In Stirrett v. Cheema, the Ontario Court of Appeal clarifies the law on causation when there has been a breach of a fiduciary duty – well, kind of.
The facts are as follows. Mr. Stirrett was a non-insulin dependent diabetic with a significant blockage in his blood vessel. He required an angioplasty. Prior to surgery he was recruited to participate in a clinical trial. The purpose of the trial was to study whether insulin use in non-insulin dependent diabetics would decrease the risk of a recurring blood vessel blockage following an angioplasty procedure. Mr. Stirrett agreed to participate. He signed a consent form. According to the consent, he was to be informed of new information that may influence in his willingness to continue in the study. As part of the study, he underwent an angiogram 6 months after his angioplasty. He died as a result of that angiogram.
Mr. Stirrett’s wife sued among others, the medical researcher (a physician) responsible for the study. She also sued the two doctors who conducted an angiogram, but the focus of this summary will be on the claim against the researcher.
Against the researcher, Mr. Stirrett alleged negligence and breach of fiduciary duty. The argument at trial was that there was important information that should have been presented to Mr. Stirrett but was not. If it had been, he would not have continued in the study and would not have had the angiogram that resulted in his death.
The jury found the researcher fell below the standard of care. But the jury found that the plaintiff did not prove casuation. The jury did not consider the fiduciary duty claim since it is an equitable claim which cannot be decided by a jury.
The trial judge found there was a breach of fiduciary duty. The trial judge also found that the plaintiff was not required to prove causation once a breach of fiduciary duty is established. There is strict liability. The trial judge relied upon the statement of the law by Justice McLaughlin in Norberg v. Wynrib, where she held:
Equity has always held trustees strictly accountable in a way the tort of negligence and contract have not (emphasis added)….The physician is pledged by the nature of his calling to use the power the patient cedes to him exclusively for her benefit. If he breaks the pledge, he is liable (emphasis added).
The Ontario Court of Appeal found the trial judge made a reversible error. Breach of a fiduciary duty does not result in strict liability. The plaintiff must still prove causation. The harm must flow directly from the breach or result from the breach.
In terms of causation, the difference between a breach of fiduciary duty claim and a negligence claim is that in the former, the plaintiff is only required to prove causation in fact. This means the plaintiff must prove that but for the fiduciary breach, the losses would not have been suffered.
By contrast, when there is a breach of the standard of care (negligence), the plaintiff must prove legal causation. Legal causation is causation in fact (i.e. proving the but for test) plus showing reasonable foreseeability of harm (i.e. the loss is not too remote) without an intervening act to break the causal chain. Further negligence law also incorporates other limiting factors on damages such as mitigation and contributory negligence.
Similarly, in contract law, the plaintiff must not only show causation in fact, but what was in the reasonable contemplation of the parties when they entered into their agreement. There are also limiting factors that apply to the damages assessment (e.g. mitigation).
In this case, causation in fact was not proven. The plaintiff therefore could not recover against the medical researcher.
So why is this case important? Well, first, strict liability does not exist in breach of fiduciary duty claims. Second, to prove a harm flowed from a breach of fiduciary duty, plaintiffs are only required to prove causation in fact. Plaintiffs do not have to concern themselves with reasonable foreseeability of harm (remoteness), intervening acts, mitigation, contributory negligence or other common law limiting factors on damages assessments.
But wait! There is a big, big caveat! Even in breach of fiduciary duty claims, judges may require plaintiffs to prove legal causation and may apply the other common law limiting principles relevant to damages. That will be permitted in order to treat similar wrongs similarly, but only where (1) the limits are necessary to achieve a fair and just result and (2) doing so does not raise any policy concerns.
