Voula Kotoulas

This is an appeal in a class action concerning an infectious disease outbreak at a pain care centre.

The appellant, Dr. Stephen James, challenged the trial judge's findings of negligence, breach of fiduciary duty, and the application of the limitation period, as well as the award of punitive damages and costs.

The Court of Appeal upheld the trial judge's conclusions that Dr. James breached the standard of care by failing to consistently use aseptic technique and to report/investigate infections.

The court affirmed the use of statistical evidence to establish a rebuttable presumption of causation for the class, and found no error in the breach of fiduciary duty or the appropriateness of punitive damages.

The appeal on costs, including the order for Dr. James to pay the successful co-defendant nurses' costs, was also dismissed.

The plaintiff brought a class action against an anesthesiologist, a pain clinic, and its nursing staff following an outbreak of bacterial meningitis and epidural abscesses among patients who received epidural injections.

The court found that the anesthesiologist breached the standard of care and his fiduciary duties by failing to use proper aseptic techniques, failing to report and investigate infections, and misinforming patients about the risks.

The court drew an inference of causation linking the anesthesiologist's substandard infection prevention and control practices to the patients' infections.

The claims against the nursing staff were dismissed as there was no evidence they breached the standard of care.

The court also found the anesthesiologist's conduct warranted punitive damages.

The defendant Atrium brought a motion to amend its Statement of Defence and Crossclaim and to withdraw admissions made during pre-trial conferences regarding causation and the condition of the stairs where the plaintiff slipped and fell.

The plaintiff brought a cross-motion for judgment based on those admissions.

The court found that Atrium had made clear, binding admissions that the condition of the stairs caused the fall and that there was a breach of the standard of care.

Applying the three-part test for withdrawing admissions under Rule 51.05, the court denied Atrium's request because it failed to provide a reasonable explanation for the withdrawal.

The plaintiff's cross-motion for judgment under Rule 51.06(2) was also dismissed because the core issue of which defendant was the 'occupier' remained undetermined.

A case conference was held to set a schedule for the plaintiff's upcoming motion to amend pleadings and common issues in a certified class action.

The court established a timetable for the exchange of motion materials, expert reports, cross-examinations, and factums, and scheduled the motion to be heard on July 11 and 12, 2019.