2017 ONSC 2280, 2017 ONSC 2280

CITATION : Levac v. James, 2017 ONSC 2280 COURT FILE NO.: 621/16 DATE: 20170411 SUPERIOR COURT OF JUSTICE – ONTARIO RE: 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/Moving Party BEFORE: MARROCCO A.C.J.S.C.

COUNSEL: Paul Harte, Maria Damiano and Michal Kartuz , for the Plaintiff/Respondent Darryl A. Cruz, Erica J. Baron and Eric Pellegrino , for Stephen Rose James (Defendant/Moving Party) HEARD: IN WRITING Endorsement: lEAVE TO aPPEAL certification order [ 1 ] Dr. Stephen Rose James moves for leave to appeal the portions of the Motion Judge’s order dated December 9, 2016, which certified this proceeding as a class action and defined the issues common to all class members.

Background [ 2 ] The proceeding that resulted in the impugned order is described in the affidavit of Eric Pellegrino who, along with his colleagues, acts as counsel for Dr. James. The proceeding before the Motion Judge was not recorded and, as a result, Mr. Pellegrino, who was present on the motion, provided an affidavit describing what happened. [ 3 ] The respondent objects to the admissibility of Mr. Pellegrino’s affidavit. I recognize that, as a rule, a lawyer may only give affidavit evidence concerning formal or uncontentious matters in a proceeding in which the lawyer acts as counsel.

I am satisfied, however, that I should admit Mr. Pellegrino’s affidavit. He was not cross-examined on it. The area that is contentious is Mr. Pellegrino’s statement that the Motion Judge made an oral ruling defining the common issues. [ 4 ] The purported oral ruling is not revealed in the language of the decision itself and is disputed by the Plaintiff/Respondent. In receiving Mr. Pellegrino’s affidavit, I am not bound by his assertion that the Motion Judge made an oral ruling.

Unfortunately, there is no transcript, and affidavit evidence from someone present at the hearing is the only way that the Moving Party can describe the circumstances surrounding this application for leave. [ 5 ] In October 2016, the Motion Judge heard the following two motions brought by the representative Plaintiff/Respondent, Ms. Levac: 1. A motion for certification of the action as a class proceeding, and 2. A motion for partial

summary judgment against Dr. James. [ 6 ] The motions were heard on October 26 and 27, 2016. The motion for certification was heard on October 26, 2016, followed immediately by the motion for partial

summary judgment, which was heard on October 26 and 27, 2016. [ 7 ] The acronym “IPAC,” used throughout these reasons, refers to infection prevention and control practices. [ 8 ] In the material before the Motion Judge, Dr. James explained his IPAC practices and claimed that he performed these practices invariably each time he administered an epidural injection. [ 9 ] On the certification motion, certification was not opposed; rather, the parties disagreed about the wording of the breach of the standard of care common issue.

The Plaintiff/Respondent suggested the following wording: • Whether the Defendants owed a duty of care to the class members to maintain infection control practices; • Whether the Defendants breached the standard of care for infection control practices; and • Whether the Defendants’ conduct was sufficient to attract punitive damages?

[ 10 ] Counsel for Dr. James submitted that the Plaintiff/Respondent’s wording, related to whether the breach of the standard of care, was too broad and proposed the following alternative formulation: • 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 • 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? [ 11 ] At the hearing of the motion, counsel for Dr.

James proposed another version of the breach of the standard of care common issue : • 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 Practice breach the standard of care for infection control practices? [ 12 ] After hearing submissions from both parties, the Motion Judge suggested an additional question of his own formulation, namely: • In what ways, if any, did Dr.

James’ routine invariable IPAC Practice breach the standard of care for infection control practices? [ 13 ] The Moving Party states that the parties accepted the Motion Judge’s proposal. [ 14 ] The Moving Party indicates that the Motion Judge then issued an oral ruling defining the common issues as follows: • Whether the Defendants owed a duty of care to the class members to maintain infection control practices; • 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 practices breach the standard of care for infection and control practices? [ 15 ] The Plaintiff/Respondent disagrees that the above issues were declared common issues in an oral ruling.

The Plaintiff/Respondent submits at paragraph 4 of her factum that they were “comments made during the hearing.” In addition, the Plaintiff/Respondent indicates that the appeal is from the Motion Judge’s order, not his comments during the hearing. [ 16 ] The Motion Judge reserved judgment on the certification of the common issue concerning punitive damages.

The Motion Judge ultimately determined, in the ruling issued December 9, 2016, that whether to order punitive damages was “a proper common issue and may be certified.” [ 17 ] With the motion for certification complete, counsel for the Plaintiff/Respondent began submissions on October 26, 2016 concerning the motion for

summary judgment. As indicated, the proceedings with which we are concerned did not conclude until the next day, on October 27, 2016. On that day, counsel for Dr. James provided the Motion Judge with a document recording the wording of three common issues: the two proposed by the Plaintiff/Respondent and the one proposed by the Motion Judge. That document is Exhibit A to Mr. Pellegrino’s affidavit.

All submissions before the Motion Judge were completed on October 27, 2016. [ 18 ] As indicated, when the Motion Judge released his decision on December 9, 2016, it became clear that, following the hearing of the motion, His Honour decided that he was not satisfied with the breach of the standard of care portion of the common issues as discussed at the motion hearing and, as a result, amended (or alternatively “recast”) that portion, on his own motion which referred to a breach of the duty of care; namely: • 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? [ 19 ] This amendment was material, as suggested by the Motion Judge’s statement at para. 78 of the written reasons: After reflecting on all these choices for the standard of care issue, I have concluded that none of them are satisfactory.

Employing the theoretical or doctrinal scheme or methodology of class proceedings, while I conclude that there is a common issue about the duty of care, there is no basis in fact for any of the above duty of care issues as they have been expressed.

As currently drafted, the proposed common issues, including the version that I proposed at the hearing, do not respond to the common factual exigencies of this particular class action. [Emphasis added.] Analysis [ 20 ] Under s. 30(2) of the Class Proceedings Act, 1992 , S.O. 1992, c. 6, a “party may appeal to the Divisional Court from an order certifying a proceeding as a class proceeding, with leave of the Superior Court of Justice as provided in the rules of court.” [ 21 ] Despite the inability of the Plaintiff/ Respondent and the Moving Party to agree that the questions in Exhibit A were found to be common issues, the fairness of the procedure leading to the order certifying the Plaintiff/Respondent’s action as a class proceeding is an issue that may be appealed pursuant to s. 30(2). [ 22 ] Rule 62.02(4) of the Rules of Civil Procedure , R.R.O. 1990, Reg. 194 outlines the grounds on which leave may be granted:

(4) Leave to appeal shall not be granted unless,

(

a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and itis, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or (

b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appealinvolves matters of such importance that, in his or her opinion, leave to appeal should be granted. The Breach of the Standard of Care Common Issue [23] The Moving Party submits that the wording of the “duty of care” common issue, in the December 9, 2016 certification orderwas not proposed by the parties and was not raised by the Motion Judge at the hearing of the motion.

The Moving Party complains that,as a result, he was not afforded the opportunity to consider or argue the appropriateness of the wording of the amended duty of carecommon issue. [24] The correctness of the procedure followed on the motion is open to very serious debate. Specifically, the Court of Appeal hadoccasion to consider an analogous situation in 1250264 Ontario Inc. v. Pet Valu Canada Inc., 2016 ONCA 24, leave to appeal refused,[2016] S.C.C.A. No. 105.

In that case, the Motion Judge amended a common issue on his own initiative following the completion of asummary judgment motion without advising Pet Valu that he proposed to do so and without affording Pet Valu the opportunity to makesubmissions.

The Court of Appeal held that the Motion Judge erred in doing so because he gave judgment on an issue that was nevercertified in a way that was fundamentally unfair to Pet Valu: see Pet Valu Canada Inc., at para. 49. [25] The Plaintiff/Respondent attempts to distinguish Pet Valu Canada Inc. on the basis that it was an appeal from a motion forsummary judgment, not certification, However, from a review of Pet Valu Canada Inc., it appears that the Motion Judge in that case didread additional language into one of the common issues on the

summary judgment motion: see Pet Valu Canada Inc., at paras. 25-26. [26] As a result, the correctness of the procedure here is open to very serious debate. [27] Whether the Motion Judge orally decided the wording of the common issues, at the hearing of the certification motion or not,the question of the procedure to be followed before a material change is made to the wording of a common issue is a matter ofimportance to class action proceedings generally. It is, therefore, a legal question of importance that extends beyond the interests of theseparties and affects the development of the law in class proceedings litigation, more generally. [28] I appreciate that the

summary judgment motion was argued based on wording discussed during the argument of the motionand then decided upon the amended or recast wording. The portions of the December 9, 2016 order granting

summary judgment arebefore the Court of Appeal, and leave cannot be granted to the Divisional Court on that aspect of the order. [29] Accordingly, leave to appeal is granted with respect to paragraph 5(

b) of the Motion Judge’s order dated December 9, 2016which provides as follows: 5. This Court orders that the issues raised in the Amended Amended Statement of Claim which are common to all Class Members are as follows: (

b) Did any Defendant breach his, her, or its duty of care with respect to the design and/or performance of the Defendants' invariableIPAC Practice?; Punitive Damages Common Issue [30] The Moving Party also seeks leave to appeal the Motion Judge’s decision that whether the Defendants' conduct was sufficientto attract punitive damages is an issue common to all class members. The Motion Judge had reserved on this issue and dealt with it in hisDecember 9, 2016 written reasons. [31] The issue of punitive damages is common to the class members.

For example, there was evidence from one of the class actionPlaintiffs’ experts that Dr. James did not try to identify the source of the infection after the first serious infection was brought to hisattention. This conduct, if proven, would be common across the class. In addition, at least three other class actions involving an outbreakof infection have been certified in Ontario with punitive damages as a common issue: see Anderson v. Wilson (1999), (ON CA), 44 O.R. (3d) 673 (C.A.), leave to appeal refused, [1999] S.C.C.A. No. 476; Rose v. Pettle (2004), 43 C.P.C. (5th) 183 (Ont.S.C.J.); and Healey v.

Lakeridge Health Corp. (2006), 38 C.P.C. (6th) 145 (Ont. S.C.J.). [32] The Moving Party has failed to meet the test for leave to appeal with respect to the certification of the punitive damagescommon issue. Even if there were reason to doubt the correctness of the Motion Judge’s decision – which in my view there is not – theissue raised is important to the parties, but it does not extend beyond their interests. [33] Accordingly, leave to appeal the punitive damages portion of the Motion Judge’s order is refused.

Conclusion [34] I appreciate that the parties have agreed on the quantum of costs – namely, $17,500, inclusive of disbursements and HST.However, both parties had some success on this application and, accordingly, there will be no order concerning costs.

MARROCCO A.C.J.S.C. Date: April 11, 2017