with the following evidence:

• His affidavit sworn October 3, 2016. He was cross-examined.

• Affidavit of Dr. Neil Vivek Rau sworn October 6, 2016. Dr. Rau is a medical microbiologist and infectious diseases specialist. He was cross-examined.

• Affidavit of Dr. Joseph Richard Doran sworn October 12, 2016. Dr. Doran is an anesthesiologist and pain specialist. He was cross-examined.

[10] The qualification of the expert witnesses to testify was not challenged.

[11] Dr. McGeer works at the University Health Network with research interests including infection prevention in healthcare facilities and the epidemiology of infectious diseases. She is a Professor in the Department of Laboratory Medicine and Pathology at the Dalla Lana School of Public Health in the Faculty of Medicine at the University of Toronto. She has published more than 360 papers in peer-reviewed journals. Since 1990, she has been the Director of the Division of Infection Control at Mount Sinai Hospital in Toronto, where she is also a staff microbiologist. She is a consultant at the Toronto Rehabilitation Institute and at the Baycrest Centre for Geriatric Care. She was formerly the Infection Control Officer at Peel Memorial Hospital (1994-2000) and Princess Margaret Hospital (1990-1998). Since 2004, Dr. McGeer has sat on the infection control subcommittee of the Ontario Provincial Infectious Diseases Advisory Committee, which advises Public Health Ontario on the prevention and control of healthcare-associated infections. She has drafted numerous best practice and evidence-based position papers for the Advisory Committee. She was a contributor to the College of Physicians and Surgeons of Ontario best practices publication, Infection Control in the Physician's Office (2004 Edition). She has developed IPAC Practices, including practices for the administering of epidural injections.

[12] Dr. Smyth obtained a PhD. in Physiology and Biophysics from Dalhousie University in 1995. In 1996, she obtained her M.D. from McMaster University. She is a Fellow of the Royal College of Physicians and Surgeons of Canada with a Specialist Certificate (2001) in Anesthesiology. In 2013, she was granted “Founder Status” by the Royal College of Physicians and Surgeons of Canada in recognition of her contributions to the creation of Pain Medicine as a recognized subspecialty in Canada. She is an Associate Professor in the Department of Anesthesiology at the University of Ottawa, and from 2013 to 2016, she was the Pain Medicine Program Director of the Department of Anesthesiology at that university. From 2006 to 2011, she was the Medical Director at the Ottawa Hospital Pain Clinic, where she was also on staff as an anesthesiologist and pain management specialist. She is also a Medical Inspector appointed by the College of Physicians and Surgeons of Ontario to evaluate the practices of physicians who work at pain clinics.

[13] Dr. Rau obtained his M.D. at the University of Toronto in 1991 and is a member of the College of Physicians and Surgeons of Ontario. He is an Assistant Professor, Department of Medicine in the Division of Infectious Diseases at the University of Toronto. He is a certified specialist in Internal Medicine and also in Medical Microbiology with a subspecialty in Infectious Diseases, having obtained a Royal College Certificate of Special Competence in Infectious Diseases in 1996, after which he practiced as a community-hospital based infectious diseases specialist. He has practiced as a Medical Microbiologist and been the Medical Director of the Infection Prevention and Control Service for Halton Healthcare. He was the Medical Coordinator of the Mississauga-Halton Regional Infection Control Network (a branch of Public Health Ontario) from April 2008 to April 2012. He served as Infectious Diseases Section Chair for AMMI Canada (Association of Medical Microbiology and Infectious Disease Canada), and served as an examiner for the Royal College of Physicians and Surgeons of Canada. In his clinical practice, Dr. Rau has managed the care of patients with both meningitis and epidural abscesses resulting from staphylococcus aureus.

[14] Dr. Doran obtained his M.D. from the University of Ottawa in 1983 and is a member of the College of Physicians and Surgeons of Ontario. He is a fellow of the Royal College of Physicians and Surgeons of Canada with a specialist certification in Anesthesiology. Since 1989, he has been a staff anesthesiologist at Lakeridge Health Oshawa with a teaching affiliationat Queen's University. At Lakeridge, he has been Corporate Chief of Anesthesia (2000-2007), as well as the Medical Director of the Pain Management Clinic (1990-2015). At present, he is the Medical Director of the Pain Management Clinic at the Taunton Surgical Centre in Oshawa. He has been an assessor for the College of Physicians and Surgeons of Ontario for both chronic pain and anesthesia in the Quality Assurance (peer assessment) program. He is a member of the Canadian Anesthesiologists Society, American Society of Anesthesiology, the International Anesthesia Research Society and The American Society of Regional Anesthesia and Pain Medicine.

C. FACTUAL BACKGROUND

1. Infection Prevention and Infection Prevention and Control Practice (“IPAC Practice”)

[15] Staphlococcus aureus is a common pathogen that is part of human flora. It is found primarily in the nose and on the skin. It is highly prevalent and is carried by 20 to 40 percent of the population. It can cause life-threatening diseases.

[16] Because of the risk of infections from pathogens like staphlococcus aureus, healthcare practitioners develop IPAC Practices. It is the treating physician’s responsibility to ensure that his or her IPAC Practice is adequate for any procedure that they are undertaking.

[17] Epidural injections are an invasive medical procedure with a well-known risk of infection and IPAC Practices have been developed to reduce the risk.

[18] Hand hygiene is the most important part of an IPAC Practice because contaminated hands are a common way of transmission of infection. With respect to IPAC Practices, Dr. McGeer testified that a healthcare practitioner’s hands should be rubbed with a sanitizer for a minimum of 15 seconds. She testified that the physician should remove any jewelry and wear properly fitted gloves and a mask. She testified that a sterile field is necessary for an epidural injection and that the antiseptic solution for skin preparation must be allowed to dry before commencing a procedure to ensure maximum benefit. Dr. Smyth agreed with the evidence of Dr. McGeer about IPAC Practice.

2. Dr. Stephen James and his IPAC Practice

[19] Dr. James is an anesthesiologist practicing pain medicine. He is certified by the American Board of Anesthesiology in the two specialties of Anesthesiology and Pain Medicine. Before coming to Ontario, he practiced at the Detroit Medical Center, which is affiliated with Wayne State University, where he was an Assistant Professor and an Associate Director for the Pain Medicine Fellowship. He also was the Assistant Director of the Cancer Pain Clinic at the Karmanaos Cancer Center in Detroit.

[20] In late 2009, Dr. James moved to Ontario, and he was certified to practice Anesthesiology by the College of Physicians and Surgeons of Ontario. During the proposed class period, January 1, 2010 to November 20, 2012, Dr. James practised pain medicine at the Clinic. The Clinic is a pain management medical facility in Toronto, Ontario.

[21] At the Clinic, Dr. James had a procedure room exclusively assigned to him where he performed most of his procedures, including the epidural injections.

[22] Dr. James admits or concedes that he had a responsibility to ensure that reasonable steps were taken to avoid iatrogenic infection; i.e., an illness caused by or through a medical treatment.

[23] Dr. James invariably and sequentially performed the following IPAC Practice:

a. The patient was directed to the procedure room.

b. The patient was assessed and then the nursing service was requested to provide nursing assistance.

c. The nurse would enter the procedure room wearing non-sterile gloves or would don non-sterile gloves upon entering the room.

d. Dr. James would put on an earloop face mask and pinch the bridge of the mask onto his nose.

e. Dr. James would open a package of sterile gloves in the size available in the procedure room that best fit his hands. He would place the package on the tabletop/counter surface with the sterile side facing up to create a sterile field.

f. Dr. James would pump a single application of alcohol-based hand rub onto his hands from one of the dispensers and would perform hand hygiene.

g. Once his hands had dried, Dr. James would don the sterile gloves. He would leave his wedding band on under his left sterile glove.

h. The nurse would open the procedure kit and deposit the contents onto the sterile field.

i. The nurse would prep the patient’s skin with pre-packaged Betadine swabs, applied in eccentric circles.

j. Depending on the design of the procedure kit, Dr. James would either extract a fenestrated drape or, if one was not provided, a nurse would open an individually packaged fenestrated drape using sterile technique, which Dr. James would then extract from the package.

k. Dr. James would place the fenestrated drape onto the patient’s back. If the adhesive on the drape did not securely affix it at the patient’s shoulders, the nurse would attempt to secure the drape using plastic tape.

l. Depending on the design of the procedure kit, Dr. James would either retrieve the syringes that had been deposited onto the sterile field or, if they were not included in the procedure kit, a nurse would open individually packaged syringes using sterile technique and then deposit them onto the sterile field.

m. The nurse would hold the vials of medication for the procedure from which Dr. James would draw the medication into sterile syringes and then place each syringe back onto the sterile field.

n. Dr. James would perform the epidural injection.

o. Dr. James would dispose of the fenestrated drape in a biohazard bin.

p. If necessary to ensure that the patient’s clothes were not stained, the nurse would cleanse any excess Betadine from the patient’s back using gauze moistened with saline.

q. If necessary, the nurse would affix dry gauze to the injection site with plastic tape as a dressing.

r. Dr. James would dispose of the needle-syringe units in a ‘sharps container’.

s. Dr. James would dispose of the contents of the procedure kit in a biohazard bin.

t. Dr. James would remove his sterile gloves and dispose of them in a biohazard bin.

u. Dr. James would remove his mask and disposed of it in a biohazard bin.

v. Dr. James would pump a single application of alcohol-based hand rub and perform hand hygiene.

w. Dr. James would complete the patient’s medical chart.

x. The patient either would be ambulated or transported by stretcher to the Clinic’s recovery room. Dr. James would accompany the patient.

y. If the patient was transported to the recovery room by stretcher, a new stretcher would be brought into the procedure room for the next patient.

z. Dr. James would return to the procedure room and call for his next patient.

[24] In addition to following the standardized IPAC Practice, Dr. James would routinely perform hand hygiene with soap and water or alcohol-based hand rub throughout the day.

[25] Dr. James did not testify about precisely how he would routinely perform hand hygiene.

3. Anne Levac

[26] Ms. Levac was referred to the Clinic in June 2012 for the management of her chronic low back and right leg pain. She saw Dr. James on June 26, 2012, and he diagnosed her with lumbar spondylosis with right L5 radicular pain. Dr. James proposed a treatment plan involving a series of lumbar epidural steroid injections, the first of which was performed that day.

[27] On July 25, 2012 and on August 22, 2012, Dr. James made a second and a third epidural injection.

[28] During each epidural injection, Dr. James instructed Ms. Levac to sit on the stretcher in the procedure room, with her back facing him. On each occasion, Dr. James followed his routine IPAC Practice.

[29] Ms. Levac was not in a position to observe what Dr. James was doing.

4. The Outbreak and the Toronto Public Health Investigation

[30] Meningitis is an inflammation of the membranes surrounding the brain and spinal cord caused by a viral, bacterial or fungal infection. It is a reportable disease under the Health Protection and Promotion Act, R.S.O. 1990, c. H.7.

[31] On November 29, 2012, a case of meningitis in a patient who had recently received an epidural injection at the Clinic was reported to TPH. TPH identified two other cases connected to the Clinic.

[32] Three cases of meningitis related to epidural injections at a single clinic represents a substantially greater number of infections than would be ordinarily expected. TPH initiated an investigation because of the outbreak of cases.

[33] The TPH investigators sought to determine the source of the infections and they audited the IPAC Practices at the Clinic. The investigators’ audit was conducted on November 30, 2012 and December 3, 2012.

[34] The investigators prepared a Report pursuant to the Health Protection and Promotion Act. The Act directs public health agencies to prevent or reduce the burden of infectious diseases of public health importance. The TPH’s Public Health Report is publicly available on the TPH’s website. On this motion, the Report was filed as an exhibit to the affidavit of Mr. Michelucci.

[35] As a result of its investigation, TPH identified three cases of meningitis, five cases of epidural abscess, and one case of bacteraemia, all connected to the Clinic. All nine patients had serious infections requiring hospitalization. All nine patients had received epidural injections performed by Dr. James at the Clinic over a three-month period between August 20 and November 25, 2012. During the same period, a total of 272 of Dr. James’ patients underwent an epidural injection administered by him.

[36] Dr. McGeer deposed that nine cases of severe infection following epidural injections in 272 patients results in an infection rate of approximately 3%. Even assuming that many of the 272 patients had multiple injections, the rate of infection was extraordinarily high for epidural injections.

[37] Eight of the nine infected patients had positive laboratory cultures of staphlococcus aureus. The cultures were tested at the Public Health Ontario Laboratory and were then sent to the National Microbiology Laboratory for pulse field gel electrophoresis (PFGE) sub-typing, which provides a DNA fingerprint, which can determine whether bacteria from different individuals are of the same strain. Six of the eight patients were found to have the same strain of staphlococcus aureus.

[38] On December 3 and 7, 2012, four specimens were collected from Dr. James for laboratory testing. Three of these four samples were positive for staphlococcus aureus and these samples were sent out for PFGE sub-typing, where it was determined that specimens collected from Dr. James were of the same strain of staphlococcus aureus as six of the infected patients identified during the outbreak.

[39] Seventeen other Clinic staff members were tested. Five had positive cultures for staphlococcus aureus. These cultures were sent for PFGE testing, but none matched the outbreak strain.

[40] Thirteen environmental samples were also collected from the room where Dr. James administered the epidural injections. Three of the environmental samples (countertop, telephone and physician's arm rest were positive for staphlococcus aureus, and the testing confirmed a match to the outbreak strain in all three of the samples collected from Dr. James’ procedure room.

[41] Dr. McGeer deposed that the presence of multiple points of environmental contamination strongly supports an inference that the cleaning and disinfection procedures utilized in Dr. James’ procedure room were ineffective.

[42] Dr. James testified that he was aware of at least 12 patients who developed infections after he administered an epidural injection between mid-2011 and late 2012, including Ms. Levac. During this period, he administered approximately 1,800 epidural injections.

[43] As outlined in its Public Health Report, the TPH investigators found the following deficiencies in IPAC Practice at the Clinic. Dr. James’ hand hygiene was not consistently or properly performed; his alcohol-based hand rub routine lasted less than 5 seconds; he touched many surfaces after performing an alcohol-based hand rub but before donning sterile gloves; he used gloves that were too big for his hands; he did not remove his wedding ring; he applied his mask without performing hand hygiene; he did not have the nose piece/bridge on mask pinched; he did not wait for skin preparation to dry before inserting the needle into the epidural space; and the sterile field was not appropriately covered or kept sterile.

[44] On cross-examination, Dr. James admitted that he was unaware of the College of Physicians and Surgeons’ standards with respect to office infection control and unaware of the standards for Out-of-Hospital Premises. He admitted that: he did not remove his wedding ring when administering an epidural; he put on his face mask before performing hand hygiene; and, his gloves were not always a perfect fit and were loose at times.

[45] After Dr. James was informed that he was colonized with staphylococcus aureus, he stopped work and he submitted to decolonization treatment. He did not return to work until testing confirmed that he was fully decolonized.

[46] Dr. James had no prior knowledge that he was colonized. He has no knowledge of how it occurred or for how long he had been colonized with the bacteria.

5. The TPH Public Health Report

[47] The TPH investigators made the following findings in their Public Health Report:

• Procedure room surfaces were cleaned only once a week.

• Counters were disinfected with low level disinfectant only once per week.

• Patient pillows were not wiped at all (same pillow cases used until visibly soiled); beds were not wiped between patients; and the pulse-oximeter used on every patient was never cleaned.

• Operating room curtains were never cleaned.

• Dr. James used gloves which were too big for his hands.

• Dr. James' mask did not have the nose piece/bridge pinched.

• Hand hygiene was not performed consistently or appropriately.

• Dr. James did not perform a surgical hand scrub prior to procedures.

• Dr. James' alcohol-based hand rub routine lasted less than five seconds.

• Dr. James touched many surfaces after performing an alcohol-based hand rub but prior to donning sterile gloves and he donned sterile gloves without performing additional hand hygiene.

• Dr. James opened sterile items into a sterile container which was then placed on a non-sterile field.

• Dr. James re-used multi-dose vials between patients.

• Tops of medication vials were not wiped prior to drawing up medications.

• The sterile field was not appropriately covered or kept sterile.

• Dr. James did not wait for skin prep to dry before inserting the needle into the epidural space.

• Non-sterile gauze was used after the procedure to wipe ooze from back and dress wound, including at times baby wipes.

[48] The TPH Public Health Report concluded that Dr. James was colonized with staphlococcus aureus and as result of poor IPAC Practice, transmission occurred from Dr. James to his patients.

6. The Expert Evidence

[49] Drs. McGeer and Smyth reviewed the following documents: (a) TPH, “Final Summary - Investigation of Methicillin-sensitive Staphylococcus aureus (MSSA) infections associated with epidural steroid injections Rothbart Centre for Pain, 4646 Dufferin Street, Unit #9, Toronto, Ontario,” October 8, 2014; (b) TPH: “Communicable Diseases in Toronto 2012,” December 2013; (c) TPH, “Rothbart Clinic Investigation”; (d) Ontario Public Health, “Rothbart Clinic Investigation.”

[50] With respect to the TPH Report, Drs. McGeer and Smyth also reviewed the source data, the observational findings, the minutes of meetings and teleconference, the laboratory test results, the documents collected and reviewed, and the methodology employed by the investigators.

[51] Drs. McGeer and Smyth also reviewed the medical records of fourteen of Dr. James’ infected patients, of which five received an epidural injection during the period reviewed by TPH and the balance received injections outside that period.

[52] Dr. McGeer deposed that the need and methodology for aseptic techniques for epidural injections is well established. She deposed that in 2007, the American Society of Anesthesiologists released a practice advisory strongly recommending that an aseptic technique be followed for epidural injections, including the use of masks. This guideline confirmed earlier research and advice. Around the same time, the Centres for Disease Control and Prevention published recommendations for safety practices for patients undergoing epidural injections. She said that aseptic technique requires proper hand hygiene, the use of personal protective equipment, careful preparation of the patient, creating and maintaining a sterile field, the use of safe techniques and the maintenance of a safe environment.

[53] The evidence of Dr. McGeer and of Dr. Smyth, both of whom were witnesses for Ms. Levac and who were not cross-examined, was that the rate of infection in the patients of the Clinic (the Class Members) during the Class Period was significantly higher than would be expected and that the high rate of infection can only be explained by a failure to utilize IPAC Practice in accordance with the recognized standard of care.

[54] Dr. McGeer said the use of appropriate IPAC Practice would have been expected to prevent transmission of staphylococcus aureus from physician to patient. Dr. McGeer deposed that had Dr. James followed accepted IPAC Practice, the infections would likely not have occurred.

[55] Dr. McGeer testified that a rate of nine cases of infection following epidural injections in 272 patients is an extraordinarily high rate. She opined that Dr. James was the likely source of infection at the Clinic and that taken together, the performance of epidural injections in the face of the inadequacies in IPAC Practice, amounted to a failure to maintain the standards of practice for a reasonable physician.

[56] Dr. Smyth agreed with the views of Dr. McGeer.

[57] It was Dr. McGeer’s opinion that the patients infected outside of the outbreak period were also likely infected by Dr. James; she deposed:

The rate of infection with staphylococcus aureus of the Non-Outbreak Period Patients is extremely high and unexpected. On this basis, I conclude that Dr. James was colonized with staphylococcus aureus and the Clinic’s IPAC Practices were similar from at least September 28, 2011 through to the end of the Outbreak Period. Absent evidence of a specific source for the infection other than the clinic, the Non-Outbreak Period Patients were likely infected at the Clinic as a result of substandard IPAC.

[58] Dr. McGeer deposed that it was impossible to say precisely why the IPAC Practice had failed. She stated:

Given the multiple breaches in IPAC described … it is impossible to say for certain how the bacteria passed from Dr. James to his patients. The bacteria could have been passed to the patient through direct contamination, or indirectly through contamination of the needle, contact with a previously contaminated vial or other contaminated surface. It is also possible that the bacteria could have been introduced through the use of contaminated gloves or as a result of direct aerosol transmission from Dr. James’ nasal passages as a result of a failure to properly wear a mask during the epidural procedure.

[59] Dr. Smyth reviewed the medical records, the Public Health Report, and the TPH investigation records and then Dr. McGeer’s opinion. Dr. Smyth deposed that aseptic techniques should always be used during the performance of an epidural, including removing any rings, appropriate hand washing, wearing of sterile gloves, wearing of caps, wearing of appropriately fitting masks covering both the mouth and nose, use of individual packets of skin preparation antiseptic allowing adequate drying time, and sterile draping of the patient.

[60] Dr. Smyth deposed that severe infections involving meningitis and epidural abscess are rare in spinal injections and when these complications have been reported, staphlococcus aureus is the most common organism implicated. She said that the bacteria is believed to be introduced via the skin through needle puncture as a result of poor sterile technique.

[61] Dr. Smyth deposed that the number of cases identified at the Clinic was far in excess of what one would ordinarily expect to see. It was her opinion that the number of infections associated with epidural injections performed by one doctor over a period of a few months was itself sufficient evidence that Dr. James' IPAC Practice was substandard. In her view, the fact that nine serious cases were identified during such a short interval of time was very strong evidence that appropriate IPAC Practice were not being followed. In her opinion, the only plausible explanation for the outbreak was substandard infection control. It was her opinion that as a result of Dr. James being colonized with staphlococcus aureus and with poor IPAC Practice, transmission of staphlococcus aureus occurred from Dr. James to his patients. She opined that Dr. James’ IPAC Practice was inadequate and that he failed to meet basic standards of practice.

[62] Dr. Rau opined that the Dr. James’ IPAC Practice was appropriate and consistent with the standard of care expected of physicians performing epidural injections. After noting that Dr. James wore a wedding band underneath his sterile gloves during the procedure, Dr. Rau stated that healthcare policies generally permit wearing a smooth single wedding band without projections or mounted stones. He said that the majority of healthcare providers do not remove wedding bands before using sterile gloves unless they are participating in a procedure in an operating room requiring a surgical scrub.

[63] Dr. Rau opined that given that from 2004 to mid-2011 Dr. James had administered thousands of epidural injections without any report of an infection and given his acceptable IPAC Practice never changed, the explanation for the infections post mid-2011was that he was unknowingly colonized with a highly virulent strain of staphylococcus aureus that could cause infections notwithstanding the appropriate IPAC Practice.

[64] It was Dr. Doran’s opinion that Dr. James' IPAC Practice met the expected standard of care for a physician practicing in Ontario during the Class Period. Dr. Doran stated that the scientific literature, observational studies and case reports, revealed that patients can still develop infectious complications after epidural injections even when appropriate IPAC measures are used.

[65] In reaching his opinion, Dr. Doran did not review the opinions of Drs. McGeer or Smyth and he did not review the public health reports. In reaching his opinion, Dr. Doran assumed that: Dr. James spent more than five seconds cleaning his hands; Dr. James waited for the Betadine skin preparation to dry prior to the injection; and Dr. James used gloves which fit properly and were not too big for his hands. Dr. Doran also conceded that hand hygiene should be performed before donning a mask.

[66] Dr. Doran and Dr. Rau also reviewed Ms. Levac’s medical records from the Clinic and deposed that there is no indication in those documents that Dr. James failed to follow his IPAC Practice during the epidural injections that he performed on Ms. Levac.

D. CERTIFICATION AS A CLASS ACTION

1. Discussion and Analysis

[67] Pursuant to s. 5(1) of the Class Proceedings Act, 1992, the court shall certify a proceeding as a class proceeding if: (1) the pleadings disclose a cause of action; (2) there is an identifiable class; (3) the claims or defences of the class members raise common issues of fact or law; (4) a class proceeding would be the preferable procedure; and (5) there is a representative plaintiff or defendant who would adequately represent the interests of the class without conflict of interest and there is a workable litigation plan.

[68] Save for Dr. James’ objection to the formulation of the common issues, he and the other Defendants do not oppose the certification of Ms. Levac’s action as a class proceeding. Similar types of claims involving an outbreak of an infectious disease at a medical clinic or hospital have been certified: Anderson v. Wilson (1999), 1999 CanLII 3753 (ON CA), 44 O.R. (3d) 673 (C.A.). Rose v. Pettle, [2004] O.J. No. 739 (S.C.J.).

[69] Ms. Levac’s Statement of Claim pleads a claim for medical negligence. There are also derivative claims on behalf of family members under the Family Law Act, R.S.O. 1990, c. F.3.

[70] The cause of action criterion is satisfied.

[71] The proposed class definition is:

(a) all individuals who received epidural injections administered by Dr. James at the Rothbart Pain Clinic between January 1, 2010 and November 30, 2012, who subsequent to their treatment at the Clinic developed signs or symptoms clinically compatible with bacterial meningitis, epidural abscess, or cellulitis of a bacterial origin and/or bacteremia (“Clinical Infection”), or where such a person is deceased, the personal representative of the estate of the deceased (the “Infection Patient(s)”); and

(b) all living parents, grandparents, children, grandchildren, siblings, and spouses (within the meaning of section 61 of the Family Law Act) of the Infected Patients, or where such a family member died after his or her related Infection Patient developed signs or symptoms of Clinical Infection, the personal representative of the deceased family member (“Family Law Claimant(s)”).

[72] The class definition criterion is satisfied.

[73] Ms. Levac proposes the following common issues: (a) whether the Defendants owed a duty of care to the Class Members to maintain infection control practices; (b) whether the Defendants breached the standard of care for infection control practices; and (c) whether the Defendants’ conduct was sufficient to attract punitive damages.

[74] Dr. James did not oppose the duty of care common issue, and, indeed, he concedes that he had a duty of care to the Class Members. However, with respect to the standard of care common issue, he submitted that the proposed language was too broad and would result in an unworkable litigation procedure. He said that the duty of care issue was deficient because it does not account for Class Member-specific evidence of Dr. James departing from his routine IPAC Practice which allegation would have to be dealt with as part of their individual trial in addition to causation and damages.

[75] Before the argument of the motion for certification, Dr. James proposed that the standard of care issue be replaced with two more precise common issues; namely:

(b1) 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,

(b2) 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

[76] At the hearing of the certification motion, Dr. James proposed another version of the standard of care questions, as follows:

(b1) Whether the Defendants breached the standard of care required for infection protection and control practices; and

(b2) In what ways, if any, did the Defendants’ routine invariable IPAC Practice breach the standard of care for infection control practices?

[77] At the hearing, I discussed with the parties yet another version of the duty of care issue, which I suggested might resolve the dispute between the parties; namely: In what ways, if any, did the Defendants’ routine invariable IPAC Practice breach the standard of care for infection control practices?

[78] After reflecting on all these choices for the standard of care issue, I have concluded that none of them are satisfactory. Employing the theoretical or doctrinal scheme or methodology of class proceedings, while I conclude that there is a common issue about the duty of care, there is no basis in fact for any of the above duty of care issues as they have been expressed. As currently drafted, the proposed common issues, including the version that I proposed at the hearing, do not respond to the common factual exigencies of this particular class action.

[79] In the immediate case, there is some basis in fact for commonality in the factual notion that the Defendants, and most particularly Dr. James, had an invariable IPAC Practice. It was a common practice. His invariable practice establishes some basis in fact for commonality as such.

[80] With perhaps one or two exceptions, there is some basis in fact and commonality in the factual notion that - if followed - the IPAC Practice followed at the Clinic would meet the standard of care for the administering of an epidural injection. The problem, however, about certifying a common issue about these commonalities is that with the exception of perhaps one or two matters about the IPAC Practice, the alleged breaches of duty are about deficiencies in performing the IPAC Practice and not about the design of the IPAC Practice.

[81] In the case at bar, the distinction between negligent performance and negligent design of the IPAC Practice complicates the formulation of a proper common issue for which there is some basis in fact. Three examples will make the point.

[82] First, visualize, in the immediate case, a common performance duty of care question for which there is some basis of fact would be whether Dr. James breached his duty of care by perfunctorily washing his hands (performing hand hygiene) when following the invariable protocol of the IPAC Practice.

[83] Second, visualize, in the immediate case, a common design duty of care question for which there is some basis in fact would be whether Dr. James breached a duty of care in designing his invariable IPAC Practice by not specifying that jewelry be removed as a part of the protocol.

[84] Third, visualize, in the immediate case, another common design duty of care question for which there is some basis in fact would be whether Dr. James breached a duty of care in designing his invariable IPAC Practice by not specifying that for hand hygiene, hands should be rubbed with a sanitizer for a minimum of 15 seconds.

[85] None of the formulations of the common issues that were discussed at the hearing of the certification motion adequately deals with these permutations of the duty of care issue. Moreover, comparing the third example of a duty of care question with the first question reveals that there is a blurry line between the duty of care in design and the duty of care in performance, and this further complicates the formulation of a proper common issue in the immediate case.

[86] In my opinion, the answer to these problems is the following common issue, which emerges from the factual record and which I shall certify; i.e.:

(b) 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?

[87] This question would allow the court to determine in what ways, if any, the Defendants’ invariable designed but not necessarily invariably performed IPAC Practice breached the standard of care and whether the Defendants breached their duty of care to possibly cause harm to the Class Members, who would still have to prove individual causation.

[88] Dr. James also opposed the certification of the punitive damages common issue. I conclude, however, that the question is a proper common issue and may be certified.

[89] In Waldman v. Thomson Reuters Corp., 2012 ONSC 1138, leave to appeal to Div. Ct. refused, I explained that although a claim for the assessment of punitive damages will not be suitable for a common issue when the court cannot make a rational assessment about the appropriateness of punitive damages until after individual assessments of the compensatory losses of class members has been completed, nevertheless, the question of whether the defendant’s conduct was sufficiently reprehensible or high-handed to warrant punishment is capable of being determined as a common issue. This approach was endorsed in Chalmers (Litigation guardian of) v. AMO Canada Co., 2010 BCCA 560 and in other cases.

[90] With the above common issues, I am satisfied that the balance of the certification criteria are satisfied and, therefore, this action should be certified as a class proceeding.

E. THE MOTION FOR SUMMARY JUDGMENT

1. Introduction

[91] The action having been certified as a class action, Ms. Levac moves for a summary judgment on the common issue of whether Dr. James – alone among the Defendants – breached his duty of care.

[92] The summary judgment motion raises issues about access to justice and the manner of proof of a breach of the standard of care in a medical malpractice action in the context of a class proceeding. At its most general level, Ms. Levac’s summary judgment motion presents three major issues that are interrelated and complicated.

[93] The first major issue is whether the case is appropriate for a summary judgment, which issue is complicated by the circumstance that Ms. Levac’s motion is for a partial summary judgment of a common issue in a class proceeding, and thus, the decision has implications not only for Ms. Levac and Dr. James but for the Class Members for whom she is the Representative Plaintiff.

[94] If the case is appropriate for a partial summary judgment, the second issue is whether Ms. Levac should be granted a summary judgment. The second major issue raises the issue of the difference between proof by circumstantial evidence that supports an inference of negligence and the rejected doctrine of res ipsa loquitur ("the thing speaks for itself”) that cannot be used to prove negligence.

[95] If the case is both appropriate for a summary judgment and if Ms. Levac is entitled to a partial summary judgment of the duty of care issue, the third major issue is: what are the implications of that partial summary judgment to her class action?

[96] In this last regard, if summary judgment is granted as against Dr. James, Ms. Levac seeks an Order that the Class Members be divided into two groups and that the members of each group may proceed to individual issues trials as against Dr. James. In the first group would be Class Members whose staphylococcus aureus has already been genetically linked to Dr. James. For this group, Ms. Levac submits that the summary judgment would have determined Dr. James’ liability and she proposes that the individual issues trials would quantify the Class Members’ damages. In the second group would be the remaining Class Members, including Ms. Levac, and for this group, Ms. Levac submits that the individual issues trials should determine specific causation to perfect the negligence claim and then the Class Member’s damages would be quantified.

[97] As I shall explain below, in my opinion, as to the first major issue, the case is appropriate for a partial summary judgment.

[98] As to the second major issue, I make two conclusions. First, I conclude that Ms. Levac and the Class Members should be granted a partial summary judgment that Dr. James had a duty of care to the Class Members. This first conclusion was conceded. Second, subject to proof of specific causation and damages, Dr. James was negligent. In other words, Dr. James breached his duty of care and general causation has also been established but to perfect their negligence claims, Class Members must prove specific causation and damages.

[99] As to the third major issue, I agree with Ms. Levac about the issue estoppels that are incidents of the common issues decision about the duty of care. As I shall explain, it is entailed in my summary judgment about the duty of care having been breached that: (a) all Class Members have proven general causation; and (b) those Class Members whose staphylococcus aureus has been genetically linked to Dr. James have also proven specific causation.

[100] To explain my conclusions, I shall begin with a description of the arguments of the parties. Then, I shall address the evidentiary problem arising from the expert evidence of Drs. McGeer and Smyth, which problem concerns the role the TPH reports have to play in the proof of Ms. Levac’s case against Dr. James. Next, I shall discuss whether the case is appropriate for a summary judgment. That discussion will be followed by the analysis of the law about the standard of care issue in a medical negligence action and the application of that law to the facts of the immediate case. As already foreshadowed, I shall grant Ms. Levac and the Class Members a partial summary judgment. Finally, I will address the third major issue of what are the implications of that partial summary judgment to the Class Members in Ms. Levac’s class action.

2. The Arguments of the Parties

[101] Ms. Levac seeks summary judgment for the following issues: (1) whether Dr. James owed a duty of care to the Class Members to utilize appropriate IPAC Practice for the safety of the Class Members; (2) whether Dr. James breached the duty of care owed to the Class Members by failing to utilize appropriate IPAC Practice; and (3) if there was a breach of the duty of care, whether causation of harm was then also established for any Class Member whose staphylococcus aureus was genetically linked to Dr. James.

[102] Dr. James acknowledges and does not dispute that he owed a duty of care to Ms. Levac and the Class Members, but he opposes and resists the balance of Ms. Levac’s summary judgment motion. Dr. James submits that there are genuine issues for trial about whether his admitted duty of care was breached, and he submits that the case is not suitable for a summary judgment under Rule 20 and that fairness and the interests of justice demand a regular trial of the common issues in this class action.

[103] Dr. James submits that Drs. McGeer’s and Smyth’s opinions are based on an inadmissible TPH Report that followed an investigation months after Ms. Levac’s treatment at the Clinic and thus does not address her case nor does it address the cases of any of the Class Members.

[104] Further, Dr. James submits that Drs. McGeer’s and Smyth’s opinions are based on a legally improper inference that the standard of care was breached for all Class Members.

[105] In this regard, Dr. James submits that Ms. Levac’s argument that he breached his duty of care, which argument is based on the opinions of Drs. McGeer and Smyth, is a retrospective inference of negligence that is an instance of the logical fallacy of post hoc, ergo propter hoc (“after this, therefore, because of this”) and of the defunct doctrine of res ipsa loquitur, which was rejected by the Supreme Court of Canada in Fontaine v. British Columbia (Official Administrator), 1998 CanLII 814 (SCC), [1998] 1 S.C.R. 424, where the Court treated the doctrine as expired.

[106] Dr. James submits that Ms. Levac and the Class Members who had infections cannot use those infections to retrospectively demonstrate a breach of the standard of care. He argues that to succeed, Ms. Levac must prove the specific or precise acts or omissions during her procedures that amounted to breaches of the standard of care, which she did not do. He says that her affidavit is silent as to what particular IPAC Practices were employed by Dr. James during any of her visits with him. He submits that Ms. Levac has tendered no evidence capable of proving the allegations on which she seeks summary judgment.

[107] Further still, relying on his evidence describing his invariable IPAC Practice for epidural injections during the proposed class period that was found to be acceptable by Drs. Rau and Doran, Dr. James submits that he has refuted any criticisms based on the TPH Report.

[108] For her part, Ms. Levac argues that the TPH Report is admissible pursuant to the public documents exception to the hearsay rule and, that in any event, Drs. McGeer’s and Smyth’s reliance on information available from the TPH Report was proper. Ms. Levac submits that Drs. McGeer’s and Smyth’s expert opinions are admissible and supported by the facts that are uncontestable or that Dr. James admits the facts to be true.

[109] Further, Ms. Levac rejects the submission that she is attempting to prove a breach of a duty of care common issue by the logical fallacy of post hoc, ergo propter hoc or by the defunct doctrine of res ipsa loquitur. Rather, she submits that her reasoning is not retrospective but an instance of circumstantial evidence proving a breach of a duty of care. She submits that the circumstantial evidence establishes that Dr. James breached his duty of care in one or more ways and that at least insofar as the patients who can trace their infections to the outbreak of staphylococcus aureus that has been genetically linked to Dr. James, all that remains outstanding to perfect the negligence claim is the quantification of the Class Member’s damages. For the balance of the class, all that remains outstanding to perfect their negligence claims is proof of specific causation and the quantification of damages.

3. The Experts’ Opinions and the Public Documents Exception to the Rule Against Hearsay Evidence

[110] Under the Health Protection and Promotion Act every board of health shall, among other things, superintend, provide or ensure the provision of health programs and services, among other things: (a) to ensure the maintenance of sanitary conditions and the prevention or elimination of health hazards; (b) to control infectious diseases and reportable diseases; and (c) to collect and analyze epidemiological data.

[111] In the case at bar, the reports of the TPH were introduced into evidence. However, because the investigators who authored the TPH reports did not testify, their reports are hearsay evidence of the truth of their factual assertions. Nevertheless, Ms. Levac submits that the reports are admissible for the truth of their contents pursuant to the common law exception to the rule against hearsay evidence for public documents.

[112] Under the public documents exception, the records and reports of public officials are admissible for the truth of their contents because of their inherent reliability or trustworthiness and because of the inconvenience of requiring public officials to be present in court to prove the records and reports: R. v. P. (A.), 1996 CanLII 871 (ON CA), [1996] O.J. No. 2986 (C.A.). In R. v. P. (A.), supra, Justice Laskin stated at para. 14:

14. At common law statements made in public documents are admissible as an exception to the rule against hearsay evidence. This exception is "founded upon the belief that public officers will perform their tasks properly, carefully, and honestly." Sopinka et al. The Law of Evidence in Canada 2nd ed. p.231. Public documents are admissible without proof because of their inherent reliability or trustworthiness and because of the inconvenience of requiring public officials to be present in court to prove them. Rand, J. commented on the rationale for the public documents exception to the hearsay rule in Finestone v. The Queen (1953), 1953 CanLII 81 (SCC), 107 C.C.C. 93 at 95 (S.C.C.):

The grounds for this exception to the hearsay rule are the convenience of the ordinary modes of proof and, the trustworthiness of the entry arising from the duty, and that they apply much more forcefully in the complex governmental functions of today is beyond controversy.

[113] As noted by Justice Laskin, the rationale for the exception to the rule against hearsay was explained by Justice Rand in R. v. Finestone, 1953 CanLII 81 (SCC), [1953] 2 S.C.R. 107, where Justice Rand adopted what was said centuries earlier in the English case of R v. Aickles (1785), 1 Leach Cr. L. 390 at p. 392:

The law reposes such a confidence in public officers that it presumes they will discharge their several trusts with accuracy and fidelity; and therefore whatever acts they do in discharge of their public duty may be given in evidence and shall be taken to be true, under such a degree of caution as the nature and circumstances of each case may appear to require.

[114] As set out by Justice Laskin in R. v. P. (A.), supra at para. 15, for the document to be admissible under the public documents exception to the rule against hearsay, four criteria should be satisfied; namely: (1) the document must have been made by a public official, that is a person on whom a duty had been imposed by the public; (2) the public official must have made the document in the discharge of a public duty or function; (3) the document must have been made with the intention that it serve as a permanent record; and (4) the document must be available for public inspection.

[115] The conditions of admissibility of a public document were articulated somewhat differently in R. v. Kaipiainen, 1953 CanLII 96 (ON CA), [1954] O.R. 43 (C.A.), where Justice Aylesworth described the criteria as follows: (1) there must be a judicial or semi-judicial inquiry; (2) the inquiry must be with the object that the report is to be made public; (3) the report must be open to public inspection; and (4) the statements in the public document must relate to matters about which he public officer holding inquiry had a duty to inquire into and report.

[116] As appears, Justice Aylesworth required that the public document be “judicial or semi-judicial.” That is, that the public official that authored the document must be exercising an adjudicative function. However, the case law reveals that an adjudicative function is a sufficient condition but not a necessary prerequisite for the public document exception to the rule against hearsay.

[117] An adjudicative function is not a prerequisite for a document being a public document. A public document means a document that is made for the purpose of the public making use of it, and being able to refer to it: R. v. P. (A.), supra at para. 15; Sturla v. Freccia (1880), 5 App. Cas. 623 (H.L.) at p. 643. In Documentary Evidence in Canada (Agincourt, ON: Carswell Legal Publications, 1984) at pages 149-150, the authors, J. Douglas Ewart, Michael Lomer and Jeff Casey, list three basic categories of public documents: (1) entries made in public registers or files by public officials; (2) the results of official investigations or inquiries carried out by public officials; and (3) certificates prepared by public officials.

[118] In the Supreme Court of Canada case, R. v. Finestone, supra, the public documents that were ruled admissible for the truth of their contents were the records of the Collector of Customs at New York State - hardly an official exercising an adjudicative function. In that case, Mr. Finestone was charged with exporting goods from Canada to a destination not authorized by his export permit and the customs documents were used to prove the commission of the offence.

[119] In R. v. P. (A.), supra, the public documents were an information and a probation order. Recently, in R. v. Duffy, 2015 ONCJ 304, Justice Vaillancourt held that Canada’s Senate Standing Committee on Internal Economy, Budgets, and Administration Eleventh Report was a public document admissible under the public documents exception. In the Eleventh Report, the Senate Committee set out and approved the Annual Report on Internal Audits, 2009-2010, which again is not an adjudicative document.

[120] However, relying on R. v. Dykstra, 2008 CanLII 34355 (ON SC), [2008] O.J. No. 2745 (S.C.J.), Radke v. M.S. (Litigation Guardian of), [2005] B.C.J. No. 2077 (B.C.S.C.), and Robb v. St. Joseph's Health Care Centre, [1998] O.J. No. 5394 (Gen. Div.), Dr. James argued that the TPH Reports were not admissible as public documents.

[121] In R. v. Dykstra, supra, Justice Baltman ruled inadmissible the Report of the Standing Senate Committee on National Security, which had been proffered into evidence by the defendants who were charged with the unlawful importation of hash oil into Canada. In Radke v. M.S. (Litigation Guardian of), supra Justice Bennett, ruled inadmissible a report of the Commission for Public Complaints Against the RCMP in an action against the defendant RCMP officer whose vehicle had struck the plaintiff’s vehicle during the course of the pursuit of a stolen vehicle. In Robb v. St. Joseph's Health Care Centre, supra, in a class action by the families of men who had died from AIDS after being infected with HIV-contaminated blood products, Justice E. Macdonald ruled inadmissible the report of the Royal Commission of Inquiry into the Blood System (the “Krever Report”) and the report of the Information Commissioner, John W. Grace (the “Grace Report”).

[122] I do not doubt the correctness of these decisions, but they do not establish that the TPH Reports do not qualify as public documents and they do not impose the absolute requirement that public documents be judicial or quasi-judicial documents. What R. Dykstra, supra, Radke v. M.S. (Litigation Guardian of), supra, and Robb v. St. Joseph's Health Care Centre, supra, reveal is that the criteria for the hearsay exception are surrogates for the court being satisfied that the information provided by the public officials in pursuit of their public duties is reliable and trustworthy information that may be fairly admitted for the truth of its contents. If in the circumstances of the particular case, the court is not satisfied about the reliability of the public document or if the court concludes that the admission of the evidence would be unfair, then the court may refuse to admit the evidence notwithstanding that the criteria for admissibility for a public document have been satisfied. Thus, for example, in Radke v. M.S. (Litigation Guardian of), supra, Justice Bennett held that the report did not possess the circumstantial guarantee of trustworthiness required to fit within the public document exception to the hearsay rule.

[123] In my opinion, in the immediate cases, the TPH Reports were admissible for the truth of their contents pursuant to the public documents exception to the rule against hearsay. In my opinion, all the criteria for admissibility were satisfied. The TPH investigators were charged with a public duty to investigate the outbreak at the Clinic and the investigators’ records are inherently reliable or trustworthy.

[124] In any event, even if I am wrong in this conclusion about the public documents exception, the outcome of the summary judgment would be the same. This follows because the facts upon which Drs. McGeer and Smyth founded their opinion were uncontestable or uncontested or the facts were admitted by Dr. James. Dr. James had the opportunity to cross-examine Drs. McGeer and Smyth about the foundational facts, but he did not do so. He accepted the truth of the foundational facts.

[125] The foundational facts included the facts that: (a) epidural injections are an invasive procedure and that risk of infection is a serious concern; (b) IPAC Practices are designed to reduce if not eliminate the risk of infection from viral, bacterial, or fungal agents; (c) Dr. James was trained in IPAC Practices and intended to comply with the standard of care for IPAC Practice; (d) Dr. James invariably and sequentially performed the IPAC Practice described above; (e) between August 20 and November 25, 2012, he performed 272 epidural injections; (f) during this period, nine of the 272 patients developed very serious infections requiring hospitalization; (g) the rate of infection was extraordinarily high for epidural injections; (h) a high rate of infection can be explained by a failure to utilize IPAC Practice in accordance with the recognized standard of care; (i) six of his infected patients were infected with a strain of staphlococcus aureus that was found on Dr. James himself and that was found on the countertop, telephone and physician's arm rest in the procedure room that was exclusively used by Dr. James; (j) Dr. James did not remove his wedding ring before administering epidural injections; (k) from time to time, Dr. James used gloves that were too big for his hands; (l) Dr. James did not dispute that he may have applied his mask without performing hand hygiene; and (m) Dr. James did not dispute that he did not have the nose piece/bridge on his mask pinched.

[126] As I shall explain below, these foundational facts are circumstantial evidence upon which the court may conclude on the balance of probabilities that Dr. James breached his duty of care with respect to IPAC Practice.

4. Is the Case Appropriate for a Summary Judgment?

[127] Dr. James submits that the case at bar is inappropriate for a summary judgment and should be resolved by a regular trial of the common issues.

[128] Rule 20.04(2)(a) of the Rules of Civil Procedure provides that the court shall grant summary judgment if: “the court is satisfied that there is no genuine issue requiring a trial with respect to a claim or defence.” With amendments to Rule 20 introduced in 2010, the powers of the court to grant summary judgment have been enhanced. Rule 20.04(2.1) states:

20.04 (2.1) In determining under clause (2)(a) whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties and, if the determination is being made by a judge, the judge may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.

2. Evaluating the credibility of a deponent.

3. Drawing any reasonable inference from the evidence.

[129] In Hryniak v. Mauldin, 2014 SCC 7 and Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, the Supreme Court of Canada held that on a motion for summary judgment under Rule 20, the court should first determine if there is a genuine issue requiring trial based only on the evidence in the motion record, without using the fact-finding powers introduced when Rule 20 was amended in 2010. The analysis of whether there is a genuine issue requiring a trial should be done by reviewing the factual record and granting a summary judgment if there is sufficient evidence to fairly and justly adjudicate the dispute and a summary judgment would be a timely, affordable and proportionate procedure.

[130] If, however, there appears to be a genuine issue requiring a trial, then the court should determine if the need for a trial can be avoided by using the powers under rules 20.04(2.1) and (2.2). As a matter of discretion, the motions judge may use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if their use will lead to a fair and just result and will serve the goals of timeliness, affordability, and proportionality in light of the litigation as a whole.

[131] At para. 22 of her judgment in the companion case of Bruno Appliance and Furniture, Inc. v. Hryniak, supra, Justice Karakatsanis summarized the approach to determining when a summary judgment may or may not be granted; she stated:

Summary judgment may not be granted under Rule 20 where there is a genuine issue requiring a trial. As outlined in the companion Mauldin appeal, the motion judge should ask whether the matter can be resolved in a fair and just manner on a summary judgment motion. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result. If there appears to be a genuine issue requiring a trial, based only on the record before her, the judge should then ask if the need for a trial can be avoided by using the new powers provided under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice.

[132] Hryniak v. Mauldin does not alter the principle that the court will assume that the parties have placed before it, in some form, all of the evidence that will be available for trial. The court is entitled to assume that the parties have advanced their best case and that the record contains all the evidence that the parties will present at trial: Dawson v. Rexcraft Storage & Warehouse Inc., 1998 CanLII 4831 (ON CA), [1998] O.J. No. 3240 (C.A.); Bluestone v. Enroute Restaurants Inc. (1994), 1994 CanLII 814 (ON CA), 18 O.R (3d) 481 (Ont. C.A.); Canada (Attorney General) v. Lameman, 2008 SCC 14, [2008] 1 S.C.R. 372 at para. 11. The onus is on the moving party to show that there is no genuine issue requiring a trial, but the responding party must present its best case or risk losing: Pizza Pizza Ltd. v. Gillespie (1990), 75 O.R. (2d) 255 (Gen. Div.); Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 CanLII 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), aff’d [1997] O.J. No. 3754 (C.A.).

[133] The jurisdictional test for granting a summary judgment is that there is no genuine issue requiring a trial, and at the heart of this test is a judicial gut check. Although she did not put it in quite that way, in Hryniak v. Mauldin at paras. 49 and 50, Justice Karakatsanis noted that in the context of an adversarial system, if a judge is going to decide a matter summarily, then he or she must have confidence that he or she can reach a fair and just determination without a trial. She expressed this sentiment, as follows:

49. There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process: (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.

50. These principles are interconnected and all speak to whether summary judgment will provide a fair and just adjudication. When a summary judgment motion allows the judge to find the necessary facts and resolve the dispute, proceeding to trial would generally not be proportionate, timely or cost effective. Similarly, a process that does not give a judge confidence in her conclusions can never be the proportionate way to resolve a dispute. It bears reiterating that the standard for fairness is not whether the procedure is as exhaustive as a trial, but whether it gives the judge confidence that she can find the necessary facts and apply the relevant legal principles so as to resolve the dispute.

[134] Part of this confidence or gut check that a summary judgment is fair and just is achieved if the judge is satisfied that he or she can justly and fairly decide the matter without the advantages of participating in the dynamic of a trial, where witnesses testify in their own words and can be observed through the rigors of both examination-in-chief and cross-examination, and where the judge has an extensive exposure to the evidence and sees the case unfold without having to piece it together in chambers working from affidavits, transcripts, and factums.

[135] Although in Hryniak v. Mauldin the Supreme Court of Canada commanded a very robust summary judgment procedure, it did not foreclose lower courts from simply dismissing the summary judgment motion and ordering that the action be tried in the normal course: Gubert v. 1536320 Ontario Limited, 2015 ONSC 3294. Where there are genuine issues for trial and the court concludes that employing the enhanced forensic tools of the summary judgment procedure would not lead to a fair and just determination of the merits, the court should not decide the matter summarily: Mitusev v. General Motors Corp., 2014 ONSC 2342 at para. 79; Gon (Litigation Guardian of) v. Bianco, 2014 ONSC 65 at paras. 41-47; Yusuf v. Cooley, 2014 ONSC 6501; Baywood Homes Partnership v. Haditaghi, 2014 ONCA 450 at para. 44.

[136] In Baywood Homes Partnership v. Haditaghi, supra, the Court of Appeal held that where the motion is for a partial summary judgment, the motions judge is obliged to assess the advisability of a partial judgment in the context of the litigation as a whole. In this case, the Court of Appeal also stated that when conflicting evidence is presented on factual matters, a motions judge is required to articulate the specific findings that support a conclusion that a trial is not required. The Court noted that evidence by affidavit, prepared by a party's legal counsel, which may include voluminous exhibits, can obscure the affiant's authentic voice and make the motions judge's task of assessing credibility and reliability especially difficult in a summary judgment and mini-trial context and that great care must be taken by the motions judge to ensure that decontextualized affidavit and transcript evidence does not become the means by which substantive unfairness enters, in a way that would not likely occur in a full trial where the trial judge sees and hears it all. See also: Trotter v. Trotter, 2014 ONCA 841; Gino L Arnone Professional Corp. v. Hacio, 2015 ONSC 5266.

[137] In Mitusev v. General Motors Corp., supra, Justice Edwards declined to allow a summary judgment motion proceed when the moving party defendant did not proffer sufficient evidence to ensure that the judge hearing the motion could be confident that he or she could fairly resolve the dispute. In that product’s liability case, the plaintiff’s personal injury claim arose from a single vehicle car accident allegedly caused by defects in the driver's seat in the vehicle. One of the defendants moved for summary judgment based on the submission that it was not the manufacturer of the part that was defective and that had caused the failure of the seat. Justice Edwards found, however, the defendant’s evidence inadmissible and, accordingly, there was inadequate evidence to allow him to fairly and justly adjudicate the dispute.

[138] To grant summary judgment, on a review of the record, the motions judge must be of the view that sufficient evidence has been presented on all relevant points to allow him or her to draw the inferences necessary to make dispositive findings: Ghaeinizadeh (Litigation guardian of) v. Garfinkle Biderman LLP, 2014 ONSC 4994, leave to appeal to Div. Ct. refused, 2015 ONSC 1953 (Div. Ct.); Lavergne v. Dominion Citrus Ltd., 2014 ONSC 1836 at para. 38; George Weston Ltd. v. Domtar Inc., 2012 ONSC 5001.

[139] In considering whether to allow the summary judgment motion to go ahead or how it should go forward, the court should consider factors such as: (a) the nature and complexity of the issues; (b) the extent of the anticipated record; (c) the comparative prospects that the record will be sufficient to satisfy the test for a summary judgment with or without examinations for discovery; (d) whether the responding party have production and oral discovery similar to that available in the normal course; and (e) whether more efficient means could be developed to ensure the just, most expeditious and least expensive determination of the case on its merits: George Weston Ltd. v. Domtar Inc., supra at paras. 53-55.

[140] In Ghaffari v. Asiyaban, 2012 ONSC 2724, which was not a class action, Justice Ferguson stated that a summary judgment motion should only be stayed in the clearest of cases and only after the court had considered: (a) whether the party seeking a stay has put its best foot forward to show that there is a genuine issue requiring a trial or that the matter was too complicated for a judge to achieve a full appreciation of the case; and (b) whether the complexity of the matter, the nature of the issues, and the nature of the evidence indicated that the case was not amenable to a judgment without a full trial. See also Stever v. Rainbow International Carpet Dyeing & Cleaning Co., 2013 ONSC 241, leave to appeal refused 2013 ONSC 1574 (Div. Ct.).

[141] In Williams v. Wai-Ping, [2005] O.J. No. 5426 (S.C.J.) at para. 7, affirmed [2005] O.J. No. 6186 (Div. Ct.), which is a pre-Hyrniak decision, Justice R. MacKinnon set out the general principles applicable to a motion for summary judgment in the context of a medical malpractice action, as follows:

7. Where a court is satisfied that there is no genuine issue for trial it shall grant summary judgment under Rule 20. The burden is on each of the moving parties to satisfy the court that the requirements of the rule have been met in their case. The court's function at this stage is not to resolve issues of fact, but to determine whether a genuine issue exists as to material facts which requires a trial. A motion for summary judgment is not an adequate substitute for a trial. A motion for summary judgment is not an adequate substitute for a trial. In such a ruling the court will never assess credibility, weigh evidence, or find facts. The defendant, however, must put his best foot forward. He cannot merely rest on allegations contained in his pleadings. I am entitled to assume that the motion records contain all the evidence which the parties would present if there was a trial. The defendant is not entitled to sit back and rely on the possibility that more favourable facts may evolve at trial. The burden of demonstrating no genuine issue is on the plaintiffs as moving parties. However, if their individual onuses are met, the defendant as responding party must then establish in each case that he has a real chance of success. There is no legal onus on the defendant. Where the evidence presented by the plaintiffs prima facie establishes that there is no genuine issue for trial and they are accordingly entitled to summary judgment as a matter of law, the defendant assumes the evidentiary burden of presenting evidence which is capable of supporting the positions advanced by him.

[142] Post-Hryniak, the principles set out by Justice MacKinnon remain operative, with the addition of more robust powers to decide the issues summarily and without a trial. It is now the case that the court, on a summary judgment motion, can, in appropriate cases, assess credibility, weigh evidence, and find facts.

[143] Turning now to the case at bar and its appropriateness for a summary judgment, an aspect of the case, as the discussion in the next section will make clearer, is that it is unlikely that at trial either party would be in a position to develop a different factual basis for the duty of care issue than the evidentiary record that was developed for this summary judgment motion. This circumstance suggests that little will be gained by sending the action to a regular trial.

[144] Dr. James is relying on his routine practice and has no direct evidence about the acts or omissions, if any, that might explain why his patients developed infections. Ms. Levac also has no direct evidence, and she was not even able to see what was happening to her in the procedure room since the activity was, quite literally, behind her back. It seems that neither party will have direct or better evidence for a trial than the current record. Inevitably, the duty of care issue will be decided by circumstantial evidence, and the parties are to be taken to have put their best evidentiary foot forward for this summary judgment motion. From a forensic perspective, there is little to be gained by sending the matter to a trial.

[145] In my opinion, the duty of care issue is capable of being decided by summary judgment one way or the other. As it happens, I shall decide it in favour of Ms. Levac; however, but for the fact that Dr. James did not bring a cross-motion for a summary judgment, had I been satisfied that his argument was correct that Ms. Levac has tendered no evidence capable of proving the allegations on which she seeks summary judgment, I would have dismissed her action and granted Dr. James a summary judgment.

[146] I do not agree with Dr. James’ argument that now is not an appropriate time to decide the duty of care issue. I am satisfied that I can justly and fairly decide the matter without the advantages of participating in the dynamic of a trial.

[147] In my opinion, the case at bar is an appropriate case for a partial summary judgment on the duty of care issue. The duty of care issue is a genuine issue worthy of a trial, but a trial is not required to resolve this issue. I have sufficient evidence on all relevant points to allow me to make dispositive findings on the duty of care issue, to which I now turn.

5. The Standard of Care Issue in a Medical Negligence Action

[148] The plaintiff bears the burden of proof in an action alleging that a physician was negligent: Wilkinson Estate v. Shannon, [1986] O.J. No. 625 (H.C.J.). The constituent elements in a negligence claim are: (1) the defendant owes the plaintiff a duty of care; (2) the defendant's behaviour breached the standard of care; (3) the plaintiff suffered compensable damages; (4) the damages were caused in fact by the defendant's breach; and, (5) the damages are not too remote in law: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 at para. 3.

[149] To succeed in an action for medical negligence, the plaintiff must prove, on a balance of probabilities, that the physician breached the standard of care of a reasonable and prudent healthcare provider of the same experience and standing, having regard to all the circumstances of the case: Wilson v. Swanson, 1956 CanLII 1 (SCC), [1956] S.C.R. 804. In Crits v. Sylvester, 1956 CanLII 34 (ON CA), [1956] O.R. 132 (C.A.) at para. 13, aff’d [I956] S.C.R. 991, Justice Schroeder described the standard of care as follows:

…Every medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. He is bound to exercise that degree of care and skill which could reasonably be expected of a normal, prudent practitioner of the same experience and standing, and if he holds himself out as a specialist, a higher degree of skill is required of him than one who does not profess to be so qualified by special training and ability.

[150] Physicians are not held to a standard of perfection and are not responsible, at law, for every bad outcome a patient may have. A physician is not required to take all available actions nor make the correct diagnosis to meet the standard of care. See: Tacknyk v. Lake of the Woods Clinic, [1982] O.J. No. 170 (C.A.); Lapointe v. Hôpital Le Gardeur, 1992 CanLII 119 (SCC), [1992] S.C.J. No. 11; St. Jean v. Mercier, 2002 SCC 15, [2002] S.C.J. No. 17; Brics v. Dr. Stroz, [2002] O.J. No. 1089 (S.C.J.); Bafaro v. Dowd, [2008] O.J. No. 3474 (S.C.J.) aff’d 2010 ONCA 188, [2010] O.J. No. 979 (C.A.). The Court must determine what the state of medical knowledge was at the time of the alleged negligence and whether or not the physician acted reasonably in the context of the information available and the scientific knowledge at that time: ter Neuzen v. Kor, 1995 CanLII 72 (SCC), [1995] 3 S.C.R. 674. There is risk associated with virtually all treatments and surgeries and physicians are not the insurer of a patient’s health and well-being and are not held to have guaranteed that a particular outcome will be achieved. An adverse outcome for the patient does not mean that the physician is negligent: Hassen v. Anvari, 2003 CanLII 1005 (ON CA), [2003] O.J. No. 3543 (C.A.), leave to appeal to S.C.C. ref'd, [2003] S.C.C.A. No. 490; Carlsen v. Southerland, 2008 BCSC 1772.

[151] A plaintiff’s case which applies an outcome-based retrospective approach and attempts to work backwards from the results of the medical procedure or treatment to prove negligence is fundamentally flawed in law and contrary to admonitions in the case law. “Nothing is to be imputed to the defendant that is not clearly proved against him. Post hoc, ergo propter hoc has no place in our law:” Kennedy v. Jackiewicz, [2003] O.J. No. 1854 (S.C.J) at paras. 4-6; Gent v. Wilson, 1956 CanLII 128 (ON CA), [1956] O.R. 257 (C.A.) at p. 266, as cited in Wilkinson Estate v. Shannon, [1986] O.J. No. 625 (H.C.J.) at para. 6; Bafaro v. Dowd, [2008] O.J. No. 3474 (S.C.J.) at para. 26, aff’d Bafaro v. Dowd, 2010 ONCA 188, [2010] O.J. No. 979 (C.A.).

[152] In some physician negligence cases – but not the one at bar - the constituent elements may be proved with direct evidence. For an easy example, if a surgeon were to fail to remove a surgical tool that perforated an organ after the surgery, there would be direct evidence of a breach of a duty of care and causation of harm.

[153] In the immediate case, if the epidural injections administered by Dr. James in his exclusive procedure room had been filmed, all of Ms. Levac, the Class Members, and the Defendants would have direct evidence of what occurred, but the procedures were not filmed and there is no evidence that any witness actually remembers and can recount what happened, and thus the only evidence available to Class Members is circumstantial evidence from which inferences can be drawn.

[154] Before the Supreme Court’s decision in Fontaine v. British Columbia (Official Administrator), supra in circumstances in which there was no direct evidence of negligence, courts would invoke the doctrine of res ipsa loquitur to create an inference of negligence where an accident occurred that would not normally happen unless someone was negligent and where the defendant was in control of the conditions giving rise to the accident. In Fontaine v. British Columbia (Official Administrator), the Supreme Court of Canada said the doctrine has “expired.” Thus, in the case at bar, Dr. James accuses Ms. Levac of relying on a type of proof that was repudiated by the Supreme Court.

[155] The facts of the Fontaine case are a galaxy away from a physician’s negligence case. Mr. Fontaine and Mr. Loewen went missing after a hunting trip and their bodies were found, after a two-month search, in Loewen's badly damaged truck, which was found in a creek bed adjacent to a highway. There were no witnesses to the accident, and no one knew precisely when or how the accident happened, although there were theories about inclement weather, wet roads, bad road conditions, poor tires, and roaming animals. Mr. Fontaine’s widow sued the driver of the vehicle for negligence. All of the courts agreed that negligence was not proven. In the Supreme Court of Canada, Justice Major put to rest the doctrine of res ipsa loquitur. He stated at paras. 26-27:

26. Whatever value res ipsa loquitur may have once provided is gone. Various attempts to apply the so-called doctrine have been more confusing than helpful. Its use has been restricted to cases where the facts permitted an inference of negligence and there was no other reasonable explanation for the accident. Given its limited use it is somewhat meaningless to refer to that use as a doctrine of law.

27. It would appear that the law would be better served if the maxim was treated as expired and no longer used as a separate component in negligence actions. After all, it was nothing more than an attempt to deal with circumstantial evidence. That evidence is more sensibly dealt with by the trier of fact, who should weigh the circumstantial evidence with the direct evidence, if any, to determine whether the plaintiff has established on a balance of probabilities a prima facie case of negligence against the defendant. Once the plaintiff has done so, the defendant must present evidence negating that of the plaintiff or necessarily the plaintiff will succeed.

[156] Some of Canada’s leading tort law scholars, however, are of the view that, practically speaking, apart from semantics, nothing much has changed. In Halsbury's Laws of Canada - Negligence and other Torts (2016 Reissue), Allen M. Linden, Bruce Feldthusen, Louise Bélanger-Hardy, contributors, “HTO-254 Standard of proof” state:

It is clear that the Latin expression has been abandoned in all situations; but it is also clear that proof of the facts that once led courts to infer negligence will continue to do so, but without the use of the Latin phrase. The process of proof in future products cases will not be markedly different than before, except that the Latin words will be absent from the discussion. The older cases, therefore, may still be useful. In addition, it may be that the treatment of the evidence in the older products cases, that is, to shift the burden of disproof to the defendant, may still be done. ….

[157] The point is that triers of fact may draw factual conclusions of negligence based on circumstantial evidence but they may not infer negligence by assuming circumstantial evidence. In Mitusev v. General Motors, supra, Justice Edwards stated: "While res ipsa loquitur may be seen as a doctrine to have outlived its useful life, there can be no dispute that circumstantial or indirect evidence can, in an appropriate case, lead to the conclusion that the plaintiff's injury was caused by the defendant's negligence."

[158] In the context of a summary judgment motion, or a trial for that matter, the circumstantial evidence from which an inference of negligence may be drawn may shift the burden onto the defendant to offer an explanation for the accident that does not involve his or her breach of a duty of care. When circumstantial evidence permits an inference of negligence, the plaintiff may succeed in proving negligence unless the defendant offers an explanation to negate the inference of negligence: Hassen v. Anvari, [2001] O.J. No. 6085 (S.C.J.) at para. 10, aff'd 2003 CanLII 1005 (ON CA), [2003] O.J. No. 3543 (C.A.), leave to appeal to the S.C.C. refused [2003] S.C.C.A. No. 490; Austin v. Bubela, 2011 ONSC 1958 at para. 11; Chasse v. Evenson, 2006 ABQB 342 at paras. 60-61.

[159] In the immediate case, the foundational facts that I have described above called on Dr. James to explain how his patients became infected without a breach of duty of care on his part. To paraphrase Justice Dunphy in McDonald v. John Doe 2015 ONSC 2607 at paras. 24-29, which was a vehicular negligence case, finding the existence of a rebuttable presumption of negligence on the foundational facts as proved by Ms. Levac is not tantamount to resurrecting a retired doctrine; it is simply the drawing of inferences from facts, precisely what judges and juries have ever done and will necessarily continue to do. It is also not an example of any logical fallacy of reasoning.

[160] In my opinion, in the case at bar, it is appropriate to draw an inference of negligence, not based on the debunked doctrine of res ipsa loquitur or based on the logical fallacy of post hoc, ergo propter hoc but based on the circumstantial evidence that I have described as the foundational facts.

[161] The case at bar is distinguishable from Dickie v. Minett, 2014 ONCA 265, aff’g 2012 ONSC 4474, which case is useful in explaining the difference between the impermissible use of the doctrine of res ipsa loquitur and a permissible inference of negligence that calls for an explanation.

[162] In Dickie v. Minett, Mr. Dickie’s jaw was fractured during dental surgery, but his negligence action was dismissed and his argument on the appeal was that the trial judge erred in failing to infer negligence in the extraction of his wisdom tooth from the fracture of his jaw during the course of the surgery. Mr. Dickie said that the fracture of his jaw called for an explanation from the dentist, and that the dentist's reliance on his clinical notes and his usual practice was insufficient to demonstrate the exercise of reasonable care. The Court of Appeal rejected this argument. The Court noted that there was expert evidence that a patient’s jaw could break in spite of reasonable care and that Mr. Dickie’s expert had failed to consider the risk factors. The Court stated that although there remained cases in which circumstantial evidence can raise an inference of negligence that calls for an explanation from the defendant, Mr. Dickie had failed to show that the trial judge erred in concluding that the evidence did not reach that threshold.

[163] In contrast, in the immediate case, in my opinion, based the evidence of the foundational facts, Ms. Levac’s evidence went beyond the threshold and was sufficient to prove a breach of the duty of care.

[164] I, therefore, conclude and find as a fact that: (1) Dr. James had a duty of care to Class Members; (2) he breached his duty of care; and (3) general causation has been proven for all Class Members, as I shall next explain.

6. The Summary Judgment and the Class Action

[165] Depending on the nature of the case, a finding that the defendant breached his or her duty of care may entail that causation has also been proven. For example, if there was an airplane crash and the court held that defendant pilot breached his or her duty of care, then the injured and dead passengers would also have proven causation. In the immediate case, the finding that Dr. James breached his duty of care entails: (a) a finding of causation for those Class Members who were infected with the same bacteria that was colonized on Dr. James; and (b) a finding of general causation for the balance of the Class Members.

[166] There are two aspects to causation. The first aspect is “general causation,” which concerns the aspect of whether the defendant’s misconduct had the capacity to cause the alleged damage and the second aspect is “specific causation,” which concerns the aspect of whether the capacity to harm was actualized in the particular case: Wise v. Abbott Laboratories, Limited, 2016 ONSC 7275 at paras. 341-372.

[167] In the immediate case, the causation issue is whether it has been proven that Dr. James’ breach of his duty of care could cause his or her patients, the Class Members, to be infected by staphlococcus aureus. If this is proven, it would remain for the Class Members to prove that their specific infections of staphlococcus aureus were connected to having receiving an epidural injection from Dr. James.

[168] As noted by Justice Myers in Baghbanbashi v. Hassle Free Clinic, 2014 ONSC 5934, in many cases, general causation is not an issue and the case will turn on specific causation because general causation will be obvious. However, in other cases, general causation cannot be assumed and must be proven. Justice Myers stated at para. 9 of his decision:

9. Court decisions in tort cases usually do not mention general causation because it is often obvious. Evidence is not needed, for example, to prove that being hit by a moving car can cause broken bones. The issue in most cases is simply whether, in that particular case, the car accident in issue broke the plaintiff’s bones; i.e., whether there is specific causation. General causation is often assumed. In vaccination cases however, general causation cannot be assumed. Before a plaintiff shows that her particular injury was caused by the vaccination she received, she first must establish that the vaccine can cause that type of injury that she suffered. ….

[169] In the immediate case, there was no dispute that the purpose of the Clinic having an IPAC Practice was to safeguard patients from the harm of infections and it was not disputed that if the duty of care was breached this could be a source of harm to patients. The notion that medical procedures should be conducted in a sterile environment is a well and long-established idea and Dr. James was trained and was a trainer about this practice. The finding that Dr. James breached his duty of care entails that general causation of harm has been established. However, this does not rule out the prospect that in a given case, a patient’s infection was caused by a staphlococcus aureus or other bacteria not connected to the Clinic and Dr. James. The determination about whether a particular Class Member’s infection can be explained by other sources requires evidence on an individual by individual basis. This, however, is not true for the Class Members whose infections can be connected to the colony of staphlococcus aureus found on Dr. James and in his procedure room. In my opinion, for those Class Members, causation in both its aspects has been proven on the balance of probabilities.

[170] The result is that to perfect their claims, the Class Members connected to the breakout bacterial must quantify their damages and the balance of the Class Members must prove specific causation and the quantification of their damages at individual issues trials.

F. CONCLUSION

[171] For the above reasons, Ms. Levac’s action should be certified as a class action and she should be granted a partial summary judgment with the findings as set out above.

[172] There will have to be a case conference and perhaps motions to determine the procedure for the completion of the class action as it pertains to Dr. James and also as it pertains to the co-Defendants who did not participate in the summary judgment motion.

[173] If the parties cannot agree about the matter of costs, they may make submissions in writing beginning with Ms. Levac’s submissions within 20 days of the release of these Reasons for Decision followed by Dr. James’ submissions within a further 20 days.

Perell, J.

Released: December 9, 2016