COURT OF APPEAL FOR ONTARIO

CITATION: Stirrett v. Cheema, 2020 ONCA 288

DATE: 20200506

DOCKET: C65848

Hoy A.C.J.O., van Rensburg and
    Roberts JJ.A.

BETWEEN

Karen
    Stirrett

Plaintiff (Respondent)

and

Asim Nazir Cheema, Tej Narendra
    Sheth,
Bradley Strauss

Defendants (
Appellant
)

William D. Black and Christine
    Wadsworth, for the appellant

Gavin MacKenzie, Brooke MacKenzie,
    Richard Bogoroch and Toby Samson, for the respondent

Barbara Legate, for the intervener, the
    Ontario Trial Lawyers Association

Jeremy Opolsky and Alexandra Shelley,
    for the intervener, the Canadian Cancer Trials Group

John Adair and Jordan V. Katz, for the
    intervener, the Canadian Cardiovascular Research Collaboratory

Heard: October 10, 2019

On
    appeal from the judgment of Justice Grant R. Dow of the Superior Court of
    Justice, dated August 9, 2018, with reasons reported at 2018 ONSC 2595.

By the Court:

I

OVERVIEW

[1]

Tragically, David Stirrett died on February 12,
    2005 as a result of complications that arose during an angiogram he underwent
    as part of his participation in a clinical research trial. Karen Stirrett, the
    respondent, sued the two doctors who performed the angiogram on her husband.
    She also sued the appellant, Dr. Bradley Strauss, the medical researcher who
    headed up the clinical research trial at the hospital where the angiogram was
    performed.
[1]

[2]

This appeal raises two main issues: first,
    whether the trial judge erred in finding that the appellant, as a medical
    researcher, owed and breached an
ad hoc
fiduciary duty to Mr. Stirrett,
    as a participant in a clinical research trial; and, second, whether the trial
    judge erred in accepting that causation was remove[d]  from the analysis in
    determining the respondents entitlement to compensation for breach of
    fiduciary duty.

[3]

We decline to decide the first issue. The
    research interveners submissions had the effect of framing the
ad hoc
fiduciary duty issue differently on appeal than how it was argued before the
    trial judge. While we acknowledge that the purpose of the interveners submissions
    was to present a different perspective, their arguments would require us to
    make determinations with respect to an issue not squarely argued at trial,
    namely whether the trial judge erred in failing to consider whether the
    appellant undertook to act in Mr. Stirretts best interests. Given our conclusion
    on the causation issue, it is not necessary for us to determine this issue.

[4]

Even if the appellant owed Mr. Stirrett an
ad
    hoc
fiduciary duty and breached that duty in the manner found by the trial
    judge, the trial judge erred by not taking into account causation and awarding
    damages for the breach. As we shall explain, the respondent was not entitled to
    compensation because the breach did not cause Mr. Stirrett to undergo the
    February 2005 angiogram that led to his death. Accordingly, we allow the appeal.

II

THE BACKGROUND

(1)

The
Stent Restenosis and Metabolism
Study

(a)

The
    recruitment of Mr. Stirrett

[5]

Mr. Stirrett was a 54-year-old man who was a non-insulin
    dependent Type II diabetic. He began to have chest pain and shortness of breath
    in early 2004 and was referred for an angiogram. An angiogram uses x-rays and
    contrast dye to view blood vessels supplying the heart. The angiogram revealed
    a 90 percent blockage, or stenosis, of his left circumflex artery and he was
    scheduled to undergo an angioplasty at St. Michaels Hospital (the Hospital)
    in Toronto four days later, on June 11, 2004.

[6]

That day, before the successful angioplasty, Mr.
    Stirrett was recruited to participate in the Stent Restenosis and Metabolism
    Study (the Study).

(b)

An overview
    of the Study

[7]

The Study was a clinical trial examining whether
    the use of insulin to control glucose levels in non-insulin dependent diabetics
    with coronary artery disease would reduce restenosis (the recurrence of
    stenosis  the narrowing of a blood vessel) after balloon angioplasty or
    stenting. Restenosis results in restricted blood flow, occurs at a higher rate
    in diabetics, and is particularly difficult to treat.

[8]

Study participants were randomized into either the
    control group or the experimental group. The control group, of which Mr.
    Stirrett was a part, received best medical care, including exercise and
    dietary recommendations, and the experimental group received insulin. For
    medical research purposes, all participants would have a follow-up angiogram
    six months after the initial procedure to see how much restenosis had occurred.

[9]

The Study operated at seven hospitals throughout
    Canada. The appellant, an interventional cardiologist, was the Studys principal
    investigator at the Hospital.

(c)

The
    Tri-Council Policy Statement

[10]

The medical researchers conducting the Study
    were required to comply with the Tri-Council Policy Statement: Ethical Conduct
    for Research Involving Humans (the Policy), a policy adopted by the Canadian
    Institutes of Health Research, the Natural Sciences and Engineering Research
    Council of Canada, and the Social Sciences and Humanities Research Council of
    Canada. The Policy describes standards and procedures governing research
    involving human subjects. Among other things, the Policy requires that research
    be overseen by a Research Ethics Board (REB) and imposes disclosure obligations
    on researchers. It stipulates that [r]esearchers shall provide, to prospective
    subjects  full and frank disclosure of all information relevant to free and informed
    consent and that participants shall be given continuing and meaningful
    opportunities for deciding whether or not to continue to participate.

(d)

Changes to the on-going
    Study

[11]

The REB at each participating hospital was
    required to approve the Study and, on an annual basis, to approve its
    continuation. The REB at the Hospital first approved the Study in February 2002
    and annually approved its continuation during the relevant period. The protocol
    for the Study, provided to the REB, described a planned recruitment of 240
    patients. While Data Safety Monitoring Boards (DSMB) are not mandatory, the
    protocol also provided that a Data and Safety Monitoring Committee (to be
    named) ... will oversee the progress of the trial and monitor safety of the
    intervention.

[12]

For various reasons, the Study had difficulty in
    recruiting the planned number of participants, which had an effect on the Studys
    funding. The Heart and Stroke Foundation of Ontario (the Foundation), which
    had granted funding to the Study for a three-year period, advised in September
    2003 that it would not release new monies corresponding to the third year of
    the Study (2003-2004) due to the Studys shortfall in recruiting participants.
    The Foundation permitted the Study to retain the unspent funds, totalling
    $171,942, that were already released to it and to use them for the duration of
    the grant year ending June 30, 2004. Mr. Stirrett was not advised of this
    change in funding.

[13]

The appellant and other researchers involved in
    the Study were of the view that the Study should continue until it reached 100
    participants. The appellant disagreed with two research colleagues who felt the
    REBs at their respective hospitals should be advised of both the change in the
    intended number of participants and the Foundations decision not to release
    additional funds. In the end, the appellant did not advise the REB at the
    Hospital of those changes. However, the Hospitals REB was aware of the slower
    than hoped for enrolment. In the annual report to the Hospitals REB, dated
    February 9, 2004, the appellant reported that there were 55 participants
    enrolled in the Study. He explained that [e]nrollment has been slower than
    anticipated at the start of the study however the sponsor has included more
    sites and enrollment is now steadily increasing, and that [r]ecruitment has
    been slower than anticipated due to the fact that some patients live too far
    away to participate in follow-up or are reluctant to inject themselves with
    insulin. All of the hospitals continued to participate in the Study.

[14]

The DSMB contemplated by the protocol was not
    established. The appellants evidence at trial was that this was because the
    concern about hypoglycemic episodes that motivated the provision for the DSMB never
    materialized. The REB at the Hospital was not advised of the failure to
    establish a DSMB.

(e)

The Consent Form

[15]

Mr. Stirrett signed a consent form when he enrolled
    in the Study on June 11, 2004 (the Consent Form). The Consent Form played a
significant role at trial.

[16]

The Consent Form indicated that it contained all
    the relevant information for Mr. Stirrett to decide whether to participate in
    the Study. The Consent Form also explained that [y]our doctor will inform you
    of any new information about the study that might develop during the course of
    this research and might influence your willingness to participate in the study
    and that you may discontinue participation at any time during the study
    without penalty.

[17]

The Consent Form identified the sponsor of the
    Study as the Foundation. It described the Study as a study of about 240
    patients similar to yourself, although at the time that Mr. Stirrett signed the
    Consent Form, the number of planned participants had already been reduced.

[18]

The Consent Form explained that the follow-up
    angiogram at six months was not part of a regular clinical practice, but rather
    was part of the Study. It also stated that there was a one in one thousand risk
    of a serious complication, such as heart attack, stroke, or death, from an
    angiogram. Mr. Stirrett was also informed of the risks associated with the
    follow-up angiogram on other occasions, including when he signed a further
    consent form prior to undergoing the procedure.

[19]

The Consent Form stated that [t]he treatment
    may or may not be of personal benefit to you but the information gathered from
    the study will be very important in discovering new treatments in people like
    yourself, and [i]n addition, you may benefit from the follow-up angiogram and
    ultrasound performed at 6 months post-angioplasty which is not part of the
    routine examination.

(f)

The follow-up
    angiogram

[20]

The follow-up angiogram contemplated by the
    Study was performed on February 10, 2005.

[21]

The respondent testified that her husband was
    again experiencing chest pain in the months before the follow-up angiogram. He
    had begun carrying nitroglycerin spray with him at all times, using it when he
    had chest pain. She also testified that both he and she would have wanted to
    find out the cause of the pain. It was common ground that the angiogram was a diagnostic
    tool to discover the cause of Mr. Stirretts chest pain.

[22]

Tragically, Mr. Stirrett died on February 12,
    2005 from complications which arose during the follow-up angiogram. The
post
    mortem
examination confirmed that Mr. Stirrett had experienced very
    significant restenosis.

(g)

The
    publication of the Study

[23]

The Study continued following the death of Mr.
    Stirrett, who was the 73
rd
participant out of a total of 78
    participants in the Study. The Study results were inconclusive. A paper based
    on the Study was published in 2012 and has been subsequently cited in other
    published studies. The paper identified the Foundation, among other
    organizations, as having funded the Study.

(2)

The litigation

[24]

The respondent sued the two doctors who
    performed the follow-up angiogram and the appellant, both in negligence and for
    breach of fiduciary duty. The parties agreed on damages, but not on the issue
    of liability. The action against the doctors who performed the angiogram was
    dismissed in its entirety. Below, we outline how the litigation proceeded.

(a)     The respondents negligence claim against the
    appellant

[25]

In her Fresh as Amended Statement of Claim of
    March 19, 2018, the respondent alleged that her husbands death was caused by
    negligence and/or breach of contract. In the case of the appellant, the pleaded
    particulars of the negligence and/or breach of contract included: failing to
    ensure that the Study was monitored by a DSMB; failing to provide Mr. Stirrett
    with all of the relevant information regarding the Study that he required in
    order to decide whether he should participate and undergo the February 10, 2005
    angiogram; and failing to halt the Study when required in the circumstances.

[26]

The negligence claim proceeded to trial before a
    jury in March 2018. The respondent put four main arguments to the jury in
    advancing her negligence claim against the appellant.

[27]

First, she alleged that the appellant breached
    the standard of care of a reasonable and prudent principal investigator of the
    Study by failing to:

§

Establish a DSMB in accordance with the research
    protocol;

§

Advise the REB that a DSMB had not been
    established;

§

Amend the protocol to indicate how the goals of
    the Study had changed;

§

Obtain subsequent REB approval for the
    redesigned Study;

§

Amend the Consent Form for the Study to reflect
    accurate information, including that the Study planned to recruit 100
    participants, not 240.

[28]

Second, she alleged that, but for the breach,
    Mr. Stirrett would not have undergone the follow-up angiogram, since had the appellant
    acted in accordance with his standard of care, the Study likely would have been
    terminated before the date of the angiogram.

[29]

Third, the respondent argued that the appellant
    had breached the standard of care of a reasonable and prudent principal investigator
    in obtaining Mr. Stirretts informed consent. Among other things, the
    respondent relied on the fact that the intended number of participants on the Consent
    Form was incorrect, that the impact this had on the Studys ability to achieve
    its primary objective was not communicated to Mr. Stirrett, and that the
    sponsorship information on the Consent Form was misleading.

[30]

Finally, the respondent argued that, but for the
    failure to obtain Mr. Stirretts informed consent, a reasonable person in Mr.
    Stirretts circumstances would not have undergone the angiogram on February 10,
    2005.

[31]

As is described below, the jury partially
    accepted the respondents first argument but rejected the other three.

(b)     The
    respondents fiduciary duty claim against the appellant

[32]

The respondent also pleaded breach of fiduciary
    duty. She claimed the appellant breached the standard of care and his fiduciary
    duties to Mr. Stirrett by failing to establish a DSMB when the protocol
    required it and failing to halt the Study when it became apparent due to the
    low number of participants that the Study was unlikely to achieve its primary
    objective. She further alleged that the appellant owed a special duty of care
    to Mr. Stirrett, which included a duty to take special care to ensure Mr.
    Stirrett did not feel pressured to consent to the follow-up angiogram. She also
    alleged that, [i]n breaching this duty of care, the appellant and the two
    other doctors breached their fiduciary duty to Mr. Stirrett.

[33]

Claims for other equitable relief, such as
    breach of a fiduciary duty, must be tried without a jury:

Courts of
    Justice Act
, R.S.O. 1990, c. C.43, s. 108(2). Accordingly, following
    the jurys verdict, the trial judge heard submissions and decided the fiduciary
    duty claim.

[34]

The respondent contended that the appellant owed
    Mr. Stirrett a fiduciary duty and advanced three broad arguments as to how this
    duty was breached. First, she alleged that the appellant breached a fiduciary
    duty owed to Mr. Stirrett by not telling him: (1) the new sample size; (2) the primary
    objective of the Study had changed as a result of the change in sample size;
    and (3) the Foundation was not providing additional funding for the third year
    of the Study. Second, the respondent argued that the failure to set up a DSMB
    was a breach of fiduciary duty because it was an important oversight mechanism.
    Finally, the respondent argued that the appellant breached his fiduciary duty by
    putting his interests as a researcher ahead of those of Mr. Stirrett by failing
    to stop the Study once its primary objective had changed.

(c)

The jurys verdict on the negligence claim
    against the appellant

[35]

There is no appeal from the jurys verdict. The
    appeal arises only from the trial judges decision on the fiduciary duty claim.
    However, we outline the jurys verdict, given that it has a bearing on our
    causation analysis.

[36]

In the case of the appellant, the jury was asked
    four questions, corresponding to the four arguments the respondent put to the
    jury, which are outlined above. On the first question, the jury found the
    appellant had breached the standard of care of a reasonable and prudent
    principal investigator in the following four ways:

·

Sample size should have been changed in the
    protocol from 240 patients to 100 patients;

·

The DSMB was never set up as set out in the
    protocol;

·

The Consent Form was never updated with the new
    sample size from 240 patients to 100; and

·

No protocol deviation was submitted to the REB
    based on the information above.

[37]

On the second question, however, the jury found
    that the respondent had not proven on a balance of probabilities that, but for
    the particulars of the breach of the standard of care, Mr. Stirrett would not
    have undergone the angiogram that resulted in his death.

[38]

The jury also found, on the third question, that
    the respondent had not proven on a balance of probabilities that the appellant
    had breached the standard of care of a reasonable and prudent principal
    investigator in obtaining Mr. Stirretts informed consent. As a result, the
    jury did not proceed to answer the fourth question of whether, but for a breach
    in the standard of care in obtaining Mr. Stirretts informed consent, Mr.
    Stirrett would have undergone the follow-up angiogram on February 10, 2005.

[39]

Consequently, the appellant was not liable in
    negligence.

(d)     The trial judges reasons on breach of
    fiduciary duty

[40]

The trial judge began by noting that a fiduciary relationship can
    arise in a doctor-patient relationship
but it is not limited, as the
    defendants argued, to cases such as
Norberg v. Wynrib,
[1992] 2 S.C.R. 226
, where the
    patient is exploited by the doctor.
For what gives rise to a
    fiduciary duty, he relied on
Frame v. Smith
, [1987] 2 S.C.R. 99, and
Hodgkinson
    v. Simms
, [1994] 3 S.C.R. 377.

[41]

The trial judge found that the scope of the
    relationship between the appellant and Mr. Stirrett was one of researcher to patient,
    in addition to doctor and patient. He stated that the obligation of a
    researcher to the participant when it involves humans is more strict than a
    doctor to patient relationship: at para. 47. While he accepted that not all
    aspects of the participant to researcher relationship, where it involves
    research on humans, will rise to the level of a fiduciary duty, he concluded that
    the appellant owed a fiduciary duty to Mr. Stirrett. He described the duty
    owed, at paras. 49-50, as a duty to comply with the Consent Form, drafted in
    accordance with the Policy, and to advise the REB:

The fiduciary duty was to comply with the
    terms set out in the consent form as drafted and agreed by David Stirrett. The
    consent form was drafted in accordance with the principles set out in the
    Tri-Counsel [
sic
] Policy Statement. The consent form required Dr.
    Strauss to inform David Stirrett of new information about the study that might
    develop during the course of this research and might influence your willingness
    to participate in the study. Dr. Strauss failed to do so as stated in the
    particulars of negligence given by the jury. In addition, it was apparent or at
    least contemplated by more than one other source that the study should not
    continue in its existing format without resubmitting the revised protocol to
    each participating hospitals Research Ethics Board. The letter from the Heart
    & Stroke Foundation of September 23, 2003 contemplated the closing of the
    study. The emails of Dr. Cohen and Dr. Seidelin expressly set out their view
    that the changes required notice and approval by their respective Research
    Ethics Boards.

While the changes made in the STREAM study
    from when the consent form was drafted may not have been significant or changed
    the risk of harm to David Stirrett, it was not something for Dr. Strauss to
    decide. His obligation, or duty, was to pass on these changes to David Stirrett
    (and to the Research Ethics Board) in order to permit them to re-evaluate their
    previous decision. This would have protected Dr. Strauss from liability.

[42]

He also concluded, at para. 51, that the appellant
    had breached that duty:

Dr. Strauss, by his actions failed to give
    David Stirrett the opportunity to consider, reflect and determine if he should
    discontinue participation at any time during the study without penalty. By
    not providing the information about the STREAM study which varied from the
    content of the consent form that was explained to David Stirrett on June 11,
    2004 and to which Dr. Strauss, as principal investigator at St. Michaels
    Hospital for the STREAM study agreed, Dr. Strauss breached his fiduciary duty.

[43]

The trial judge agreed with the respondents
    submission that a finding of a fiduciary duty and a breach of that duty
    removes causation from the analysis on whether there will be recovery as
    occurs in the determination of negligence followed by causation: at para. 52.

[44]

The trial judge granted judgment against the
    appellant in the agreed amount of damages.

III

THE ISSUES ON APPEAL

[45]

The two main issues raised by this appeal can be
    articulated as follows:

i.

Did the trial judge err in finding that the appellant
    owed and breached a fiduciary duty to Mr. Stirrett in the circumstances of this
    case?

ii.

If the appellant did owe a fiduciary duty, and
    breached that duty, did the trial judge err on the issue of causation?

[46]

The appellant also argues that the trial judge
    provided insufficient reasons for his decision. However, given our disposition
    of this appeal, it is unnecessary to address this further argument.

IV

THE FIDUCIARY DUTY ISSUE

[47]

It is important to begin by noting what is and what
    is not at issue on this appeal.

[48]

The
Canadian Cancer Trials Group and the
    Canadian Cardiovascular Research Collaboratory (the research interveners)
    submit that the trial judges decision potentially imposes a novel fiduciary
    obligation on
all
research
    doctors to advance the best interests of individual human research subjects and
    that he erred in finding that physicians who are researchers owe fiduciary
    duties to voluntary participants in clinical studies. According to the research
    interveners, research doctors should not owe such duties because they would
    have a chilling effect on the operation of clinical trials in which a
    researcher seeks broader knowledge and a societal benefit greater than the
    individual participants interests. They say that researchers are required to
    balance the interests of participants in clinical trials with their duty to
    maximize the benefits of a research study for the advancement of knowledge and
    that this balancing of interests is inconsistent with the recognition of a
    fiduciary duty. The research interveners are concerned about the precedential
    impact of this case and its practical implications for medical researchers in
    Canada.

[49]

By contrast, the
Ontario Trial Lawyers
    Association (OTLA) argues that, not only did the trial judge correctly find
    that the appellant owed and breached his fiduciary duty to Mr. Stirrett, but
    that this court should go further and generally find that there is a breach of fiduciary
    duty where a researcher has failed to obtain the approval of a REB. The
OTLA
    says that the recognition of a fiduciary duty owed by a researcher to a human
    subject will enhance the communitys trust in an important institution.

[50]

The trial judge did not find, nor did any of the
    parties to the appeal argue, that the relationship between a medical researcher
    and study participant is a new category of
per se
fiduciary
    relationship, such as solicitor-client or trustee-beneficiary. Further, the
    parties to this appeal did not dispute that there could be circumstances in
    which a medical researcher may owe an
ad hoc
fiduciary duty to a
    participant in a clinical trial.

[51]

As such, the question in this appeal is not whether medical
    researchers owe a
per se
fiduciary duty to research participants, or
    even in general terms when an
ad hoc

fiduciary duty may arise. It is unnecessary and beyond
    the proper scope of this appeal for us to resolve any such issue in the context
    of this appeal.

[52]

The narrow question raised by this appeal is
    whether the trial judge erred in finding that the appellant owed an
ad hoc
fiduciary duty to Mr. Stirrett in the particular circumstances of this case.

[53]

In
Alberta v. Elder Advocates of Alberta
    Society
, 2011 SCC 24, [2011] 2 S.C.R. 261, at para. 36, McLachlin C.J.,
    writing for the court, stated what a claimant must establish before a court
    will impose a fiduciary duty outside of the traditionally recognized categories
    of
per se

fiduciary relationships:

In summary, for an
ad hoc
fiduciary
    duty to arise, the claimant must show, in addition to the vulnerability arising
    from the relationship described by Wilson J. in
Frame
: (1) an
    undertaking by the alleged fiduciary to act in the best interests of the
    alleged beneficiary or beneficiaries; (2) a defined person or class of persons
    vulnerable to a fiduciarys control (the beneficiary or beneficiaries); and (3)
    a legal or substantial practical interest of the beneficiary or beneficiaries
    that stands to be adversely affected by the alleged fiduciarys exercise of
    discretion or control.

[54]

Here, the trial judge recognized that t
he issue was whether
    the factual matrix before him raised a fiduciary duty.
While
    he did not cite
Elder Advocates
for the factors giving rise to a
    fiduciary duty, he relied on
Frame
and
Hodgkinson,
two other leading cases from the Supreme Court on
    fiduciary duty
.

[55]

The appellant repeats arguments that he
    made before the trial judge, that is, that the requisite vulnerability and
    discretion to impose a fiduciary duty were not present in this case. We reject
    those arguments as the elements of vulnerability and discretion are fully
    supported by the evidence. The appellant, who is an accomplished researcher,
    had all the information about the Study that might influence Mr. Stirretts
    willingness to participate and could control the disclosure of that
    information; the information was complex and extremely important; and Mr.
    Stirrett, who had no expertise and relied on the appellant to provide that
    information, could not make an informed decision without that information.

[56]

With respect to the additional requirement emphasized
    in
Elder Advocates
for establishing an
ad hoc

fiduciary
    duty  an undertaking by the alleged fiduciary to act in the best interests of
    the alleged beneficiary
the research interveners argue that the
    trial judge erred
by failing to expressly determine whether
    there was an implicit or explicit undertaking by the appellant to act in the
    best interests of Mr. Stirrett. As a result, the research interveners argue,
    the trial judges finding that the appellant owed an
ad hoc
fiduciary
    duty to Mr. Stirrett is not entitled to the normal deference it would be
    entitled to on appeal: see
Waxman v. Waxman
(2004)
,
186
    O.A.C. 201 (C.A.), at paras. 501, 716, leave to appeal refused, [2004] S.C.C.A.
    No. 473
.

[57]

In this case, the trial judge cited the
    following passage from pp. 409-10 of
Hodgkinson
: [W]hat is required is
    evidence of a mutual understanding that one party has relinquished its own
    self-interest and agreed to act solely on behalf of the other party. While
Elder
    Advocates
does not talk about a mutual understanding, this passage from
    the trial judges reasons includes the requirement in
Elder Advocates
of
    an undertaking by the alleged fiduciary to act in the best interests of the
    alleged beneficiary or beneficiaries.

[58]

We acknowledge, however, that the trial judge
    did not explicitly analyze whether the appellant undertook to act in Mr.
    Stirretts best interests in relation to the interest in question. He did not
    do so for the good reason that it was not the subject of argument before him.
    No party referenced
Elder Advocates
or discussed the undertaking
    requirement.

[59]

The respondent argued at trial that all the defendant physicians
    owed fiduciary duties to Mr. Stirrett and that those duties required them to
    put Mr. Stirretts best interests before their own. Counsel referred to the
    hallmarks of a fiduciary relationship, as set out in
Frame
, at p.
    136, which are: (
1) the fiduciary has scope for
    the exercise of some discretion or power; (2) the fiduciary can
    unilaterally exercise that power or discretion so as to affect the
    beneficiarys legal or practical interests; and (3) the beneficiary is
    peculiarly vulnerable to or at the mercy of the fiduciary holding the
    discretion or power.
It was submitted that physicians, as a class, owe
    fiduciary duties to their patients.

[60]

In
    response, the appellant argued that not every relationship or interaction
    between doctors and patients is fiduciary in nature. He made no reference to
    the undertaking requirement in
Elder Advocates
.
    He confined his trial submissions to the other elements of an
ad hoc
duty,
    framing them in accordance with the three hallmarks of a fiduciary
    relationship. The appellant maintained that Mr. Stirrett was not vulnerable and
    that the defendant physicians did not engage in any conduct that would come
    near to the kind of egregious abuse of discretionary power, such as in
Norberg
,
that amounted to a breach of fiduciary
    duty. It was also the appellants position that the jurys findings on
    negligence foreclosed any finding of liability for breach of fiduciary duty
    that was grounded on the same facts and that the action failed on the issue of
    causation.

[61]

Even assuming, without deciding, that the trial
    judge erred by failing to analyze the undertaking element of an
ad hoc
fiduciary duty, we are not persuaded that we should undertake that analytical exercise.
    It would require us to make a determination of mixed fact and law on an issue
    not argued at trial. Given our conclusion on the causation issue, it is not
    necessary for us to do so.

[62]

In declining to deal with this issue, we should
    not be taken as expressing any opinion on whether the trial judge was correct
    in accepting that a fiduciary duty was owed to Mr. Stirrett, or that, if a duty
    were owed, it was the duty articulated by the trial judge. Nor should these
    reasons be read as foreclosing or requiring a finding of a fiduciary
    relationship between a medical researcher and study participant in another
    case. The presence or absence of a fiduciary relationship will depend on the
    evidence in each particular situation. Any time it is alleged that one party
    owes an
ad hoc
fiduciary duty to another party, the court must engage
    in an examination of the particulars of the relationship to determine whether
    the
Elder Advocates
test is satisfied in the circumstances.

V

THE CAUSATION ISSUE

[63]

The causation issue is dispositive of the appeal.
    For the purposes of this discussion, we accept, without deciding, that the
    appellant breached his fiduciary duty to Mr. Stirrett in the manner described
    by the trial judge.

[64]

As indicated above, the trial judge concluded
    that a finding of fiduciary duty and a breach of that duty obviated the need to
    consider the issue of causation. The trial judge stated the following, at
    paras. 52-53 of his reasons:

Having found a fiduciary duty existed and that
    Dr. Strauss breached that duty, the third issue is to determine the legal
    outcome. Counsel for the plaintiff submitted the finding of a fiduciary duty
    and the breach of that duty removes causation from the analysis on whether
    there will be recovery as occurs in the determination of negligence followed by
    causation. I agree.

I rely on the statement of Justice McLachlin
    in
Norberg v. Wynrib
,
supra
at paragraph 95, Equity has always
    held trustees strictly accountable in a way the tort of negligence and contract
    have not. In addition, Justice McLachlin goes on to state, at paragraph 98,
    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 that pledge, he
    is liable.

[65]

As we will explain, the trial judge misstated
    the law regarding the role of causation in cases involving a breach of
    fiduciary duty. Simply put, for compensation to be awarded for breach of
    fiduciary duty, the plaintiff must establish that the defendants breach caused
    the plaintiffs loss. As a result, the trial judge erred in failing to consider
    and determine the issue of causation.

[66]

Considering and applying the correct principles
    with respect to the issue of causation afresh, assuming that the appellant owed
    an
ad hoc
fiduciary duty to Mr. Stirrett and breached that duty, we
    conclude that there was no causal link between the appellants breach and the
    angiogram Mr. Stirrett underwent that led to his death. Moreover, the jurys
    determination with respect to but for causation in the negligence claim is
    determinative. In the result, the respondent is not entitled to damages.

[67]

Before turning to an analysis of the trial judges
    reasons, it is first necessary to review the law on causation in the fiduciary
    context.

(1)

Compensation for breach of fiduciary duty

[68]

Compensation for breach of fiduciary duty is
    typically determined according to restitutionary principles, where the
    plaintiff is entitled to be put in as good a position as he or she would have
    been in had the breach not occurred:
Hodgkinson
, at p. 440,
per
La
    Forest J. In
M. (K.) v. M. (H.),
[1992]
    3 S.C.R. 6
, La Forest J., writing for the majority, pointed out
    that in equity there is no capacity to award damages and that the distinction
    between damages and compensation is often slight, with the courts tending to
    merge the principles of law and equity when necessary to achieve a just remedy:
    at pp. 80-81. Over time, courts have used the term damages to denote monetary
    compensation for breach of fiduciary duty. Remedies in cases of breach of
    fiduciary duty (such as disgorgement of profits and exemplary compensation) can
    also have a prophylactic or deterrent purpose:
Strother v. 3464920 Canada
    Inc.
, 2007 SCC 24, [2007] 2 S.C.R. 177, at paras. 74-77.
Irrespective
    of the purpose, there must be a causal link between the breach of fiduciary
    duty and the compensation sought.

[69]

As we will explain, when considering equitable
    compensation, or damages, the fiduciary breach must have been the cause in fact
     the effective cause  of the loss in respect of which compensation is sought.
    There is of course a difference between the right to a remedy, and the
    assessment of damages. Causation in fact is relevant to the first issue. Legal
    causation, which incorporates limiting factors such as remoteness, proximity,
    foreseeability, and intervening act, is part of the second issue.

[70]

We acknowledge that a source of confusion over
    the role of causation is in the use of the word causation in some of the
    cases both to describe causation in fact and as part of the test for applying
    common law limiting factors to limit the extent of a damages claim. These two
    uses should not be confounded.

[71]

In the tort context, Philip H. Osborne cautions
    that causation in fact, which focuses on the factual issue of the sufficiency
    of the connection between the defendants wrongful act and the plaintiffs
    loss, should not be confused with the control device of remoteness of
    damages, sometimes known as proximate cause, which may excuse a defendant from
    liability for loss caused to the plaintiff on the ground of fairness: Philip.
    H. Osborne,
The Law of Torts
, 5th ed. (Toronto: Irwin Law, 2015), at
    p. 54.

[72]

Similarly, Sir Andrew Tipping, in Causation at
    Law and in Equity: Do We Have Fusion? (2000) 7:3 Canterbury L. Rev. 433, at
    p. 433, emphasizes the conceptual difference between the need to
    demonstrate a causal relationship that is separate from and precedes the
    further controls provided by the concepts of foreseeability and remoteness.

[73]

Writing on fiduciary law, Leonard I. Rotman
    distinguishes between legal and factual causation: Leonard I. Rotman,
Fiduciary
    Law
,

(Toronto:
    Thomson Reuters Canada Limited, 2005). At p. 634, he writes:

Both the common law and Equity require that
    there be some connection between the harm or loss caused and the actions of the
    person who is alleged to be liable for it.

Each starts with the idea of but for,
    cause-in-fact, or
sine qua non
 causation. This generally satisfies
    Equity, but the common law requires more; it demands a finding of materiality
    or substantial cause to link the impugned activity with the harm to the
    plaintiff. Further, the common law imports ideas of foreseeability (or
    reasonable contemplation) and remoteness into its assessment of causality.
    Mitigation of losses is another relevant consideration under the common laws
    assessment of damages for harm or loss, as is contributory negligence. These
    other considerations do not readily enter into Equitys assessment of fiduciary
    accountability. [Footnotes omitted.]

[74]

As this passage suggests, and as we will discuss
    below with reference to the case law, cause in fact is required in the
    fiduciary context. This case turns on the cause in fact requirement: did the
    respondent prove that the appellants breach of fiduciary duty caused the loss
    in respect of which compensation is sought? That loss is Mr. Stirretts death
    from the February 2005 angiogram. Because damages were agreed, it is
    unnecessary to go further and consider the extent of recoverable losses or
    whether a different measure should apply where the claim is for breach of
    fiduciary duty rather than negligence.

[75]

We turn now to the case law on causation.

(2)

Factual causation

[76]

While the appropriate approach to the assessment
     that is, the measure and extent  of damages for breach of fiduciary duty was
    the subject of debate and discussion in the Supreme Court during the 1990s,
    namely in
Canson Enterprises Ltd. v. Boughton & Co.,
[1991] 3 S.C.R. 534
,
and
Hodgkinson
,
    the Supreme Court was unanimous that whether dealing with a common law cause of
    action, or a claim sounding in equity, the plaintiff must establish that the
    defendants wrong was the cause in fact of some injury or loss.

[77]

Canson
involved
    a claim against a solicitor who handled a real estate transaction and who
    failed to disclose to his clients, the purchasers, a secret profit made by a
    third party. It was claimed that the solicitor was not only liable for the
    secret profit but also for the losses flowing from the negligence of engineers
    and pile-drivers who performed work on the purchased property.

[78]

All eight justices who heard the case agreed that
    the defendant solicitor should be liable for the secret profit but not for the
    construction losses that were caused by the engineers. And, while the justices
    expressed differing opinions on whether and when the common law limiting
    factors would apply to compensation for breach of fiduciary duty, importantly,
    they agreed that, in order to award compensation for breach of a fiduciary
    duty, there must be a loss or injury that flows from or results from the
    breach.

[79]

La Forest J., writing for the majority, stated,
    at pp. 578-79, that
[i]
n the
    case of a mere breach of duty [by contrast to a breach of trust], the concern
    of equity is to ascertain the loss
resulting from
the breach of the particular duty, and that it was imperative to ascertain
    the loss
resulting from
the breach of the relevant
    equitable duty (emphasis added).

[80]

While generally agreeing with La Forest J.,
    Stevenson J. wrote brief separate reasons in which he noted that
the
    losses [were] too remote,
not in the
    sense of failing the but for test
, but in being so unrelated
    and independent that they should not, in fairness, be attributed to the
    defendants breach of duty: at p. 590 (emphasis added).

[81]

McLachlin J., writing for herself, Lamer C.J.,
    and LHeureux-Dub
é
J., agreed
    that the court was engaged in determining the loss resulting from the breach of
    the relevant equitable duty: at p. 551.
She
distinguished causation in
    fact from legal causation, stating, at p. 552, that
[t]
he requirement that the loss must
result from
the breach of the relevant equitable duty does not negate the fact that causality
    in the legal sense as limited by foreseeability at the time of the breach does
    not apply in equity (emphasis added). Similarly, she stated that

while the loss must
flow from
the breach of fiduciary duty, it need not be reasonably
    foreseeable at the time of the breach: at p. 552 (emphasis added).

[82]

The Supreme Court next addressed compensation
    for breach of fiduciary duty in
Hodgkinson
, a case involving alleged
    breaches of fiduciary duty and contract in the performance of a contract for
    investment advice and other tax-related financial services.

[83]

La Forest J., writing for the majority, found
    that Mr. Simms, an investment advisor, owed, and had breached, a fiduciary duty
    to Mr. Hodgkinson. He found that the damages owed for breach of fiduciary duty
    were the same as for breach of contract, taking into account the impact of
    market fluctuations that occurred after the breach.

[84]

La Forest J. referred to the task of determining
    the damages flowing from the breach of fiduciary duty. The investment advisor
    induced Mr. Hodgkinson to make investments that he would not have otherwise
    made by deliberately concealing his own financial interest, thus initiat[ing]
    the chain of events leading to the investors loss: at p. 443.

[85]

In summary, in
Canson
and
Hodgkinson
there was a causal link between the breach of fiduciary duty of the defendant
    and the harm to the plaintiff. The plaintiffs in
Canson
would not have
    entered into the transaction if the defendant solicitor had disclosed the
    secret profit. And, in
Hodgkinson
, the plaintiff would not have made
    the investments if he had known of the true relationship between the defendant
    and the developers. The point of contention in these cases was not whether a
    loss was caused by the breach, but the extent to which compensation for
    consequential losses could be recovered.

[86]

The need for cause in fact to be established
    before compensation or damages are awarded for breach of fiduciary duty has also
    been consistently recognized by this court.

[87]

For example, in
Martin v. Goldfarb
(1997)
, 31 B.L.R. (2d) 265 (Ont. Gen.
    Div.), the plaintiff claimed damages as a result of losses suffered in
    commercial dealings with a disbarred lawyer who had been convicted of fraud.
    Following a first trial awarding $5.95 million in damages to the plaintiff, a
    successful appeal by the defendant, and a new trial which resulted in the
    dismissal of his claim, the plaintiff appealed. The issue on the appeal of the
    new trial was whether the trial judge erred in requiring that the plaintiffs personal
    losses be direct: see
Martin v. Goldfarb
(2003), 68 O.R. (3d) 70
    (C.A.). This court stated, at para. 8, that
[d]
amages cannot be awarded absent evidence of a causal connection. This
    court held that the trial judge was justified in dismissing the claim because
    the plaintiff had not established a causal connection in fact between the
    losses he sustained in a bankruptcy and the breach of fiduciary duty.

[88]

Further, in
Waxman
, this court accepted
    that
[t]
he basic rule of
    equitable compensation is that the injured party will be reimbursed for
all losses flowing directly from the breach

:
    at para. 651 (emphasis added).

[89]

Also, in
Standard Trust Company v.
    Metropolitan Trust Company of Canada
, 2007 ONCA 897, 232 O.A.C. 74,
    MacFarland J.A. confirmed, in a breach of fiduciary duty case, that the trial
    judge was required on a common sense and reasonable consideration of the
    evidence, [to] conclude what
the losses were that flowed
    from the breach
: at para. 49 (emphasis added).

[90]

To put it succinctly, a plaintiff seeking
    compensation for breach of fiduciary duty must establish that the losses flowed
    from the breach.

[91]

We add this. While legal causation is not at
    issue in this appeal, we note that the Supreme Court and other appellate courts
    have accepted that common law limiting principles may apply to limit equitable
    compensation in order to treat similar wrongs similarly, but only where: (1) it
    is necessary to achieve a just and fair result; and (2) doing so does not raise
    any policy concerns:
Canson
, at pp. 581, 586-87,
per
La Forest
    J.;
Hodgkinson
,
at p.
    443,
per
La Forest J.;
Waxman
,
at para. 662; and
Dhillon v. Jaffer
, 2016 BCCA 119, 86 B.C.L.R. (5th)
    239, at paras. 26-28.

[92]

For example, in
M. (K.)
, La Forest J.
    declined to award any additional compensation for a parents breach of
    fiduciary duty after concluding that the underlying policy objectives for
    compensation were the same as those animating the jurys award of damages for
    sexual assault and battery in a case of incest: at pp. 81-82.

[93]

We now turn to the trial judges decision in
    this case.

(3)

The trial judges decision

[94]

With respect, an examination of the trial judges
    reasons demonstrates that he fell into error on the question of causation through
    his reliance on the comments by McLachlin J. in
Norberg
. As noted, at
    para. 52, he agreed with plaintiffs counsel that the finding of a fiduciary
    duty and the breach of that duty removes causation from the analysis on whether
    there will be recovery as occurs in the determination of negligence followed by
    causation.

[95]

Decided a year after
Canson
,
Norberg
dealt with allegations of sexual assault in the context of a doctor-patient
    relationship. McLachlin J., who was joined in her reasons by only LHeureux-Dubé
    J., found there was a breach of fiduciary duty. McLachlin J. made the following
    comments, at pp. 290 and 293 of
Norberg
, which were relied on by the
    trial judge in this case on the issue of causation:

Equity has always held trustees strictly
    accountable in a way the tort of negligence and contract have not.

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 that pledge, he is liable.

[96]

The trial judges reliance on these comments was
    misplaced.

[97]

We do not read McLachlin J.s comments as
    supporting the proposition that causation is removed from the analysis in the
    fiduciary context. She made these observations in her discussion of whether
    there was a breach of fiduciary duty. Later in her reasons, in addressing
    damages, McLachlin J. noted that Dr. Wynribs breach of his duty to Ms.
    Norberg
caused
the following losses or injuries to
    her: (1) prolongation of her addiction; and (2) sexual violation: at p. 295
    (emphasis added). After reviewing the evidence, she indicated she would award an
    additional $20,000 for suffering and loss during the period of prolonged
    addiction for which Dr. Wynrib was responsible: at p. 296. Thus, causation in
    fact was present.

[98]

Moreover, as we have explained, the trial judges
    reading of McLachlin J.s comments is inconsistent with
Canson
,

Hodgkinson
and case law from this court, which affirm the place of
    cause in fact in the fiduciary context.

[99]

The trial judge failed to consider cause in fact,
    as he was required to do. We turn finally to explain why it is not made out in
    this case.

(4)

Failure to establish causation

[100]

As we will explain, applying the findings of the jury to this case,
    the claim for breach of fiduciary duty inevitably founders on causation. The
    claims against the appellant for breach of fiduciary duty and breach of the
    standard of care of a principal investigator in this case were based on
    substantially the same conduct.

[101]

There was an agreement in this case on the amount of damages, which
    were premised on the loss of Mr. Stirretts life following the February 2005
    angiogram.

[102]

While the jury did not need to assess damages, it was still
    necessary for them to determine whether the wrong that they found the appellant
    to have committed  his breach of the standard of care of a principal
    investigator  had caused the loss in question.
After concluding
    that he had breached the standard of care in four ways,
the jury responded in the negative when asked whether the plaintiff
    had proven, on a balance of probabilities, that but for the breaches of the
    standard of care they had described, Mr. Stirrett would not have undergone the
    February 2005 angiogram.

[103]

The causation issue, as it developed in the evidence, addressed two
    questions. The first was whether, if the appellant had not breached his
    standard of care in the ways the jury had identified, the Study would have
    continued, or whether it would have been terminated once it was known that its
    stated purpose could not be achieved and that the Foundation had stopped its
    funding. The second question was whether, if the appellant had not breached his
    standard of care in the ways the jury had identified, Mr. Stirrett would have
    refused to participate in the Study or withdrawn from it. The argument was
    that, in either case, Mr. Stirrett would not have had the February 2005
    angiogram.

[104]

The jurys conclusion that there was no but for causation between
    the appellants breach of the standard of care as a principal investigator and
    Mr. Stirretts decision to undergo the February 2005 angiogram can only
    mean that the jury was
not
satisfied: (1) that the
    Study would have been terminated once the proper information had been provided
    to the REB; and (2) that Mr. Stirrett would not have participated in the
    Study, or would have withdrawn from it, if the proper information had been
    provided to him. In essence, the jury must have concluded that, notwithstanding
    the breach of the appellants standard of care, in the ways they had
    identified, the Study would have continued, and Mr. Stirrett would not have
    ceased his participation and would have still undergone the February 2005
    angiogram.

[105]

The same issues are part of the causation analysis when the cause of
    action is breach of fiduciary duty. In determining whether the breach of
    fiduciary duty was the cause in fact of the respondents loss, the trial judge
    would have had to answer the following question: would Mr. Stirrett have
    remained in the Study and undergone the February 2005 angiogram as part of the
    Study, if the appellant had not breached his fiduciary duty?

[106]

The issue is whether there is a causal link between the breach of
    fiduciary duty and Mr. Stirretts decision to undergo the February 2005
    angiogram. The fact that Mr. Stirrett would have undergone the angiogram
    despite the appellants breach of fiduciary duty breaks the chain of factual
    causation in the fiduciary duty claim, just as it did in the negligence claim.
    The result would have been the same.

[107]

This is the case whether or not causation in a breach of fiduciary
    duty case is described as but for causation. That said, causation in the
    context of a breach of fiduciary duty is properly characterized as but for
    causation. But for causation is not simply a common law concept. It means
    that the defendants breach of duty was necessary to bring about the plaintiffs
    loss. The defendants wrong need not be the sole cause of the loss, but it must
    be part of the cause. But for causation raises the counterfactual question:
    what would likely have happened if the defendant had discharged his or her
    duty? Properly understood, but for causation simply means causation in fact.

[108]

As we have seen, a number of the fiduciary duty cases speak of causation
    in fact in what are in substance but for terms: see
Canson
, at pp.
    578-79,
per
La Forest J., at p. 552,
per
McLachlin J.;
Hodgkinson
,
    at pp. 393-94,
per

La Forest J.; and
SFC Litigation Trust
    v. Chan
, 2019 ONCA 525, 147 O.R. (3d)
    145, at para. 117, leave to appeal refused, 75 C.B.R. (6th) 1
.
    Similarly, in
Cadbury Schweppes Inc. v. FBI Foods Ltd.
, [1999] 1
    S.C.R. 142, at para. 74, the Supreme Court considered the economic advantage
    the plaintiffs would have enjoyed but for the defendants breach of
    confidence.

[109]

Returning to this appeal, the respondent makes several arguments on
    causation.

[110]

First, the respondent argues that the appellant had the onus at
    trial of disproving causation. She submits that this court cannot give effect
    to the jurys finding on causation because it was a finding that she had not
    satisfied her burden to prove causation, whereas a fiduciary has the burden of
    proving, with concrete evidence, that the beneficiary would have suffered the
    same loss regardless of the fiduciarys breach.

[111]

For this proposition, the respondent relies on
Hodgkinson
,
    at p. 441, where La Forest J. referred to the long standing equitable
    principle that where the plaintiff has made out a case of non-disclosure and
    the loss occasioned thereby is established, the onus is on the defendant to
    prove that the innocent victim would have suffered the same loss regardless of
    the breach.

[112]

In the passage on which the respondent relies, La Forest J.
    continues to explain, citing
Rainbow Industrial Caterers Ltd. v. Canadian
    National Railway Co.
,
[1991] 3 S.C.R. 3, at pp. 14-17, that this principle has been affirmed with
    respect to damages at common law in the context of negligent misrepresentation,
    and that courts exercising both common law and equitable jurisdiction have
    approached this issue in the same manner.

[113]

We do not accept the respondents reverse onus approach to
    causation. This approach may apply where a plaintiff has first satisfied the
    burden of establishing cause in fact. At the stage of assessing damages, it may
    permit the defendant to argue that the injured party would have, in any event,
    assumed a position other than the
status quo ante
 and that this
    should be taken into account in calculating damages:
Rainbow
, at pp.
    15-16. This is the point made in
Hodgkinson
, where the defendant
    argued unsuccessfully that the plaintiff, who had relied on the defendant to
    make a particular investment, would have invested in tax shelters in any event,
    and suffered market losses.

[114]

In this case, the reverse onus does not apply. The respondent did
    not first establish that the appellants breach caused Mr. Stirrett to undergo
    the February 10, 2005 angiogram. In the present case, the reverse onus
    approach might arguably have applied to the assessment of damages, had damages
    not been agreed, but does not apply to the question of cause in fact.

[115]

For these reasons, we do not accept the respondents argument that
    the onus was on the appellant, as the breaching fiduciary, to demonstrate with
    concrete evidence that Mr. Stirrett would have undergone the February 2005 angiogram
    irrespective of the breach. The onus was on the respondent to establish that
    the appellants breach was the cause in fact of the respondents loss.

[116]

Second, the respondent asserts that there was evidence to support a
    causal link between the appellants breach of fiduciary duty and Mr. Stirretts
    February 2005 angiogram. Essentially, the respondent argues that, based on the
    evidence, the Study would not have continued if the proper information had been
    provided to the REB and that, if Mr. Stirrett had been given the information in
    question, he would not have participated in the Study, or would have withdrawn
    from it.

[117]

We agree with the appellant that this argument cannot succeed. It
    would require the court, in assessing the fiduciary duty claim, to make
    findings that are inconsistent with those made by the jury on the negligence
    claims.

[118]

In this case, the respondent pleaded precisely the same omissions
    (failure to establish a DSMB and halt the Study) and relied on the same
    evidence to support her claims of breach of the standard of care and of the
    fiduciary duty. The respondent explicitly equated the alleged breach of the
    duty of care owed to Mr. Stirrett to the breach of fiduciary duty in the final
    paragraph of her pleadings. Thus, not only are the pleadings based on the same
    principles, but they relate to the same exact activity: see discussion in
Dhillon
,
    at para. 28. This is the factual matrix that was before the jury.

[119]

The trial judge correctly noted, at para. 45, that he was obliged to
    accept the findings of the jury, as triers of the facts. Indeed, the trial
    judge observed that the specific breaches of the appellants standard of care
    as a principal investigator identified in the particulars were consistent with
    the breaches relied upon in the fiduciary duty claim.

[120]

In
M.M. v. P.M.,
2000 BCSC 1597, 82 B.C.L.R. (3d) 125,
    after a jury had determined a case of sexual assault, Bennett J. (as she then
    was) had to determine the fiduciary duty claims. Citing
R. v. Brown
,
[1991] 2 S.C.R. 518,
she noted that, in such
    circumstances, a trial judge may be required to make additional factual
    findings, but is normally bound by the express and implied factual
    implications of the jury verdict: at para. 13.

[121]

As noted above, the jurys finding in this case was that the
    respondent had not proven on a balance of probabilities, that, but for the
    appellants failure to change the Studys sample size in the Consent Form and
    the research protocol, his failure to set up the DSMB, and his failure to
    submit a revised protocol to the REB, Mr. Stirrett would not have undergone the
    February 2005 angiogram that led to his death. This meant that the jury could
    not have been satisfied that, but for the breaches of the standard of care,
    either the Study would have been stopped, or Mr. Stirrett would have chosen not
    to participate. If either of those events had happened, the follow-up angiogram
    in February 2005 would not have taken place. No different result is open on the
    factual causation question in relation to the breach of fiduciary duty found by
    the trial judge.

[122]

Indeed, at para. 3, the trial judge accepted that the jury found
    that the negligence of the appellant was not the cause of Mr. Stirrett
    undergoing the angiogram on February 10, 2005. At para. 42, he observed that
    the jury may have been influenced by the evidence that the risk of serious harm
    from the procedure was small, and the logic of it being better to know the
    extent of restenosis six to eight months following an angioplasty than not. In
    other words, even if he had received the correct material information, Mr.
    Stirrett may have decided to have the follow-up angiogram because of its
    expected advantages.

[123]

To the extent that, in finding a breach of fiduciary duty, the trial
    judge pointed to failures that were not identified by the jury, such as the
    failure to inform Mr. Stirrett of the loss of the Foundations
    sponsorship, these additional failures are similar in nature to the jurys
    findings on the particulars of the appellants breach of his standard of care,
    and would not affect the outcome.

[124]

In the end, the result is the same, whether the respondents claim
    sounds in negligence or breach of fiduciary duty.

VI

DISPOSITION

[125]

Accordingly, we allow the appeal and dismiss the action.

[126]

If sought, the appellant is entitled to costs of the appeal in the
    agreed-upon, all-inclusive amount of $25,000. The order for costs in the court
    below is set aside and, unless otherwise agreed by the parties, the question of
    costs below shall be remitted to the Superior Court of Justice.

Released:  AH MAY 06 2020

Alexandra
    Hoy A.C.J.O.

K. van
    Rensburg J.A.

L.B.
    Roberts J.A.

[1]

Mr.
    Stirretts estate was also initially a plaintiff in this action, but on March
    20, 2018, the trial judge dismissed, on consent, the action brought by Mr.
    Stirretts estate, leaving Ms. Stirretts action to proceed alone. On appeal,
    the appellant does not challenge Ms. Stirretts standing to bring the fiduciary
    claim.


COURT OF APPEAL FOR ONTARIO

CITATION: TriDelta Investment Counsel Inc.
    v. GTA Mixed-Use Developments GP Inc., 2020 ONCA 294

DATE: 20200511

DOCKET: C67118

Doherty, Juriansz and Paciocco
    JJ.A.

BETWEEN

TriDelta Investment Counsel
    Inc., TriDelta Fixed Income Fund and TriDelta High Income Balanced Fund

Applicants (Respondents)

and

GTA Mixed-Use Developments GP
    Inc., Mixed-Use Developments (Ontario) GP Inc. and Wasaga Developments and
    Infrastructure GP Inc.

Respondents (Appellants)

Simon Bieber and Michael Darcy, for the
    appellants

Christopher Naudie and Lauren Tomasich,
    for the respondents

Heard: In-writing

On appeal from the order imposed by
    Justice Michael A. Penny of the Superior Court of Justice, dated May 27, 2019.

REASONS FOR DECISION

[1]

This appeal comes to the court from the
    commercial list. The respondents (TriDelta) are limited partners in three
    limited partnerships. The appellants are the general partners.

[2]

The partnerships were formed to acquire
    interests in various real estate development projects. The limited partnerships
    acquired those interests through project companies controlled by the limited
    partnerships and managed by the same person who controls all of the shares of
    the general partners.

[3]

TriDelta does not have a direct interest in the
    project companies or their assets. TriDelta holds units in the limited
    partnership. Under the limited partnership agreements (LPA), TriDeltas
    investment in the limited partnerships is to be recouped from the profits, if
    any, earned through the development of the projects.

[4]

The working relationship between TriDelta and the
    appellants began to break down in early 2018, when the appellants came under
    new management. Since that time, as observed by the application judge, both
    parties have engaged in conduct giving rise to animosity, suspicion and lack of
    trust.

[5]

The breakdown in their relationship has fuelled
    this application and the cross-application. On the application, TriDelta sought
    an order requiring the appellants to produce certain documentation and
    information referable to the limited partnerships and the real estate
    development projects.

[6]

The parties were able to agree the appellants
    would provide much of the information and documentation sought by TriDelta. The
    disputed issues went before Penny J.

[7]

In his endorsement, Penny J. ordered the
    appellants to produce most of the material sought by TriDelta. He also directed
    that the annual reports and semi-annual reports prepared by the appellants
    contain certain material and information specified in his order. TriDeltas
    cross-application did not proceed.

[8]

The appellants raised two grounds of appeal:

·

Did the application judge err in making orders
    in respect of an issue that was not properly raised before him?

·

Did the application judge err in imposing
    requirements on the contents of the annual report going beyond the requirements
    agreed upon by the parties in the limited partnership agreements (LPA)?

[9]

The first ground of appeal alleges a failure of
    procedural fairness. The appellants argue they did not have adequate notice the
    application judge would be asked to make an order detailing the contents of the
    annual report. They submit that TriDelta sought production of certain
    information and documentation, but did not, until very shortly before the
    hearing, seek an order directing that the information requested be included in the
    annual report. The appellants contend, without adequate notice, they did not have
    a fair opportunity to respond to this issue and place relevant material before
    the application judge.

[10]

It is not clear from the record whether this
    argument was put to Penny J. Counsel made written and oral argument. Penny J.,
    in his endorsement, makes no reference to any submission that he should not
    entertain parts of TriDeltas application because of inadequate notice. Nor do
    the facta filed on appeal make any reference to such arguments.

[11]

The appellants acknowledge they knew that
    TriDelta would be seeking orders in respect of the contents of the annual
    report, although they claim to have been made aware of this only days before
    the argument. In these circumstances, if the appellants did not raise this
    issue before the application judge, it is difficult to give it any credence on
    appeal. In any event, we are satisfied that it cannot succeed.

[12]

This application generated a sizable record. The
    parties went back and forth on what the appellants should and should not be
    obliged to produce to TriDelta. The material demonstrates, well before the
    hearing, both parties were operating on the basis that the annual and semi-annual
    reports could provide the vehicle for production of at least some of the
    material sought by TriDelta.

[13]

TriDeltas initial application did not refer to
    the content of the annual report. This is explained by the timing of the
    application. When the application was launched, the annual report was not due
    for several months. By the time the application was heard, the annual report
    for the fiscal year 2018 was late. It is understandable that TriDelta would
    look to the pending annual report as a means of providing the necessary
    disclosure.

[14]

A review of the cross-application filed by the
    appellants, the cross-examination of the representative of the appellants, and
    proposals made to resolve the application while it was pending demonstrates
    both parties were addressing TriDeltas demand for production of materials and
    information, in part, in the context of the appellants acknowledged obligation
    under the LPA to provide annual and semi-annual reports. It may be that TriDeltas
    position as to exactly what information and material it sought included in the annual
    report did not crystallize until shortly before argument. However, well before
    the application was heard, the parties had joined issue on what the appellants should
    be required to produce and the contents of the annual report in light of any
    production requirements imposed on the application. The appellants had ample
    notice and a full opportunity to make their case in respect of the particulars
    of any order to be made mandating the contents of the annual report.

[15]

The second argument made by the appellant
    engages the intersection of the terms of the LPA and the provisions of the
Limited
    Partnership Act
, R.S.O. 1990, c. L.16 (the Act).

[16]

The appellants submit the contents of the annual
    and semi-annual reports were agreed upon by the parties and fixed by the terms
    of the LPA. They contend that Penny J. could not alter those contractual arrangements
    and place additional obligations on the appellants in respect of the annual
    reports by reliance on the provisions in the Act giving limited partners certain
    rights to the production of information and material relating to the
    partnership.

[17]

Section 10 of the Act provides:

A limited partner has the same rights as a
    general partner,

(a)
to inspect and make copies of or take
    extracts from the limited partnership books at all times;

(b) to be given, on demand, true and full
    information concerning all matters affecting the limited partnership, and to be
    given a complete and formal account of the partnership affairs.

[18]

Section 10 gives limited partners very broad
    rights to information concerning all matters affecting the limited
    partnership. It was open to Penny J. to conclude the information and material
    sought by TriDelta affected the limited partnership. It was also open to him
    to determine the means by which the required disclosure should be made. We see
    no prejudice to the appellants by the direction that the material be included
    in the annual and semi-annual reports. Penny J. could have ordered the material
    disclosed to TriDelta on an annual or semi-annual basis in a separate document to
    be enclosed in the same envelope as the annual or semi-annual report. There is no
    substantive difference between this hypothetical order and the one actually
    made.

[19]

The appellants also argue that by requiring the
    material be placed in the annual report, Penny J. relieved TriDelta of having
    to demonstrate the need for the information and material on an annual basis.
    Instead, the order places the obligation on the appellants to provide the
    information on an annual basis.

[20]

This argument is not persuasive. Obviously,
    TriDelta wants the information to which it is entitled under the Act on an
    ongoing basis. As long as the partnership operates, there is no reason to think
    that TriDelta will not require the information to which it is entitled. There
    is no point in making TriDelta return to the court on an annual, or worse yet
    semi-annual, basis to make repeated applications for the same relief.

[21]

The appellants next argue that some of the information
    ordered produced goes beyond information concerning all matters affecting the
    limited partnership, and may extend to information not available to the
    appellants. This submission raises issues which are, at this point in time,
    hypothetical. The appellants do not point to any specific material or
    information which they claim is beyond the production requirements under the
    Act. Nor do they refer to material or information to which they do not have access.
    Instead, the appellants argue there is no evidence they have the information.

[22]

This argument provides no basis for varying the
    order of Penny J. At best, it points to the possibility of the need to vary the
    order in the future. If a dispute should develop over the applicability of the
    order to certain specific information, or should TriDelta seek information that
    the appellants claim they do not have and cannot get, those issues may have to
    be litigated in the commercial court, unless the parties can resolve them on
    their own.

[23]

Finally, the appellants in their supplementary
    written submissions contend that parts of the order are so vague or so broadly framed
    as to make compliance all but impossible. We think this argument must also be
    addressed in the context of any specific issue that may arise in the course of
    the partnership and the appellants attempts to comply with the order of the
    application judge. None of the terms are so vague or overly broad on their face
    as to justify varying the order. Whether one or more of the terms may prove to
    be unworkable due to vagueness or overbreadth will only become apparent in
    circumstances which may or may not arise as the order is implemented.

[24]

The appeal is dismissed. Costs of the appeal to TriDelta
    in the amount of $7,000, inclusive of disbursements and relevant taxes.

[25]

In their supplementary written argument, the
    appellants requested an opportunity to make additional oral submissions. The
    panel is satisfied that no further submissions are necessary.

Doherty J.A.

R.G. Juriansz J.A.

David M. Paciocco J.A.