Class action proceeds against pain clinic

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 commented that “certification 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 Centre for Pain Care Ltd., a Toronto pain management clinic, experienced a bacterial infection outbreak. Dr. Stephen James, an anaesthesiologist at the clinic, administered epidural injections to Anne 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 bacteria that is relatively rare in North America. The infection caused abscesses to form in and around the spinal column of several patients, including the representative plaintiff.

The resultant class action was certified twice, 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 the illness, he says, “but here, the expert evidence said that the rarity of this type of infection meant the chance that any class member got the infection from anywhere else is very, very low.”

On the basis of that evidence, says Harte, the court was willing to consider the possibility that that evidence might be sufficient to establish a prima facie case, meaning sufficient evidence to prove causation. “But the defendant could still argue that Mrs. Smith got it from her neighbour’s epidural clinic.”

Rather than having the expert testify at the beginning of each individual trial, “you get those decisions made at the common issues trial, and an expert would not need to testify at the beginning of each trial. So, this whole decision was entirely on a procedural matter.”

Another interesting issue in the case was the use of subclasses, Harte says. The Class Proceedings Act allows a subclass to be defined so that common issues are only common to some of the class members. In this case, he says, the defence was going to argue that a certain number of patients should have brought their lawsuit sooner. But, he says, the lawsuit was brought in September 2014, which stopped the clock from running. Anyone who had a procedure prior to that could not have a limitation argument, but someone who had an injection more than two years before the claim was filed faced a potential limitation defence.

“The test for limitation is at a very high level when you knew or ought to have known of underlying negligence,” he says. “And so we say that there are arguments common to a subclass, which can be dealt with in class proceeding. So, for example, if the doctor is found negligent, on the basis of a breach of fiduciary duty there, they would have to know when the doctor knew about the various infections. And the doctor’s evidence was that he didn't tell anybody.

“The Class Proceedings Act is one tool where we can find economy. So, here, sub-classes were set up for common issues, and the limitation period is one example of that.”

Paul Miller, a plaintiff-side personal injury lawyer in Howie Sacks & Henry LLP in Toronto, says he found the decision “significant in that a court does not want to be the finder of fact at certification. . . . The judge [here] says, ‘The real test of this methodology will come at trial.’ That shouldn’t be done at certification, because you’re not having a full-blown examination-in-chief and cross-examination.”

The decision “is also is a great demonstration of the flexibility of the class action process,” says Harte. “And that is particularly with respect to common issues, because that's what the case is predominantly about. It reaffirms that common issues can be refined, added, deleted, to reflect the development of evidence that develops through an action.”