Canadian Lawyer

November/December 2019

The most widely read magazine for Canadian lawyers

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Page 17 of 71

FEATURE 18 Causation and standard of care issues lie at the heart of whether a class action is the preferable procedure THE ONTARIO Superior Court reaffirmed that infectious outbreaks are well suited to class actions, as well as the use of subclasses, when it approved a certification amendment and de-certification motion in a medical infectious outbreak case. In Levac v. James, 2019 ONSC 5092, Superior Court Justice Edward Morgan com mented t hat "cer t if ic at ion under the CPA is not a particularly high hurdle" in denying a defence motion to have the class action decertified. Between 2010 and 2012, the Rothbart C entre for Pa in Ca re Ltd., a Toronto pain management clinic, exper ienced a bacterial infection outbreak. Dr. Stephen James, an anaesthesiologist at the clinic, a d m i n i s t er e d e pidu r a l i nje c t ion s t o A nne Levac and other patients, and was found by Toronto Public Health to have had his hands colonized by methicillin- sensitive staphylococcus aureus, a strain of ba c t er ia t hat is relat ively ra re i n Nor t h A mer ic a . The infec t ion c aused abscesses to form in and around the spinal column of several patients, including the representative plaintiff. The resultant class action was certified tw ice, says the plaintiff 's counsel, Paul Harte of Harte Law PC in Richmond Hill, Ont. Approaching trial, the plaintiff was attempting to amend the common issues. Plaintiffs at the start of a class action frequently suffer from a lack of information and may not be sure what the cause of their malady is, he says. The discovery process provides more information. "We learned that the doctor was aware of infections associated with his practice relatively early on . . . and this laid the foundation for a claim of breach of fiduciary duty," says Harte. Later, the plaintiff sought to amend her pleading to reflect the reality she said the discovery evidence revealed. James sought to de-certify the action, arguing that the discovery evidence showed there was insufficient commonality among the claims of the 21 class members, each of whom should sue as individuals. His counsel proposed that this be done in a joint action, "so that while each individual plaintiff would have to prove his or her case, there can be efficiencies in the trial process in the sense of having expert witnesses and the Defendants themselves testify only once," the judgment read. The case raised the question of whether statistical evidence with respect to rates of infection and evidence of James' infection prevention and control practices could amount to proof of causation and standard of care for the purposes of tort liability or whether the cause of each claimant's injury must be determined individually. The judge noted "conflicting evidence" as to whether James' practices were uniformly implemented for all of his patients and about the likely sources of the infections. These causation and standard of care issues gave rise to the plaintiff 's wish to expand the common issues and James' wish to decertify the proceeding as lacking commonality at all. After weighing the evidence, the judge decided that a class action was the preferable procedure. "In the case at hand, we were able to push the envelope," Harte says. Normally, a defendant might dispute the cause of FOCUS ON PERSONAL INJURY Class action proceeds against pain clinic

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