



COURT OF APPEAL FOR ONTARIO

CITATION: Levac v. James, 2017 ONCA 842

DATE: 20171103

DOCKET: C63132 and C63619

Blair, Juriansz and Miller JJ.A.

BETWEEN

Anne Levac

Plaintiff (Respondent)

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.

Defendant (Appellant)

Darryl A. Cruz and Erica J. Baron, for the appellant

Paul Harte and Maria Damiano, for the respondent

Heard: April 24, 2017

On appeal from the judgment of Justice Paul M. Perell of
    the Superior Court of Justice, dated December 9, 2016 with reasons reported at
    2016 ONSC 7727.

B.W. Miller J.A.:

A.

OVERVIEW

[1]

A Toronto pain management clinic experienced a bacterial infection
    outbreak. Several patients became infected, including the respondent, Anne
    Levac, who fell severely ill after receiving epidural injections for pain
    management.  The appellant, Dr. Stephen James, an anaesthesiologist at the
    clinic, administered the epidural injections to Ms. Levac and other patients. Subsequent
    laboratory testing disclosed that Dr. James was colonized with the same strain
    of bacteria as six of the infected patients, including Ms. Levac.

[2]

Ms. Levac commenced an action against Dr. James, the clinic, the clinic nurses,
    and the clinic medical director. She alleged that Dr. James caused the outbreak
    by negligently implementing a substandard infection prevention and control
    practice.

[3]

Ms. Levac brought a motion seeking certification of a class action and a
    motion for partial summary judgment against Dr. James. Both motions were argued
    one after the other on the same day and the motion judge issued one set of
    reasons and one order disposing of both. The motion judge certified the class
    proceeding against all defendants and granted summary judgment against Dr.
    James, finding that he had 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 Dr. James, and general causation for
    the remainder of the class.

[4]

Dr. James appeals on two main bases. First, that the motion judge compromised
    procedural fairness when he certified and granted summary judgment on a formulation
    of the common issue that was different from the formulation that he had approved
    in an oral ruling when hearing the certification motion, immediately prior to
    hearing the summary judgment motion. Second, that the motion judge erred in
    finding that Dr. James breached his duty of care.

[5]

I would allow the appeal on the basis of the first issue. It is
    therefore unnecessary for me to address the second issue.

B.

BACKGROUND

[6]

Toronto Public Health (TPH) identified three cases of meningitis
    connected to the Rothbart Centre for Pain Care Ltd. (the Clinic).
    Consequently, TPH audited the Clinics infection prevention and control
    (IPAC) practices.

[7]

Healthcare practitioners develop IPAC practices to reduce the risk of
    infections. It is part of the professional responsibility of physicians to
    ensure that their IPAC practice is appropriate for any procedure that they undertake.
    Dr. James IPAC practice for administering epidural injections consisted of a 26-step
    procedure.

[8]

Through the audit, TPH investigators identified nine patients with
    serious infections requiring hospitalization who had received epidural
    injections performed by Dr. James at the Clinic between August 20 and November
    25, 2012. Eight of the nine infected patients tested positive for
staphylococcus aureus
, a pathogen that can cause life-threatening diseases.
    Six of the eight patients were found to have been infected with the same strain
    of
staphylococcus aureus
. Dr. James also tested positive for this
    strain. Seventeen other Clinic staff members were tested, and while five tested
    positive

for
staphylococcus aureus
, none of these infections
    matched the outbreak strain.

[9]

After Dr. James was informed that he was colonized with
staphylococcus aureus
, he stopped working and undertook decolonization
    treatment. He returned to work after testing confirmed that he was fully
    decolonized. He had been unaware of his infection, and did not know how it
    occurred or how long he had been colonized.

[10]

TPH
    prepared a summary of its investigation (the Public Health Report) which
    concluded there were multiple deficiencies in IPAC practice at the Clinic. The
    motion judge summarized the Public Health Reports key findings as follows: (1)
    Dr. James hand hygiene was not consistently or properly performed; (2) his
    alcohol-based hand rub routine lasted less than five seconds; (3) he touched
    surfaces after hand sanitizing but before wearing sterile gloves; (4) he used
    gloves that were too large for his hands; (5) he did not remove his wedding
    ring before procedures; (6) he applied his mask without performing hand
    hygiene; (7) he did not pinch the nose piece on his mask; (8) he did not wait
    for skin preparation to dry before inserting the needle into the epidural
    space; and (9) the sterile field used in his procedures was not appropriately
    covered or kept sterile.

[11]

The
    Public Health Report concluded that as a result of poor IPAC practice,
staphylococcus aureus
was transmitted from Dr. James to his patients.

C.

The Proceedings Below

[12]

Ms.
    Levac brought a negligence action against the clinic, Dr. James, and other
    clinic staff (the Defendants). In the proceedings below, she sought
    certification of the action as a class action. She also moved for partial
    summary judgment against Dr. James for breach of his duty of care.

The Positions of the Parties

[13]

Although
    none of the defendants opposed certification of the action, Dr. James and Ms.
    Levac disagreed as to the wording and scope of the common issues regarding
    breach of the duty of care. At the hearing of the certification motion, the
    motion judge considered the formulations suggested by each of them, and
    proposed a third formulation which was mutually acceptable to the parties. The
    summary trial then proceeded on the basis of the third formulation.

[14]

Both
    parties tendered expert evidence in support of their positions on the summary
    judgment motion. It should be noted that the TPH investigators who authored the
    Public Health Report did not provide affidavit evidence on the motion. The
    Public Health Report was appended as an exhibit to the affidavit of one of Ms.
    Levacs experts.

[15]

Ms.
    Levacs experts provided evidence indicating that the infection rate of the
    class members was significantly higher than would be expected, and that the
    high rate of infection could only be explained by a failure to use IPAC
    practice in accordance with the recognized standard of care.

[16]

The
    evidence from Dr. James experts was that his IPAC Practice was appropriate and
    consistent with the standard of care for physicians performing epidural
    injections.

The Motion Judges Decision

[17]

The
    motion judge certified the action as a class action, and granted partial
    summary judgment.

[18]

In
    his analysis of certification, the motion judge discarded the formulation of the
    breach of care common issue that he had certified at the certification hearing.
    Instead, he certified a fourth formulation, again of his own devising, but
    which the parties had no opportunity to consider. The motion judge assessed the
    merits of the summary judgment motion on the basis of the fourth formulation.

[19]

The
    motion judge granted summary judgment for Ms. Levac and the class members, finding
    that circumstantial evidence allowed him to conclude on a balance of
    probabilities that Dr. James breached his duty of care with respect to his IPAC
    practice.

[20]

The
    motion judge reasoned that the action was appropriate for summary judgment as the
    patients developed infections and neither party had any direct evidence about
    the acts or omissions that could explain why. Dr. James relied on evidence of
    his routine practice, and Ms. Levac had not been able to observe the
    injections. The motion judge concluded that the evidence adduced by Ms. Levac
    was sufficient to establish that Dr. James had breached his duty of care. That
    issue, therefore, did not need to be resolved at a trial.

[21]

The
    motion judge found that for those class members infected with the same strain
    of bacteria found on Dr. James, both general causation and specific causation
    were made out and they could proceed to quantify their damages. Other class
    members would need to prove specific causation and quantification of damages at
    individual issues trials.

D.

ANALYSIS

[22]

Dr.
    James appeals on two main bases.

[23]

First,
    he argues that he was denied procedural fairness when the motion judge reformulated
    the common issue certified at the hearing, and then certified and granted
    summary judgment on it, without providing the parties with notice or an
    opportunity to make submissions. The parties argued the summary judgment motion
    on the basis of the third iteration of the common issue, which the motion judge
    certified at the hearing.

[24]

Second,
    Dr. James argues that the motion judge erred in finding a breach of the duty of
    care, in the absence of any specific evidence on that issue from Ms. Levac. He
    argues that the motion judges analysis suffers from several flaws, including
    reliance on the summary of the Public Health Report, which was hearsay and
    inadmissible.

[25]

I
    agree with Dr. James that there was a procedural unfairness and for that
    reason, the appeal must be allowed and the matter sent back for a new
    certification motion. To provide full context for this conclusion, I will set
    out a procedural history of the certification of the common issue, before
    explaining why Dr. James was denied procedural fairness. Given that I would
    resolve the appeal on the basis of procedural fairness, it is unnecessary to
    address the further ground of appeal relating to the granting of summary
    judgment, since it will have to be argued afresh based upon the common issue as
    ultimately framed.

The Procedural History of the Common
    Issue

[26]

The
    common issue regarding breach of the standard of care initially proposed by Ms.
    Levac (Q1) was whether the Defendants breached the standard of care for
    infection control practices.

[27]

Dr.
    James objected to Q1 because it did not require a finding of
how
the
    standard of care had been breached. He also expressed concern that the question
    was worded too broadly, captured issues that would be better addressed in
    individual trials, and would result in an unworkable litigation procedure. He
    proposed an alternative (Q2):

(1)     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

(2)     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.

[28]

The
    motion judge, after hearing submissions from both parties, proposed a third
    formulation (Q3):

(1)     whether
    the defendants breached the standard of care required for infection prevention
    and control practices?; and

(2)     in
    what ways, if any, did the Defendants routine invariable IPAC practices breach
    the standard of care for infection control practices?

[29]

The
    parties agreed to this formulation. The motion judge made an oral ruling
    certifying Q3 as the statement of common issues regarding breach of the duty of
    care. The parties then made submissions on the summary judgment motion.

[30]

When
    the motion judge released his reasons on the summary judgment motion, Dr. James
    was surprised to find that the motion judge had replaced Q3 with a new Q4:

(1)

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?

[31]

Dr.
    James objects to Q4 for two substantive reasons. First, he argues that
    questions of performance of the IPAC practices are not truly common issues and therefore
    not suitable for resolution on a class-wide basis.

[32]

Second,
    Dr. James objects to the removal of the requirement to specify in what ways
    the IPAC practices breached the standard of care. He submits that Q4 requires
    only that the trier of fact affirm or deny that a duty of care was breached.
    This creates additional problems, he argues, in determining whether there is a
    causal connection between the breach and the injuries alleged across the class.

[33]

Dr.
    James, however, does not only object to the scope of the certified common
    issue. He also argues that the procedure followed by the motion judge 
    specifically, (1) certifying a question devised by the motion judge himself,
    (2) without the benefit of submissions from counsel on the proposed
    formulation, and (3) after the conclusion of the hearing of the summary
    judgment motion that proceeded under a different certified common issue  was
    procedurally unfair.

[34]

In
    oral argument, Dr. James stated that he would have contested the certification
    of the class action had he been presented with Q4 as the common issue, and
    argued the summary judgment motion differently.

[35]

The
    respondent advances three submissions to address Dr. James claim that he was
    denied procedural fairness. None of them provide a satisfactory response.

[36]

First,
    the respondent submits that a certification judge has discretion in formulating
    the wording of common issues and is not confined to wording proposed by the
    parties. The scope of this discretion, the respondent argues, must be assessed
    in light of the broader purposes of the
Class Proceedings Act
, which
    include promoting access to justice and fostering efficient use of judicial
    resources.

[37]

This
    submission, without more, does not answer whether the appellant was deprived of
    procedural fairness. I agree that a certification judge may, in some
    circumstances, depart from the wording of a common issue that the parties have
    agreed upon and proposed. The requirements of procedural fairness, however,
    impose limits on when and how that discretion may be exercised.

[38]

The
    relevant question, therefore, is not whether the motion judge had discretion to
    reformulate the common issue, but whether that discretion was appropriately
    exercised in this case.

[39]

The
    respondents second submission engages more directly with that central
    question. In the respondents view, the change between Q3 and Q4 was
    insignificant, a distinction without a difference that if anything narrowed the
    issues faced by Dr. James. Any procedural irregularity, therefore, caused Dr.
    James no prejudice. The respondent distinguishes
1250264 Ontario Inc. v.
    Pet Valu Canada Inc
, 2016 ONCA 24, 344 O.A.C. 222, leave to appeal
    refused, [2016] S.C.C.A. No. 105, where the motion judge injected a new theory
    of liability into the recast common issue, causing prejudice to the defendant.

[40]

I
    disagree with this submission, for two reasons.

[41]

First,
    it is instructive that the motion judge did not view his change to the question
    as a distinction without a difference. On the contrary, he clearly understood
    the new wording as capturing permutations of the duty of care issue absent
    from the three previous formulations advanced at the motion hearing. In his
    view, the new wording better captured the distinction between negligent
    performance and negligent design of the IPAC Practice. Whether it actually did
    so, without introducing issues not amenable to resolution on a class-wide basis
    or raising other concerns, was a question the parties ought to have been able
    to address through submissions to the motion judge.

[42]

Second,
    the degree of difference between Q3 and Q4 is not the only consideration
    relevant to assessing procedural fairness. In this case, the following factors
    provide additional support for Dr. James position:

(1)     the
    conduct of the proceedings: Dr. James reasonably expected that the motion judge
    would adhere to Q3 in his reasons for decision;

(2)     the importance
    of the common issue to the resolution of the action as a whole; and

(3)     the
    lack of any steps by the motion judge to address potential prejudice to Dr.
    James.

[43]

It
    is also significant that Dr. James may well have contested certification of the
    class proceeding had he known the certified common issue would be Q4. He was
    therefore deprived of the opportunity to contest not only Q4, but certification
    of a proceeding premised on Q4.

[44]

The
    respondents third objection is that the procedural fairness objection is moot:
    that any unfairness from lack of notice of the common issues was cured by the
    appeal process. On appeal, the argument goes, Dr. James had been made aware
    that Q4 was the common issue. He could therefore argue the appeal from summary
    judgment on that basis, and advance any objections to the wording of Q4 that he
    was unable to provide to the motion judge.

[45]

This
    argument is unsatisfactory. To put it simply, an appeal is not a trial
de
    novo
. The opportunity to argue an appeal with knowledge of the certified common
    issue does not cure the unfairness of arguing a summary judgment motion under a
    misapprehension about the common issue in question. Neither does the ability to
    contest the certified common issue on appeal provide an adequate remedy for the
    lack of opportunity to convince the motion judge against certifying that issue
    at first instance. It is crucial that litigants receive a fair process

when
    they initially argue a certification motion, particularly because a
    certification judges substantive

conclusions are not easily set aside
    on appeal:
Cassano v. The Toronto Dominion Bank
, 2007 ONCA 781, 87
    O.R. (3d) 401, at para. 23.

[46]

Accordingly,
    I conclude that Dr. James was deprived of procedural fairness in the
    proceedings below. He is entitled to a new hearing on certification and on
    summary judgment.

E.

DISPOSITION

[47]

I
    would allow the appeal, set aside the order for summary judgment and the order
    certifying the class action, and order a new hearing of the motion for
    certification and summary judgment before a different judge.

Released: RAB NOV 3 2017

B.W. Miller J.A.

I agree. R.A. Blair
    J.A.

I agree. R.G.
    Juriansz J.A.


