COURT OF APPEAL FOR ONTARIO
RE:
NADINE SIMON AND SHAWN SIMON (Plaintiffs(Respondents)) -and- JAN LUSIS (Defendant(Appellant))
BEFORE:
MORDEN, BORINS and FELDMAN JJ.A.
COUNSEL:
Kirk F. Stevens
For the appellant
Hillel David and Richard M. Bogoroch
For the respondent
HEARD:
March 7, 2002
RELEASED ORALLY:
March 7, 2002
On appeal from the judgment of Justice Russell G. Juriansz dated October 20, 2000.
E N D O R S E M E N T
1The sole issues on the appeal are both the proper test for, and proof of, causation. The trial judge’s finding that the appellant breached the duty of care that he owed to the respondent was not challenged on the appeal.
2The trial judge held that the “but for” test of causation was not the appropriate test in this case. The respondent says that the modified objective test is the correct test. She contended that, implicitly, this was the test the trial judge must have used in concluding that the respondent, as a reasonable person, would have acted in accordance with a proper warning from the appellant doctor not to take the drug AC&C. Counsel also submits that applying the modified objective test, the onus is on the plaintiff to prove, on a balance of probabilities, what a reasonable person would have done, and that having done that, the onus then shifts to the defendant to show, on the same standard, that the plaintiff would not have acted reasonably had she been given the proper warning.
3Assuming, without deciding, that the modified objective test is the correct test of causation to apply in this case, we do not think that the test could be met on the evidence. In our view, the onus was on the respondent to satisfy the court that a reasonable person, in the circumstances of the respondent, would not have taken AC&C had she been properly warned not to do so by the appellant doctor: see Arndt v. Smith, (1997), 148 D.L.R. (4th) 48 (S.C.C.) at p. 152.
4In this case, the respondent was not asked what she would have done had she been properly warned of the danger of AC&C to her ulcer condition. Moreover, she was warned by Dr. Jenkins in 1996 to discontinue taking AC&C. However, she either continued to take it, and was taking it when she first saw the appellant in 1997, or at least she began to take it again in May of 1998. Therefore, on the evidence, her own conduct could not satisfy the test of what a reasonable person in her circumstances would have done had she been given an adequate warning by the appellant.
5Mr. David submits that that evidence does not address the issue directly because the finding of the trial judge was that the appellant had a duty not only to warn the respondent not to take AC&C, but also to educate her as to the risks of so doing, and the serious consequences of taking the drug with her ulcer condition. He submits that as Dr. Jenkins’ warning was a bare warning without education, one cannot infer from the evidence that she disobeyed it, that she would have disobeyed a full explanation and education, had they been given.
6We cannot accept this submission. Whether the respondent would have followed a full warning of this kind was, of course, a subject particularly within her knowledge and, clearly, the burden was on her to prove this fact. This was especially so in light of the evidence that she did not heed Dr. Jenkins 1996 warning. She gave no evidence on the subject. In fact, as indicated, the evidence of her past and ongoing conduct was to the contrary.
7In our view, therefore, the trial judge erred in finding that the appellant’s breach of his duty caused the respondent any damage.
8The appeal is therefore allowed with costs, the judgment of the trial judge is set aside, and the action is dismissed with costs to be assessed on a partial indemnity basis.
9Based on the amount in issue on the appeal (approximately $45,000) and the fact that a breach of the standard of care by the appellant was found at trial and not appealed, we fix the appellant’s costs of the appeal on a partial indemnity basis at $10,000.
Signed: “J.W. Morden J.A.”
“S. Borins J.A.”
“K. Feldman J.A.”