Darryl A. Cruz

This addendum to an appeal decision addresses the issue of costs.

Due to a lack of agreement between the parties regarding the costs incurred below, the Court of Appeal reserved the determination of costs to the trial judge hearing the second trial.

The appellant obstetrician appealed a jury's finding of negligence and causation in a birth injury case, arguing the jury misapplied the "but for" test and that the verdict was unreasonable due to lack of evidence on timely delivery.

The appellant also claimed the trial judge improperly questioned witnesses.

The Court of Appeal dismissed the appeal, affirming the jury's application of the "but for" test, finding the verdict reasonable based on expert evidence, and concluding the trial judge's questions were proper clarifications within established judicial protocol.

The Court of Appeal for Ontario allowed an appeal in a medical negligence action, ordering a new trial.

The plaintiffs alleged delayed diagnosis of hydrocephalus in their child, leading to brain damage.

The trial jury found no breach of standard of care.

The appellate court found that the defendants' expert witness exceeded his role by opining on the credibility and reliability of the parties, thereby breaching his duty of independence.

The trial judge erred by not specifically instructing the jury to disregard these improper opinions and by failing to exclude them.

Despite the appellants' counsel not objecting at trial, the errors constituted a substantial wrong or miscarriage of justice, tainting the jury's verdict and warranting a new trial.

The plaintiffs brought a medical malpractice action against the defendant obstetricians, alleging that their negligence caused the infant plaintiff to suffer a severe brain injury.

Following a jury trial, the jury found that the defendants breached the standard of care and that the breaches caused the injuries.

However, the trial judge refused to enter judgment on the verdict, finding that the jury's answers explaining how the breaches caused the injuries were insufficient and non-responsive.

The trial judge ordered a new trial.

The plaintiffs appealed, arguing the trial judge exceeded her jurisdiction.

The defendants cross-appealed, arguing the action should have been dismissed for lack of evidence on causation.

The Divisional Court dismissed both the appeal and cross-appeal.

The majority held that the trial judge correctly concluded the jury's answers on causation were insufficient, as they merely repeated the breaches of the standard of care and failed to explain the causal link, leaving the central issue in doubt.

The appellants appealed a motion judge's decision declaring that the limitation period for putative class members remained suspended under s. 28(1) of the Class Proceedings Act following the denial of class certification.

The Court of Appeal dismissed the appeal, holding that s. 28(1) provides an exhaustive list of circumstances that resume a limitation period, and denial of certification is not among them.

Consequently, the limitation period remains suspended indefinitely following a denial of certification, a result the court noted must be addressed by the Legislature.

In a class action alleging bacterial infections from epidural injections, the defendant physician, Dr. James, moved for documentary discovery and oral examinations of class members.

The court, considering the plaintiff's novel epidemiological causation theory, granted further documentary production for relevant, non-duplicative information.

However, it denied oral examinations for most class members, ordering written interrogatories for a selected sample instead, citing concerns about litigation delay, expense, and the passive role of class members.

The representative plaintiff could be re-examined orally.

Following an obstetrical malpractice trial where the jury found the defendant obstetrician 32% liable for the infant plaintiff's severe cerebral palsy, the defendant brought a motion under Rule 52.08 to dismiss the action or order a retrial.

The defendant argued the jury gave conflicting answers on causation and that there was no evidence to support their findings on the standard of care and delay in delivery.

The court dismissed the motion, finding the jury's use of the word 'contributed' did not conflict with the 'but for' causation test, and that there was ample expert evidence supporting the jury's conclusion that the defendant's failure to promptly prepare for an emergency c-section caused the infant's brain damage.

Judgment was ordered to be entered in accordance with the jury's verdict.

During an ongoing medical negligence trial involving a minor plaintiff who suffered severe brain damage at birth, the parties disputed the phrasing of the jury question on causation.

The plaintiffs argued for the phrase 'caused or contributed to', relying on recent jurisprudence involving multiple tortfeasors.

The defendant argued for the conventional 'but for' standard.

The court held that the factual matrix was not so confusing as to preclude the conventional 'but for' test, and ordered the jury questions to be phrased using the 'but for' standard.

Following the dismissal of a motion to certify a class action regarding unreliable hair drug testing at the Motherisk Drug Testing Laboratory, the plaintiff brought a motion under s. 7 of the Class Proceedings Act, 1992 to continue her action and join approximately 200 co-plaintiffs.

The court held that the limitation periods for the putative class members remain suspended under s. 28 of the Act until the defendants successfully move to dismiss the proceeding without an adjudication on the merits.

The court also held that the test for joining co-plaintiffs under s. 7 is the same as the test under the Rules of Civil Procedure.

The motion to join the co-plaintiffs was dismissed without prejudice due to insufficient pleading of material facts.

This decision addresses whether a finding of contributory negligence against a plaintiff mother (Kimberley York) should reduce the global damages awarded to all plaintiffs, including her injured child (Cole Parliament) and husband (John Parliament), or only her personal damages.

The court held that such a reduction would only apply to the mother's personal damages, as the defendants failed to properly advance a counterclaim for contribution and indemnity against her within the applicable limitation period, as required by the Rules of Civil Procedure and the Limitations Act.

This decision, rendered during an ongoing medical negligence trial, addresses three key legal issues: the applicability of the novus actus interveniens defence, the scope of contributory negligence, and the appropriate framing of jury questions on causation.

The court found that novus actus interveniens was not applicable, as the alleged intervening act (plaintiff mother's failure to follow medical advice) was directly related to the initial alleged negligence of the defendant physicians, thus not breaking the chain of causation.

The court reserved judgment on whether Ms. York's contributory negligence would reduce the plaintiffs' global damage award, but confirmed it would apply to her personal damages.

Finally, the court ruled that jury questions on causation in complex medical malpractice cases with multiple tortfeasors should use the phrase "caused or contributed" rather than "but for" and require particulars for breach of standard of care but not for causation. interesting_citations_summary: > The decision provides a critical analysis of novus actus interveniens in professional negligence cases, drawing heavily on Salomon v. Matte-Thompson, 2019 SCC 14, to clarify that an intervening act directly related to the initial fault does not break the chain of causation but rather points to apportionment.

It also offers significant guidance on framing jury questions in complex medical malpractice cases, particularly regarding causation, by adopting the "caused or contributed" language from Sacks v. Ross, 2017 ONCA 773, over the "but for" test from Clements v. Clements, 2012 SCC 32, for jury accessibility. final_judgement: > 1.

The doctrine of novus actus interveniens has no application to this case and will not be put to the jury. 2.

The question of contributory negligence as it applies to Kimberley York’s personal damages shall be put to the jury. 3.

The question of the applicability of contributory negligence to the global damages is reserved for a later decision. 4.

Jury questions shall require reasons for findings of breach of standard of care but will not be required to give reasons for causation. 5.

The form of the jury questions will include the phrase “cause or contribute” and will be similarly framed as instructed by Lauwers, J.A. in Sacks. winning_degree_applicant: 1 winning_degree_respondent: 5 judge_bias_applicant: 0 judge_bias_respondent: 0 year: 2019 decision_number: 3996 file_number: "79524/12" source: "https://www.canlii.org/en/on/onsc/doc/2019/2019onsc3996/2019onsc3996.html" cited_cases: legislation: - title: "Negligence Act, R.S.O. 1990, c.

N.1" case_law: - title: "Webb v. Surrey Memorial Hospital Society, 80 A.C.W.S. (3d) 563 (B.C. Sup.

Ct.)" - title: "Rizzuto v. St. Michael’s Hospital, 72 A.C.W.S. (3d) 1124 (Ont.

C.J. Gen. Div.)" - title: "Salomon v. Matte-Thompson, 2019 SCC 14" url: "https://www.canlii.org/en/ca/scc/doc/2019/2019scc14/2019scc14.html" - title: "André c.

Quebec (Attorney General), [2003] RJQ 720 (Q.C.C.A)" url: "https://www.canlii.org/fr/qc/qcca/doc/2003/2003canlii47946/2003canlii47946.html" - title: "Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181" url: "https://www.canlii.org/en/ca/scc/doc/2012/2012scc32/2012scc32.html" - title: "Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387 (Ont.

C.A.), leave to appeal to S.C.C. dismissed 2018 CarswellOnt 10678 (S.C.C.)" url: "https://www.canlii.org/en/on/onca/doc/2017/2017onca773/2017onca773.html" - title: "ter Neuzen v. Korn, [1995] 3 S.C.R. 674 (S.C.C.)" url: "https://www.canlii.org/en/ca/scc/doc/1995/1995canlii72/1995canlii72.html" keywords: - Medical negligence - novus actus interveniens - contributory negligence - jury questions - causation - standard of care - professional liability - delayed diagnosis - multiple tortfeasors areas_of_law: - Torts - Medical Malpractice - Civil Procedure - Evidence --- # Court File and Parties **COURT FILE NO.:** 79524/12 **DATE:** 20190628 **ONTARIO** **SUPERIOR COURT OF JUSTICE** **BETWEEN:** Cole Parliament, an incapable person by his Litigation Guardian, Kimberley York, John Parliament and the said Kimberley York personally Plaintiffs – and – D.W. Conley and V. Park Defendants **COUNSEL:** Hilik Y. Elmaleh and M. Hershkop, for the plaintiffs Darryl A. Cruz, Dorothy E. Charach, and Joseph S. Ur, for the defendants **HEARD:** June 27, 2019 **WOODLEY J.** # Reasons for Decision ## Novus Actus Interveniens, Contributory Negligence and Jury Questions ### Part I: Overview [1] In this action, the plaintiff, Cole Parliament claims through his litigation guardian, Kimberley York, together with his parents, Ms. York and John Parliament, in their personal capacity, for damages arising out of Cole’s brain injury.

The plaintiffs allege medical negligence on the part of the defendant physicians, Dr. D.W. Conley and Dr. V. Park. [2] The trial of this action commenced on May 13, 2019, a jury was selected, and the plaintiffs opened their case on May 14, 2019.

The plaintiffs’ final witness was called on June 12, 2019, and the defendants opened their case on June 17, 2019.

The trial is ongoing. [3] The defendants raise the defence of *novus actus interveniens* against the plaintiff mother, Ms. York, for the injuries suffered by Cole when he was an infant.

The defendants did not explicitly plead this defence in their Statement of Defence and at the outset of the trial moved to amend their pleadings to include the doctrine. [4] The defendants take the position that the defence of *novus actus interveniens* was validly plead, and that this defence, together with contributory negligence, must be left with the jury.

The defendants further submit that all material facts, allegations, and principles of the defence were pleaded in 2013.

In addition, the defendants argue that the plaintiffs’ global quantum of damages must be reduced if contributory negligence is found. ### Facts [5] The plaintiffs issued their Statement of Claim on July 30, 2012 and it was served upon the defendants Dr. Park and Dr. Conley, on August 7 and September 12, 2012, respectively. [6] In their Statement of Defence delivered on September 19, 2013, the defendants denied all negligence on their parts.

The defendants denied that the plaintiffs suffered the damages alleged.

In the alternative, that if the plaintiffs suffered damages: (a) the damages are too remote and excessive to be recoverable and/or were not properly mitigated; (b) the damages were not attributable to any act or omission of the defendants, nor on the part of anyone for whom they are in law responsible, but are injuries and damages which were caused or contributed to by (i) pre-existing or independently arising conditions; (ii) the plaintiffs’ failure or refusal to follow medical advice; (iii) the plaintiffs’ failure or refusal to seek medical advice or care on a timely basis; and/or (iv) other acts or omissions of the plaintiffs.

The defendants also pleaded and relied on the provisions of the [Negligence Act, R.S.O. 1990, c.

N.1](https://www.ontario.ca/laws/statute/90n01), as amended. [7] On the first day of trial, being May 8, 2019, the defendants amended their Statement of Defence on an unopposed basis to plead the defence of *novus actus interveniens*.

More specifically, the defendants allege that any damages are attributable to Ms. York, who they claim failed to follow medical advice causing the damages and amounting to *novus actus interveniens*. ### Part II: Issues and the Law [8] The issues to be decided are as follows: a.

Is the defence of *novus actus interveniens* applicable to this case? b.

If the jury finds Ms. York contributorily negligent, should the plaintiffs’ entire damage award be reduced? c.

What form should the jury questions take as they relate to causation and is the jury required to provide reasons on causation? #### (a) Is the defence of novus actus interveniens applicable to this case? [9] It is the defendants’ position that in medical malpractice cases where delay in diagnosis or treatment is alleged, a patient’s failure to follow medical advice will break the chain of causation.

Moreover, that the defence of *novus actus interveniens* must be left with the jury because there is reasonable evidence capable of supporting it. [10] To support this position, the defendants rely on the decision of *Webb v. Surrey Memorial Hospital Society*, 80 A.C.W.S. (3d) 563 (B.C. Sup.

Ct.), which they submit implies that a patient’s failure to follow a doctor’s advice caused damages and amounts to a *novus actus interveniens*.

Similarly, the defendants argue that the decision in *Rizzuto v. St. Michael’s Hospital*, 72 A.C.W.S. (3d) 1124, (Ont.

C.J. Gen. Div.), implies that a plaintiff’s failure to follow medical advice broke the chain of causation, and therefore, causation on the defendant physician’s part was not made out. [11] The defendants argue that it is open to the jury to find that the chain of causation was broken by Ms. York through her failure to follow medical advice.

In particular, that Ms. York attended two separate appointments with two different physicians in a chain of events and that both Dr. Conley and Dr. Park provided medical advice to Ms. York that was not followed.

Moreover, that even if the jury finds that only Dr. Park provided medical advice, the chain of causation would be broken. [12] Therefore, the position of the defendants is that the jury has heard evidence upon which they could reasonably find that: a. on October 15, 1999, Dr. Conley directed Ms. York to take Cole to see a doctor to “have Cole’s head checked” and failed to follow his advice; and b. on November 13, 1999, Dr. Park directed Ms. York to take Cole “to ER for assessment” and failed to follow his advice. [13] The defendants allege that Ms. York’s failure to follow the medical advice of Dr. Conley and Dr. Park broke the chain of causation with the result that no liability flows to them regardless of any breach by them of the standard of care. [14] In contrast, the plaintiffs take the position that the defendants have failed to establish that they meet the two-part test required for the defence. [15] First, the plaintiffs argue that the defendants have failed to establish that the causal link between the fault and the injury is completely broken by any act or failure to act by Ms. York.

The plaintiffs argue that in order to break the causal link, it must be established that the new intervening act had nothing to do with the negligence of the original tortfeasor.

As a result, the plaintiffs assert that the defence rests on Ms. York’s alleged failure to follow the defendants’ negligent medical advice, which cannot break the chain of causation. [16] Secondly, that there must be a causal link between the new event and the injury.

Otherwise, the initial fault is one of the faults, and the issue of apportionment of liability may arise.

The plaintiffs argue that there is no evidence that but for Ms. York’s negligent failure to follow medical advice, that Cole would not have been injured.

Nor do the defendants assert that Cole would not have suffered injury but for the break in causation. [17] Accordingly, the plaintiffs argue that it is difficult to comprehend how Ms. York’s alleged failure to follow negligent medical advice caused Cole’s damages without the initial negligence being a cause of the damages as well.

Thus, *novus actus interveniens* does not apply; the defendants’ real argument is that Ms. York was contributorily negligent. #### Novus Actus Interveniens [18] The defendants contend that the courts’ decisions in *Webb* and *Rizzuto* imply that a failure by a patient to follow medical advice amounts to a break in causation, and that there is a causal link between this failure and the new injury, amounting to *novus actus interveniens*.

I have considered the cases relied upon by the defendants; however I do not find them persuasive in making this determination. [19] The doctrine of *novus actus interveniens* holds that “a person who commits a fault is not liable for the consequences of a new event that the person had nothing to do with and that has no relationship to the initial fault”: *[Salomon v. Matte-Thompson, 2019 SCC 14](https://www.canlii.org/en/ca/scc/doc/2019/2019scc14/2019scc14.html)*, at para. 91. [20] The recent decision of the Supreme Court of Canada in *Salomon* provides important guidance on the applicability of the doctrine of *novus actus interveniens*.

In *Salomon*, the Supreme Court in a decidedly majority decision, ordered a lawyer and his law firm to fully compensate his clients (an individual and a company), for losses suffered as a result of a referral by the lawyer to a financial advisor and personal friend who subsequently defrauded the clients of their investments. [21] At trial, the case against the lawyer was dismissed.

The Court of Appeal for Quebec overturned the trial decision and ordered the lawyer and law firm to fully compensate the clients for their investment losses, including non-pecuniary losses suffered.

The Supreme Court upheld the decision of the Court of Appeal and provided direction with respect to the issue of causation and the application of the doctrine of *novus actus interveniens*. [22] The analysis by the Court, although focused on the relationship between lawyers and their clients, is distinctly applicable to the case at bar and the relationship between a doctor and their patients.

Indeed, the Supreme Court endorsed the findings of the Court of Appeal, who relied on the principled reasoning of Baudouin J.A. in *[André c.

Quebec (Attorney General)](https://www.canlii.org/fr/qc/qcca/doc/2003/2003canlii47946/2003canlii47946.html)*, [2003] RJQ 720 (Q.C.C.A).

In *André*, the court addressed the problem of causality in professional liability cases and the mistaken application of *novus actus interveniens*, where the Court stated: > In the first place, we are not here in a real hypothesis of breaking the causal link.

For a long time, and especially in matters of professional liability (doctors, notaries, lawyers), there has been a tendency of certain judicial decisions to endorse a false application of the principle known under the Latin term *novus actus interveniens*. > > In law, for there to be genuine break in the causal link, thus justifying the discharge of the first perpetrator and retaining only the responsibility of the second, an essential condition must be respected.

As a first step, the existence of a complete cessation of the link between the initial fault and the harm must first be established, and, secondly, the restart or restart of the fault due to the occurrence of an act not directly related to the original fault.

It cannot, in all logic, be a break when there is continuity in time and therefore causal connection of faults to one another. > > In this case, it seems obvious to me that we cannot speak of a break.

We are, on the contrary, in the presence of two contributory faults, which (and this is where confusion comes from) are not, however, simultaneous, but spread over time.

Yet each of them has contributed causally to the result: at paras. 58 – 60.

The reasoning of Baudouin J.A., alongside the guidance from the Supreme Court in *Salomon*, provides clarity to the application of the defence in professional negligence cases. [23] Before *novus actus interveniens* can be raised, a wrongful act by a defendant must have occurred and the wrongful act must be a cause of the damage: *Salomon*, paras. 83 – 84.

Only then may the negligent party raise the defence. [24] Therefore, the principle of *novus actus interveniens* only arises in this case if the jury finds: a.

That Dr. Conley breached the standard of care; and b.

The breach of the standard of care was a cause of the damage, or in other words, but for the breach of the standard of care, the damage would not have occurred. [25] However, the principle of *novus actus interveniens* is not applicable unless two pre-conditions are met: (1) the causal link between the fault and the injury is completely broken; and (2) there is a causal link between that new event and the injury: *Salomon*, at para. 91.

If the pre-conditions are not met, “the initial fault is one of the faults that caused the injury, in which case an issue of apportionment of liability may arise”: *Salomon*, at para. 91. [26] The Court stated that a fault is a true cause of its logical, immediate, and direct consequences: *Salomon*, at para. 84.

The characterization of fault is largely a factual matter which depends on all the circumstances of the case. [27] As dictated by the Court in *Salomon*, a wrongful act by a third party does not shield a lawyer who failed to meet the standard of care from liability.

The wrongful act by the third party will not break the chain of causation where the breach of the lawyer’s obligation initiated the chain of events leading to the loss and the breaching party must account for this loss in full, subject to any issue of apportionment. [28] Therefore, applying the principles dictated by *Salomon*, even if Ms. York failed to follow Dr. Conley or Dr. Park’s medical advice for the care of the infant Cole, that wrongful act does not break the chain of causation as the breach of the standard of care initiated the chain of events leading to Cole’s damages.

As in *Salomon*, if the jury concludes that Dr. Conley and/or Dr. Park breached the standard of care and the breaches were a cause of Cole’s damages applying the “but for” test, “it is right and just that the breaching party account for this loss” subject to any claim for apportionment: at para. 92.

The first pre-condition of the test is not met. [29] Moreover, as Ms. York’s alleged negligence is directly related to the original fault, the second pre-condition of the test is also not met. [30] As a result, I find that *novus actus interveniens* has no application to the facts of this case and will not be left with the jury.

Given my findings on this issue, it is not necessary to address the validity of defendants’ pleadings on this point. #### (b) If the jury finds Ms. York contributorily negligent, should the plaintiffs’ entire damage award be reduced? [31] The plaintiffs concede that if Ms. York is found at fault, the defendants can claim a set-off from Ms. York to the extent of her degree of fault with respect to damages that she is personally awarded.

Thus, contributory negligence will go to the jury.

The issue that remains is whether the plaintiffs’ entire damage award should be reduced by the jury’s finding that Ms. York was contributorily negligent.

This issue will be determined later, with reasons to follow. #### (c) What form should the jury questions take as they relate to causation? [32] The Supreme Court directed the approach to causation in negligence cases in the decision of *[Clements v. Clements, 2012 SCC 32](https://www.canlii.org/en/ca/scc/doc/2012/2012scc32/2012scc32.html)*, [2012] 2 S.C.R. 181 at para. 8: > The test for showing causation is the “but for” test.

The plaintiff must show on a balance of probabilities that "but for" the defendant's negligent act, the injury would not have occurred.

Inherent in the phrase “but for” is the requirement that the defendant's negligence was necessary to bring about the injury – in other words that the injury would not have occurred without the defendant's negligence.

This is a factual inquiry.

If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails. [Emphasis by McLachlin C.J.] [33] Following *Clements*, there was a spate of different applications of the “but for” test reflected in jury questions.

A difference of opinion has arisen as to whether it is appropriate to include the words “cause” or “cause or contribute” in the causation section of the jury questions. [34] The Court of Appeal for Ontario has addressed this issue by providing guidance on the issue of jury questions in a medical malpractice case involving alleged delayed diagnosis and treatment by multiple tortfeasors in *[Sacks v. Ross, 2017 ONCA 773](https://www.canlii.org/en/on/onca/doc/2017/2017onca773/2017onca773.html)*, 417 D.L.R. (4th) 387 (Ont.

C.A.), leave to appeal to S.C.C. dismissed 2018 CarswellOnt 10678 (S.C.C.), June 28, 2018. [35] In *Sacks*, the governing principles on jury questions and jury instructions, was aptly articulated by Lauwers J.A., at para. 62: > They should be tailored to the specific findings of fact necessary to decide the case.

Jury questions should respond to the facts in issue and be logically sequential.

They should be expressed as simply and clearly as possible; a question should not be compound or contain an embedded assumption.

Jury questions should also be neutrally expressed and should not nudge the jury towards a particular result.

It is better if the questions can be answered in a “yes” or “no” format followed by a blank space in which the jury can insert a damages figure if it finds liability, and its reasons if called for.

The jury's answers should permit the judge to complete the judgment but do not necessitate the jury to provide reasons for its findings on causation. [36] It is also now accepted that in negligence cases, a jury should be asked to provide particulars for their findings of negligence as it relates to standard of care: *[ter Neuzen v. Korn](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii72/1995canlii72.html)*, [1995] 3 S.C.R. 674 (S.C.C.) at para. 53.

Otherwise, there is no requirement for the jury to give reasons for their verdict: L. Smith & J.C. Bouck, *Civil Jury Instructions*, looseleaf (Vancouver: The Continuing Legal Education Society of British Columbia, 2001) Appendix C, footnote (2). [37] In *Sacks*, Lauwers J.A. reviewed the Supreme Court’s jurisprudence on the doctrine of causation in negligence and distinguishes between “simple negligence cases” and “complex cases involving multiple tortfeasors”: at paras. 40 – 41.

Indeed, the Court recognized that delayed diagnosis medical negligence cases with multiple tortfeasors “are among the most complex to assess from the perspective of causation”: at para. 51. [38] Importantly, *Sacks* highlighted that although the Supreme Court directed the application of *Clements* beyond the single tortfeasor scenario, the Court has yet to consider a case “beyond the simple”: at para. 54.

Indeed, the Court recognized that the factual inquiry in a single defendant case is simpler, and furthermore, that “things are more complicated where the complaint is not about something the defendant did, but about something the defendant failed to do in breach of the standard of care”: at paras. 44 and 46. [39] On this point, Lauwers J.A. stated, at para. 46: > When what is in issue is not the defendant’s act, but an omission, the trier of fact is required to attend to the fact situation as it existed in reality the moment before the defendant’s breach of the standard of care, and then to imagine that the defendant took the action the standard of care obliged her to take, in order to determine whether her doing so would have prevented or reduced the injury.

Even though this exercise is bounded significantly by the actual facts, it counts as “factual” because the task is to consider how the events would actually have unfolded had the defendant taken the action she was obliged to take. [40] This “causal reasoning process”, the Court held, requires a trier of fact to engage in three basic steps to determine causation: (1) determine what likely happened in actuality; (2) consider what would likely have happened had no breach of standard of care occurred; and (3) allocate fault among the negligent defendants: at para. 47. [41] In *Sacks*, Lauwers J.A. reviewed the arguments by counsel at trial regarding the appropriate language in the jury questions, as well as the trial judge’s final ruling on the questions.

Similar to the case at hand, it was argued that the “but for” language was confusing.

In response, opposing counsel held that there was no reason to deviate from the language of *Clements*.

The trial judge ultimately agreed with the latter. [42] Lauwers J.A. disagreed with the trial judge, holding, “the causation doctrine prescribed by the Supreme Court in *Clements* must be translated into jury-accessible language”: at para. 87.

This, the Court directed, reflects the primary purpose of jury questions: to explain legal principles that jurors can apply to reach their decision: at para. 81. [43] The Court then provided an overview of the “normal causal reasoning process”, at paras. 98 – 100: > The normal causal reasoning process has three steps, as noted.

The first is to determine what likely happened in actuality.

The trier of fact must determine, on the evidence, whether the delay in treatment led to the plaintiff's injury, considering only what the plaintiff needed by way of timely diagnosis and treatment in order to avoid injury, and without considering the presence or absence of any breaches of the standard of care. > > The second is to consider what would likely have happened had the defendant not breached the standard of care.

If an actual delay led to injury, the plaintiff must establish fault: there was a breach of the standard of care on the part of one or more of the defendants that caused or contributed to the delay in diagnosis and treatment.

The third step is to allocate fault among the negligent defendants. > > The analysis of the second and third steps requires the trier of fact to determine sequentially and separately with respect to each event in the chain of events leading to the plaintiff's injury, whether there was a breach of the standard of care on the part of one or more of the defendants that caused or contributed to the delay that led to the injury.

The trier of fact, assisted by the trial judge and the parties, must "chunk out" or separate for analytical purposes, the events in the flow, and apply the causal reasoning process to each event in sequence. [44] Ultimately, Lauwers J.A. held that the language “caused or contributed” is more appropriate than “but for” while still reflecting the purpose and principles of the ruling in *Clements*.

As a result, jury questions in a medical malpractice delayed diagnosis and treatment case should be framed as follows: > (1) Have the Plaintiffs proven, on a balance of probabilities, that a delay in treatment caused [plaintiff’s] injuries? > > If the answer to that question is "yes", in respect of each individual defendant: > > (2) Have the Plaintiffs proven, on a balance of probabilities, that the delay resulting from [this defendant’s] breach of the standard of care caused or contributed to the injuries of [plaintiff]? > > If the answer to that question is "yes", in respect of each individual defendant: > > (3) How did [this defendant] breach the standard of care?

Please provide clear and specific answers. [45] Given that the case at bar is one involving alleged medical malpractice as a result of delayed diagnosis and treatment involving more than one tortfeasor, I find the Court of Appeal’s guidance in *Sacks* instructive.

As such, the jury questions will be similarly framed.

The jury will also be required, as per *ter Neuzen*, to provide particulars regarding the breach of standard of care as it relates to each defendant, but not as it relates to causation. ### Part III: Conclusion [46] For the foregoing reasons, I find that: a. the doctrine of *novus actus interveniens* has no application to this case. b. the question of contributory negligence as it applies to Kimberley York’s damages shall be put to the jury; c. the question of the applicability of contributory negligence to the global damages is reserved with reasons to be released; d. the jury questions shall require the jury to provide reasons for their findings of the breach of standard of care but will not be required to give reasons for causation; e. the form of the jury questions will include the phrase “cause or contribute” and will be similarly framed as instructed by Lauwers, J.A. in *Sacks*.

Justice S. J. Woodley Released: June 28, 2019

The plaintiffs brought a motion to disqualify the defendants' proposed expert medical witness, Dr. Karen Fleming, from testifying on the standard of care.

The court reviewed Dr. Fleming's two reports and her testimony during a voir dire, finding that her opinions were based on improper credibility assessments and fact-finding, rather than objective expert analysis.

Dr. Fleming's reports and cross-examination revealed a lack of impartiality and a preferential treatment of the defendants' evidence while disregarding the plaintiffs' evidence without adequate explanation.

The court concluded that Dr. Fleming lacked the necessary independence and objectivity to provide an impartial opinion, rendering her not a properly qualified expert under the Mohan framework.

Consequently, her evidence was deemed inadmissible, and the plaintiffs' motion to disqualify her was allowed.

The plaintiffs sought to exclude a December 17, 1999 note from Dr. Conley's Clinical Notes and Records, which contained hearsay regarding a past conversation about Cole Parliament's head size.

The plaintiffs argued the note was unreliable hearsay, not a proper business record, and highly prejudicial.

The defendants contended it was a business record and admissible.

The court applied the principled approach to hearsay, finding the note admissible as a business record under section 35 of the Ontario Evidence Act.

The court noted that the availability of all relevant witnesses (record keeper, informant, and parties to the original conversation) at trial would allow for cross-examination, satisfying reliability concerns and mitigating prejudice.

The motion to exclude the evidence was dismissed.

A case conference was held to set a schedule for the plaintiff's upcoming motion to amend pleadings and common issues in a certified class action.

The court established a timetable for the exchange of motion materials, expert reports, cross-examinations, and factums, and scheduled the motion to be heard on July 11 and 12, 2019.

The appellant appealed the dismissal of her motion to certify a class action against the Hospital for Sick Children and others regarding the systemic negligence of the Motherisk Drug Testing Laboratory.

The motions judge had found that a class proceeding was not the preferable procedure because resolving the common issues of systemic negligence would not significantly advance the individual class members' claims, which required highly individualized proof of causation and damages.

The Divisional Court dismissed the appeal, finding no error of law or palpable and overriding error in the motions judge's discretionary balancing of the preferable procedure factors.

The respondents appealed an order from the Superior Court of Justice directing a new trial on the basis that the jury's answers on causation were fatally flawed.

The moving parties brought a motion to quash the appeal, arguing that the order was interlocutory and therefore only appealable to the Divisional Court with leave.

The Court of Appeal held that an order directing a new trial is interlocutory in nature, as it does not finally determine the substantive rights of the parties but rather requires another trial for that purpose.

The appeal was quashed and transferred to the Divisional Court.

In a medical malpractice action concerning obstetrical negligence resulting in a child's severe brain damage, the jury found the defendant doctors breached the standard of care and caused the injuries.

The defendants brought a motion under Rule 52.08(1) arguing there was no evidence to support the causation finding, or alternatively, that the jury's answers on causation were unresponsive.

The trial judge found there was some evidence to support causation, but held that the jury's answers on causation were fatally flawed because they merely repeated the standard of care answers (as improperly suggested by plaintiffs' counsel) and failed to explain how the negligence caused the brain damage.

As a result, the trial judge refused to enter judgment on the verdict and ordered a new trial.

An appeal from a motion judge's decision certifying a class action and granting partial summary judgment against an anaesthesiologist in a bacterial infection outbreak case.

The motion judge certified the class proceeding and found the defendant breached his duty of care regarding infection prevention and control practices.

The appellate court allowed the appeal on procedural fairness grounds, finding that the motion judge reformulated the certified common issue without notice to or submissions from the parties, and then decided the summary judgment motion on the basis of this new formulation.

The court held that this violated procedural fairness and entitled the defendant to a new hearing.

The plaintiff moved to certify a proposed class action arising from allegedly unreliable Motherisk hair-strand drug and alcohol testing used in child protection, family, and criminal proceedings.

The court held that while the pleading disclosed a cause of action and there was evidence of a broad group of potentially affected persons, the proposed proceeding failed on common issues, preferable procedure, and representative plaintiff criteria.

The court found the alleged systemic negligence did not materially advance the class members' real claims because compensable harm depended on highly individualized proof that a particular test result was false and adversely influenced a particular proceeding.

The litigation plan for individual hearings was found unworkable and procedurally unfair.

Certification was refused.

The moving parties, former solicitors for the plaintiff, sought leave to intervene in three medical negligence actions.

The plaintiff had commenced a solicitor's negligence action against them for allegedly missing a limitation period.

The moving parties argued they had an interest in the medical actions because the outcome would affect their liability.

The court refused leave to intervene in the main medical actions, finding the solicitors had no involvement in the medical care and their participation could prejudice the existing parties.

However, the court granted them leave to intervene in the pending motion for judgment regarding the limitation issues.