Court Of Appeal Applies But For Causation In Fiduciary Duty Claim

• Published date: 26 May 2020
• Law Firm: McCarthy Tétrault LLP
• Author: Canadian Appeals Monitor and Christine Wadsworth
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation, Professional Negligence

On May 6, 2020, the Ontario Court of Appeal released its decision in the Stirrett v. Cheema, 2020 ONCA 288, granting the appeal and dismissing the case against the defendant physician. The Court of Appeal confirmed that causation in fact or "but for" causation was required to establish liability for breach of fiduciary duty. The Court's decision will likely have implications beyond the medical negligence context for other claims based on fiduciary relationships.

Background

The case concerned the conduct of a clinical research study that was run out of a number of leading Canadian hospitals in the early and mid 2000s (the STREAM Study). The Study looked at the rate of restenosis in non-insulin-dependent diabetics with coronary artery disease who had received cardiac stents. The control group received regular medical care (including exercise and dietary recommendations) and the experimental group received insulin. The study required an angiogram to be performed approximately 6 months after the stent placement to check the level of restenosis. David Stirrett voluntarily agreed to participate in the study and was randomly placed in the control group. He was advised of all risks (including the 1 in 1000 chance of serious complications including death associated with the follow-up angiogram) and he signed consent forms. Mr. Stirrett suffered a serious complication during the follow-up angiogram and he died days later.

Mr. Stirrett's widow sued the two doctors who performed the angiogram and Dr. Strauss, the interventional cardiologist in charge of the Study at that hospital. Dr. Strauss was not involved in providing medical care to Mr. Stirrett. The Statement of Claim included claims in both negligence and fiduciary duty, with the same facts pleaded for both claims. The case focused on informed consent. Unlike most informed consent cases, there was no dispute that Mr. Stirrett had been informed of the relevant risks. But the plaintiff argued that he should have been provided with other information about the Study including the slow recruitment of participants, which lead to a reduction in the planned number of participants; and that the Heart and Stroke Foundation had decided not to fund future years of the Study, although they did allow the Study to keep the significant funds that had already been disbursed. The plaintiff also argued that a Data Safety Monitoring Board (DSMB) should have been established to monitor the study.

The case proceeded to a trial in...