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CIVIL PROCEDURE - Parties - Class or representative actions - Common interests and issues - Judgments and orders - Summary judgments - For part of claim - Appeals

Thursday, November 23, 2017 @ 8:30 AM  


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Appeal by the defendant James from order of partial summary judgment made against him in a class action for medical negligence. James, an anaesthesiologist employed by the defendant pain management clinic, administered epidural injections. An infectious disease outbreak was discovered at the clinic in November 2012. An investigation by Toronto Public Health ensued, revealing that nine patients of the 272 treated by James during the previous three months tested positive for staphylococcus aureus, six of them from a strain that matched the strain for which James also tested positive. The same bacteria was found on several surfaces in James' treatment room. The investigation found that James used gloves that were too big, failed to take off his wedding ring as required, touched non-sterile surfaces after sanitizing his hands, failed to sanitize his hands adequately, failed to maintain a sterile field for instruments, and that the environment in the treatment room was generally non-sterile. After he was informed that he was infected with the bacteria, James stopped working and undertook decolonization treatment. He had not been aware of his infection. Levac, one of James' patients during the outbreak, argued that James was responsible for the outbreak and negligent because he implemented a substandard infection prevention and control practice. She sought certification of the action as a class proceeding and sought summary judgment against James. The motion judge certified the class proceeding and granted summary judgment against James. He found that James breached his duty of care to members of the class, that specific causation had been established for those class members infected with the same strain of bacteria found on James and general causation for the remainder of the class. James appealed, arguing that the motion judge compromised procedural fairness when he certified and granted summary judgment on a formulation of the common issues that was different from the formulation that he had approved in an oral ruling when hearing the certification motion, and that he erred in finding that James breached his duty of care.

HELD: Appeal allowed. There was a procedural unfairness. After hearing submissions from the parties, the judge proposed a third formulation of the causation issue, with which the parties agreed, and he made an oral ruling certifying that as the statement of common issues regarding the breach of the duty of care. However, when he made his ruling on the motion for summary judgment, he had used a different statement of common issues. While a certification judge could depart from the wording of a common issue that the parties had agreed upon and proposed, the discretion to do so was not appropriately exercised in this case. The change in the statement of common issues raised concerns which the parties ought to have been able to address through submissions. In addition, James reasonably expected the judge to adhere to the statement of common issues he certified in his oral decision, the common issue was important to the resolution of the action as a whole and the judge did not take any steps to address potential prejudice to James. The ability to contest the common issue on appeal did not cure the unfairness or provide an adequate remedy for the lack of opportunity to convince the judge against certifying the issue at first instance.

Levac v. James, [2017] O.J. No. 5704, Ontario Court of Appeal, R.A. Blair, R.G. Juriansz and B. Miller JJ.A., November 3, 2017. Digest No. TLD-November202017009