Case: Levac v. James, 2017 ONCA 842 (CanLII)

Keywords: Class Actions; Certification Proceedings; Staphylococcus Aureus


A Toronto pain management clinic (Rothbart Centre for Pain Care Ltd.) experiences a bacterial infection outbreak. Dr. Stephen James, an anaesthesiologist at the clinic, administers epidural injections to Ms. Anne Levac and other patients. Subsequent laboratory testing discloses Dr. James is “colonized” with staphylococcus aureus. Several patients, including the respondent, Anne Levac, become ill – her, “severely ill”.

Following an audit of the clinic by Toronto Public Health, a report finds:

  • James’ hand hygiene was not consistently or properly performed;
  • touched surfaces after hand sanitizing but before wearing sterile gloves;
  • used gloves that were too large for his hands;
  • did not remove his wedding ring before procedures; and
  • did not wait for skin preparation to dry before inserting the needle into the epidural space. (See complete list at para. 10).

The Public Health Report concludes that, as a result of poor hygiene practice, Dr. James transmitted infection to his patients. Ms. Levac commences an action alleging Dr. James caused the outbreak. The Motion Judge issues one set of reasons and one order disposing of both a motion seeking certification of a class and a motion for partial summary judgment against Dr. James.

The Appellant Dr. James appeals on two bases:

  1. 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 he had approved in an earlier oral ruling; and
  2. That the Motion Judge erred in finding that Dr. James breached his duty of care.

The Court of Appeal allows the appeal on the basis of the first issue, finding that there is procedural unfairness in reformulating the common issue certified (and then granting summary judgment on it) without first providing an opportunity for the parties to make submissions.


The History of the Common Issue Question

The Appellant Dr. James objected to the procedure followed by the Motion Judge on the basis that the common issue question was devised by the motion judge himself without the benefit of submissions from counsel and after the conclusion of the hearing of the summary judgment motion.

Initially, the Motion Judge, after hearing the submissions of counsel for both parties, proposed this formulation:

  • whether the Defendants breached the standard of care required for infection prevention and control practices; and
  • in what ways, if any, did the Defendants’ routine invariable IPAC (infection prevention and control) practices breach the standard of care for infection control practices? (See para. 28).

Despite the parties having agreed to this formulation, when the Motion Judge released reasons on the summary judgment motion, he replaced it with the following:

  • 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? (See para. 30).

Analysis & Conclusion

The Court of Appeal determined that, while Motions Judges are entitled to some latitude and discretion in formulating common issues, the relevant question is “…whether that discretion was appropriately exercised in this case” (See para. 38). [So much for standard of review/palpable and overriding error standard?]

Citing Cassano v. The Toronto Dominion Bank, 2007 ONCA 781 (CanLII), 87 O.R. (3d) 401, at para. 23, the Court of Appeal stated it is crucial litigants receive a fair process on certification motions – particularly because a certification judge’s conclusions are not easily set aside on appeal. (See para. 45).

In this case, the Court of Appeal found it significant that the Motion Judge did not view his change to the question as a “distinction without a difference” and that “…the parties ought to have been able to address” this distinctive formulation. (See para. 41).

The Court of Appeal concluded Dr. James was deprived procedural fairness and, as such, is entitled to a new hearing on both summary judgment and certification. (See para. 46).

Counsel for the Appellant: Darryl Cruz and Erica Baron (McCarthy Tetrault, Toronto)

Counsel for the Respondent: Paul Harte and Maria Damiano (Harte Law, Richmond Hill)

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