In the main action, the Plaintiff alleged that his mortgage agent and brokerage were negligent and liable negligent misrepresentation after the Plaintiff failed to close on the purchase of a property in Brantford, Ontario (the “Property”).  While the Plaintiff secured a suitable mortgage commitment from an institutional lender well in advance of the closing date, the mortgage proceeds were not advanced in time for the intended closing on June 28, 2018, or the extended closing date of July 13, 2018.  As a result, the Plaintiff sought to recover $11,000 in pecuniary damages for the forfeited deposits and associated fees following the failed purchase of the Property and $5,000 in aggravated damages.  The Plaintiff sued the mortgage agent and brokerage that assisted him with the transaction (the “Defendants”) for his financial losses.

The Defendants denied any liability in the main action and issued a Defendant’s Claim against our client (the “Third Party Brokerage”) alleging that one of its mortgage agents was solely responsible for assisting the Plaintiff with securing mortgage financing.  The Defendants asserted that any broker related failings were the responsibility of the Third Party Brokerage.

In turn, the Third Party Brokerage denied that they acted for the Plaintiff in connection with the proposed mortgage financing but, in fact, acted as the brokerage representing the lender.

The trial judge found there was no evidentiary basis for finding that the Defendants or the Third Party Brokerage were responsible for any act or omission that could be connected to the lender’s failure to finance the purchase in time for the original and extended closing dates.  Notably, the trial judge also found that the Plaintiff did not rely on the Third Party Brokerage or its mortgage agent in connection with the failed purchase or the lost deposits.

In the absence of sufficient proof to establish causation and a breach of the standard of care, the main action and the Defendants’ Claim were dismissed with costs to be determined.

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The class action arose from an infectious disease outbreak amongst patients receiving epidural injections administered by the defendant anesthesiologist, Dr. James, at the Rothbart Centre for Pain Care between January 1, 2010 and November 30, 2012. The outbreak was subsequently investigated by Toronto Public Health.

Justice Morgan held that there was no evidentiary basis to make a finding that any nurse fell below the standard of care in respect of their infection control practices or the manner in which they assisted Dr. James. Further, with respect to the allegation of a failure to report, Justice Morgan held that Dr. James could not offload his own professional responsibilities by accusing nurses, who assisted him in accordance with standard procedures and with whose performance and IPAC he consistently expressed satisfied, of failing to notice that he himself did not meet the standards expected of a doctor.

Overall, Justice Morgan found that the evidence against the nurses was “remarkably thin” and which amounted to “next to nothing”. As such, there was no sustainable legal claim against any of the nurses.

Justice Morgan however did find a breach of the standard of care by Dr. James for failing to use aseptic technique for each epidural procedure and also for failing to report, investigate and remediate all known infections to his patients.

Of particular note is the discussion on causation, which involved a “novel” approach in the context of collective claims. Plaintiff’s counsel took the position that in fulfilling the burden of proof there was no need for the plaintiff to present scientific evidence of the precise way in which the negligence of Dr. James contributed to those injuries. Instead, the question was more of a practical one in which inferences may be drawn, including from circumstantial evidence. In this case, Justice Morgan held that an inference could be drawn because the evidence of causation, while circumstantial, was overwhelming. The evidence demonstrated that the risk ratio of Dr. James’ epidural injections was increased substantially, thus presumptively proving causation for Class Members (subject, of course, to any evidence which might emerge in an individual trial rebutting this presumption).

Lastly, Justice Morgan found this case to be one which required the imposition of punitive damages. Dr. James had an obligation to report, investigate, and remediate these infections. His failure to do so amounted to a marked departure of a person in his position. While the exact quantification of damages will be determined during individual trials, a clear message of deterrence was vocalized for the medical profession as a whole.

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