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FOR TORTS - Direct casual connection or link - Breach of fiduciary duty

Thursday, June 11, 2020 @ 9:07 AM  


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Appeal by the defendant Strauss finding him liable for damages for breach of fiduciary duty. The respondent’s husband died because of complications that arose during an angiogram he underwent as part of his participation in a clinical research trial. The respondent sued the two doctors who performed the angiogram on her husband and the appellant, the medical researcher who headed up the clinical research trial at the hospital where the angiogram was performed in negligence and for breach of fiduciary duty. The jury found the appellant breached the standard of care of a reasonable and prudent principal investigator by not reducing the sample size in the protocol, not updating the consent form with the new reduced sample size and by not submitting a protocol deviation. The jury found, however, that the respondent did not prove that, but for the particulars of the breach of the standard of care, her husband would not have undergone the angiogram that resulted in his death. The trial judge found that the appellant, as a medical researcher, owed and breached an ad hoc fiduciary duty to the husband, as a participant in a clinical research trial and concluded that a finding of fiduciary duty and a breach of that duty obviated the need to consider the issue of causation in determining the respondent’s entitlement to compensation for breach of fiduciary duty.

HELD: Appeal allowed. Action dismissed. The respondent was not entitled to compensation because the breach did not cause the husband to undergo the angiogram that led to his death. The trial judge misstated the law regarding the role of causation in cases involving a breach of fiduciary duty. For compensation to be awarded for breach of fiduciary duty, the plaintiff must establish that the defendant’s breach caused the plaintiff’s loss. There was no causal link between the appellant’s breach and the angiogram that led to the husband’s death. The jury’s determination with respect to “but for” causation in the negligence claim was determinative. The claims against the appellant for breach of fiduciary duty and breach of the standard of care of a principal investigator in this case were based on substantially the same conduct. The jury’s conclusion that there was no “but for” causation between the appellant’s breach of the standard of care as a principal investigator and the husband’s decision to undergo the angiogram could only mean that the jury must have concluded that, notwithstanding the breach of the appellant’s standard of care, in the ways they had identified, the study would have continued, and the husband would not have ceased his participation and would have still undergone the angiogram. The same issues were part of the causation analysis when the cause of action was breach of fiduciary duty. The fact that the husband would have undergone the angiogram despite the appellant’s breach of fiduciary duty broke the chain of factual causation in the fiduciary duty claim, just as it did in the negligence claim. The onus was on the respondent to establish that the appellant’s breach was the cause in fact of the respondent’s loss.

Stirrett v. Cheema, [2020] O.J. No. 2000, Ontario Court of Appeal, A. Hoy A.C.J.O., K.M. van Rensburg and L.B. Roberts JJ.A., May 6, 2020. Digest No. TLD-June82020007