E. Neil McKelvey

The appellant ophthalmologist performed cataract surgery on the respondent.

During the administration of local anaesthetic, a retrobulbar hemorrhage occurred.

The appellant noticed a small bleed but proceeded with the operation.

The respondent subsequently lost sight in her right eye due to optic nerve atrophy.

The trial judge found the appellant negligent for continuing the operation and, relying on McGhee, shifted the burden of proof of causation to the appellant.

The Supreme Court of Canada dismissed the appeal, holding that while the legal burden of proof remains with the plaintiff, causation need not be determined with scientific precision.

A robust and pragmatic approach allows the trier of fact to draw an inference of causation where the defendant's negligence makes it impossible to prove causation positively, absent evidence to the contrary.

The infant respondent was seriously injured when struck by a train operated by the appellant.

The action was commenced more than three years after the accident.

The appellant argued the action was barred by the two-year limitation period in section 342(1) of the federal Railway Act.

The respondent argued the applicable limitation period was the provincial Limitation of Actions Act, which extended the time for infants.

The Supreme Court of Canada held that section 342(1) of the Railway Act is ultra vires the federal Parliament to the extent that it purports to apply to a common law action for negligence in the operation of a railway.

The establishment of general limitation periods for personal injury is not an integral part of federal jurisdiction over railways.

The appellants claimed a sales tax exemption under s. 11(o) of the Social Services and Education Tax Act for machinery and apparatus used in their oil refinery expansion.

The Minister had never issued a definition of the exempt machinery and apparatus as contemplated by the Act.

The Court of Appeal held that no exemption could be granted without a ministerial definition.

The Supreme Court of Canada allowed the appeal, holding that in the absence of a ministerial definition, the exemption applies to all machinery and apparatus coming within the class specified in the Act, as the class is sufficiently described to be ascertainable.