James M. Lepp

The appellants, a mother and infant who suffered brain damage during a vaginal birth after caesarean section (VBAC), appealed a Court of Appeal order setting aside a trial judgment due to the trial judge's extensive copying of the plaintiffs' submissions.

The Supreme Court held that incorporating the material of others in reasons for judgment does not, without more, require the decision to be set aside; the presumption of judicial integrity is rebutted only where copying would lead a reasonable person to conclude the judge did not independently consider the issues.

On the merits, the Court affirmed liability against the prenatal obstetrician for failure to obtain informed consent to VBAC, but set aside findings of liability against the hospital, nurse, and other physicians for lack of causation.

The appellant, an infant who suffered severe brain damage during a mid-level forceps delivery, appealed from the Court of Appeal's reversal of the trial judge's finding of liability against the respondent obstetrician.

The trial judge found the respondent breached the standard of care by failing to have surgical back-up immediately available before attempting the forceps procedure and by failing to obtain the mother's informed consent.

The Supreme Court of Canada restored the trial judgment, holding the trial judge committed no palpable and overriding error in finding causation on the "but for" test.

The matter was remitted to the Court of Appeal on the damages issue.