Anita M. Varjacic

The respondents brought a motion requesting the Court of Appeal vary its order for a new trial to an order remitting the matter to the trial judge.

The Court declined to grant the relief, finding it would not be appropriate to ask the trial judge to revisit her conclusions on the critical causation issue based on the Court's reasons.

The motion was dismissed without costs.

The respondents sued the appellant hospital and several doctors for medical malpractice following the birth of their daughter, who suffered severe brain damage due to asphyxia during labour.

The trial judge dismissed the claims against the doctors but found the hospital vicariously liable for its nurses' failure to properly monitor the fetal heart rate between 6:30 and 7:00 p.m.

The trial judge inferred that proper monitoring would have detected the asphyxia, leading to an expedited delivery that would have spared the child's injuries.

The Court of Appeal allowed the hospital's appeal and ordered a new trial, finding that the trial judge misapplied the law of causation by using a 'robust and pragmatic approach' to infer causation without reviewing and making necessary findings on conflicting expert evidence regarding whether the earlier period of asphyxia was actually detectable by intermittent auscultation.

The appellants appealed an order dismissing their medical malpractice action on a motion for summary judgment because it was commenced outside the one-year limitation period under the Health Professions Procedure Code.

The appellants argued the motion judge erred by refusing to consider medical evidence acquired after the action was commenced.

The Court of Appeal dismissed the appeal, agreeing that the relevant period for the discoverability doctrine is before the action is commenced, and the appellants knew or should have known the material facts to base their claim prior to the expiry of the limitation period.