Court of Appeal for Ontario

Date: 20210603 Docket: C68163

Benotto, Miller and Trotter JJ.A.

Between

Maria Angelica E. Uribe, Ricardo Adolfo Uribe, Elijah Richardo Uribe, a minor, by his litigation guardian, Maria Angelica E. Uribe Plaintiffs (Respondents)

And

Grand River Hospital, Dr. Nickoli Tsandelis, S. Niyssonen, R. Brzorowski, M. Godwin, and Jane Doe Defendant (Appellant)

Counsel: Darryl Cruz and Christine Wadsworth, for the appellant Daniel Fife and Maple Anne Cameron, for the respondent

Heard: April 23, 2021 by video conference

On appeal from the judgment of Justice James R.H. Turnbull of the Superior Court of Justice, dated December 6, 2019.

Benotto J.A.:

Overview

1The appellant Dr. Nickoli Tsandelis is an obstetrician who treated Ms. Uribe during her pregnancy and delivered her baby. A jury concluded that his negligence caused brain damage to the baby.

2Ms. Uribe’s pregnancy was uneventful until the baby’s heart rate decelerated 52 minutes before delivery. The obstetrical nurse applied standard procedures and the heart rate stabilized. She telephoned the appellant who was in his office about five minutes away. He told her to let him know if the heart rate dropped again. He did not immediately return to the hospital.

3About fifteen minutes later, the heart rate decelerated again and soon thereafter there were additional signs of fetal distress. The appellant was in his car on the way to the hospital when the nurse called him again advising him about the second deceleration.

4The baby had to be delivered immediately through a cesarean section. However, the operating room had already been prepared for an elective operation. The other patient had to be moved, the room sterilized, and Ms. Uribe anaesthetized and prepared for surgery. By the time the baby was delivered, he had endured too long without oxygen and suffered serious brain damage.

5Ms. Uribe, together with her husband and as litigation guardian for her child, brought an action against Dr. Tsandelis alleging that he was negligent by not returning to the hospital or preparing for a caesarean section immediately after the first phone call from the nurse.

6A jury found that the appellant had breached the standard of care and that this caused the damage. The jury attributed 32% responsibility to the appellant and the rest to the hospital and other defendants. (The hospital and other defendants had previously settled pursuant to a Pierringer Agreement.)

7Dr. Tsandelis appeals on the basis that the jury erred with respect to causation because they failed to apply the “but for test” and that there was no evidence that the baby would have been delivered in time to avoid the brain damage. He further submits that the trial judge unfairly intervened in the questioning of witnesses.

8For the reasons that follow, I would dismiss the appeal.

Facts

9Maria Angelica Uribe was referred to Dr. Tsandelis by her family physician. Dr. Tsandelis, an experienced obstetrician and gynecologist, had an office five minutes away from the Grand River Hospital where he had privileges.

10Ms. Uribe’s pregnancy was considered low risk. It proceeded uneventfully. She was admitted to the hospital on April 28, 2010 and given Cervidil to induce labour. She returned to the hospital early the following morning in labour. She was admitted to the hospital and assigned a room on the delivery floor. Saara Nyyssonen took over as her dedicated obstetrical nurse.

11By 9:00 a.m. labour had stopped progressing. The cervix was not dilating further. Dr. Tsandelis saw her and had no concerns but explained that a caesarian section would most likely be necessary. He returned to his office. There were two other obstetricians in the hospital that morning, including one who was on-call. By 9:30 a.m., labour had not progressed despite Ms. Uribe being given oxytocin to assist in cervical dilation.

12At 9:57 a.m. the baby’s heart rate decelerated. The nurse increased the inter-venous fluid, turned Ms. Uribe and watched the fetal heart rate. It stabilized at around 10:02 a.m. The nurse telephoned Dr. Tsandelis. He told her to call him if there was another deceleration. He remained at his office and saw one or two more patients.

13Between 10:17 a.m. and 10:18 a.m., the fetal heart rate again decelerated. At 10:20 am, the baby restabilized and the nurse examined Ms. Uribe vaginally and found no evidence of meconium, which would indicate fetal distress. At 10:25 a.m., there was a total occlusion of the umbilical cord, cutting off blood and oxygen supply to the baby. The nurse examined Ms. Uribe again and found meconium. At 10:27 am, the nurse called Dr. Tsandelis, who was in his car and on the way to the hospital.

14Meanwhile, another patient had been taken into the operating room at 10:20 a.m. for a pre-arranged elective caesarian section booked for 10:30 a.m. The one other operating room had not yet been cleaned from a prior procedure.

15Ms. Uribe was in the operating room at 10:35 a.m. The appellant arrived at 10:40 a.m. The other members of the birthing team were not ready to perform the surgery. The anesthetist only started anesthesia at 10:40 a.m. The operation began at 10:48 a.m. One minute later, the baby was delivered. He suffers from severe cerebral palsy and other serious medical conditions.

The SOGC Guidelines

16The Society of Obstetricians and Gynecologists of Canada (SOGC) [1] provide guidelines which address the response when the fetal heart rate drops to the levels observed here. When a deceleration occurs of more than 3 and less than 10 minutes, the doctor must promptly prepare for delivery.

17The respondents’ experts testified that the appellant should have returned to the hospital immediately upon receiving the first call from the nurse. The appellant’s experts testified that he did not breach the standard of care by remaining in his office.

18It was generally agreed that brain injury would have occurred quickly after the 10:25 occlusion. One expert said the window for delivery was 8 to 12 minutes; another said 8 to 15 minutes. Either way, the timing was critical. It was agreed by the experts that if the baby had been delivered within the window, or before the occlusion, the severe damage would not have occurred.

The Jury Verdict

19The jury’s task was to determine whether the appellant had breached the standard of care, and to determine causation. Because the other defendants had settled, the jury was to then assess whether the hospital and/or nurses breached the standard of care and, if so, whether causation with respect to them had been proved. Finally, the jury was to apportion liability as between Dr. Tsandelis and the hospital/nurses.

20The jury considered first the questions related to Dr. Tsandelis, then the hospital and/or nurses and finally the apportionment of damages.

21With respect to Dr. Tsandelis, the jury was asked the following questions and gave the following answers.

Standard of Care

1. (a) Have the plaintiffs proven on a balance of probabilities that Dr. Tsandelis breached the standard of care of a reasonable prudent obstetrician on Ontario? Yes (b) If your answer to question 1(a) is yes, how did Dr. Tsandelis breach the standard of care? Please provide clear and specific answers: At the time of the first phone call from Nurse Nyyssanen the Guidelines of SOGC were not followed by Dr. Tsandelis to prepare for delivery. The SOCG Guidelines state that when there is a single abnormal intrapartum electronic fetal monitor tracing of (more than 3 less than 10) minutes, health professionals must prepare for delivery (Exhibit 4, pg. S37/38)

Causation

2. (a) If your answer to 1(a) is yes, you must answer the following question. Have the plaintiffs proven on the balance of probabilities that but for the breach(es) of the standard of care by Dr. Tsandelis, [the baby] would not have suffered brain damage? Yes (b) If your answer to question 2(a) is yes, how did Dr. Tsandelis’ breach(es) of the standard of care cause [the baby’s] brain damage? Please provide specific answers: The fact that Dr. Tsandelis didn’t follow the SOGC Guideline, “prepare for delivery”, contributed to [the baby’s] eventual brain damage. For example, Dr. Tsandelis didn’t initiate the birthing team &/or the O.R. at the critical time of the 1st deceleration, valuable time elapsed. If Dr. Tsandelis would have secured the O.R. prior to the elective c-section patient being moved in at 10:20, the O.R. would have been ready for Maria and [the baby] would have been delivered sooner avoiding the asphyxia altogether. The c-section could have been performed right away & there would be no need to wait on necessary support personnel because at the time of the 1st deceleration it wasn’t an urgent matter yet. The rest of the birthing team that were already booked for the elective c-section at 10:30 could have been used by any O.B. performing the c-section of Maria.

22With respect to the hospital/nurses, the jury found that Dr. Tsandelis had established both a breach of standard of care (question 3(a)) and causation (question 4(a)).

23With respect to allocation of damages, the jury was asked the following question and gave the following answer:

Allocation

5. If you have answered yes to questions 1(a), 2(a), 3(a) and 4(a), you must answer the following question. If you find that Dr. Tsandelis and the Hospital/nurses breached the standard of care and that those breaches were causative of [the baby’s] brain damage, please state what percentage of liability is allocated to each of the defendants below. The sum of the stated percentages must total 100%. Dr. Tsandelis 32% Grand River Hospital/Nurses 68% Total 100%

Motion Under R. 52.08(1)

24After the jury’s verdict, the appellant brought a motion under r. 52.08(1) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, requesting that the trial judge not enter the judgment and either dismiss the action or order a new trial. The trial judge dismissed the motion and ordered judgment to be entered in accordance with the jury verdict.

25I discuss this in more detail below.

Issues on Appeal

26Dr. Tsandelis appeals the judgment alleging that the trial judge erred by (i) failing to dismiss the action or order a new trial pursuant to r. 52.08(1); and (ii) by improperly questioning witnesses during the trial.

Analysis

27The appellant frames the issues as an appeal from the trial judge’s dismissal of the r. 52.08 motion. However, the two grounds for the motion are the primary issues in this appeal. Both relate to causation: (i) that the jury did not apply the “but for” test for causation; and (ii) the jury verdict was unreasonable because there was no evidence that the baby would have been delivered early enough to avoid the damage.

28I therefore address the issues as follows:

1. Did the jury apply the but for test for causation?
2. Was the jury verdict unreasonable?
3. Did the trial judge err by dismissing the r. 52.08(1) motion?
4. Were the trial judge’s questions improper?

The “but for” test

29Once it is established that the defendant has breached the duty of care, the trier of fact moves to consider causation. The but for test for causation was set out in Clements v. Clements, 2012 SCC 32, [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 in original.]

30The appellant argues that the jury did not apply this test, but rather applied the material contribution test, which the jury was not charged on. The parties on appeal agree that the but for test was the correct test to charge the jury on and that the material contribution test did not apply to these facts. The appellant points to the jury’s answer to question 2(b):

The fact that Dr. Tsandelis didn’t follow the SOGC Guideline, “prepare for delivery”, contributed to [the baby’s] eventual brain damage. [Emphasis added.]

31I do not agree that the jury’s words “contributed to” mean that the material contribution test was applied. The words responded to the questions asked and – as jurisprudence demonstrates – are consistent with the but for test.

32The jury was asked to determine causation and then to determine allocation. Note the jury instructions:

[C]ausation is established if the evidence satisfies you that it is more likely than not that [the baby] would not have suffered brain damage but for the negligent conduct or breach of the standard of care by Dr. Tsandelis. In other words, although you do not have to find that it was the sole cause, does the evidence prove that the negligent conduct...was necessary to bring about [the baby’s] brain damage. [Emphasis added.]

And further:

[T]he defendant’s conduct need not be the sole cause. It does not have to be the most important cause. However, it must have been a necessary cause of the harm. The plaintiffs must show on a balance of probabilities that the injury would not have occurred without the defendant’s negligence. Depending on your answers to some of the questions, you will be asked to determine the issue of causation with respect to Dr. Tsandelis and the nurses and Grand River Hospital. If you find that the acts or omissions of both Dr. Tsandelis and/or the nurses and/or the Grand River Hospital caused [the baby]’s brain damage, then as I pointed out to you earlier, you’ll be required to apportion a degree of responsibility of each party as I pointed out in reviewing the question. [Emphasis added.]

33It is not surprising that, when there is more than one potential tortfeasor, language relating to contribution would arise. This is particularly so when the jury is also required to apportion damages. This was addressed in Clements at para. 12:

In some cases, an injury — the loss for which the plaintiff claims compensation — may flow from a number of different negligent acts committed by different actors, each of which is a necessary or “but for” cause of the injury. In such cases, the defendants are said to be jointly and severally liable. The judge or jury then apportions liability according to the degree of fault of each defendant pursuant to contributory negligence legislation.

34When the jury is asked to consider contributory negligence, it is understandable that it would use the language of “contributed to”. It does not mean that the instructions with respect to the but for test or causation were not followed, or that the jury applied the material contribution test. The jury response continued to state that, if Dr. Tsandelis had met his duty by preparing for delivery after the first deceleration, “the O.R. would have been ready for Maria & [the baby] would have been delivered sooner avoiding the asphyxia altogether.” This response indicates that the jury concluded that, but for the appellant’s failure to meet the standard of care, the brain damage would not have happened.

35As this court recently said in Donleavy v. Ultramar Ltd., 2019 ONCA 687, 60 C.C.L.T. (4th) 99, at para. 72:

Even in the “but for” context, there are situations involving multiple defendants where courts have used “contribution” language to recognize that a defendant’s negligence is “a” cause of the plaintiff’s injury. This is a potential source of confusion. The phrase “caused or contributed” is used in the Negligence Act, R.S.O. 1990, c. N.1, s. 1. As Lauwers J.A. observed in Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387, leave to appeal refused [2017] S.C.C.A. No. 491, at para. 117, this is the way the causation test has been described in several cases in the Supreme Court (including as I noted earlier in Athey), and in this court; see also White v. St. Joseph’s Hospital (Hamilton), 2019 ONCA 312, at para. 25. Causation is made out under the “but for” test if the negligence of a defendant caused the whole of the plaintiff’s injury, or contributed, in some not insubstantial or immaterial way, to the injury that the plaintiff sustained. Causation requires a “substantial connection between the injury and the defendant’s conduct”: Resurfice, at para. 23, Clements, at paras. 20-21, 28. As Paciocco J.A. noted in Smith v. Safranyos, 2018 ONCA 760, at para. 128, McLachlin C.J.C.’s reference to “a robust and common sense application of the ‘but for’ test of causation” is a “manifestation of this limit”. Used in this way, the conclusion that one or more defendants “materially contributed” to a plaintiff’s injury or loss simply recognizes that the defendant’s negligence was not the only cause.

36Likewise, here. The jury’s statement that the appellant’s conduct contributed to the damage merely recognizes that there was more than one cause. Note that in Donleavy, this court was considering the words of a trial judge, not a jury comprised of lay persons.

37When there is more than one tortfeasor, contributory language might arise. It does not mean the wrong causation test was used. It is clear from the jury’s answer that the proper test was used.

Unreasonable verdict

38The appellant submits that there was no evidence from which the jury could conclude that the damage would not have occurred if the appellant had not been negligent. In other words, there is no evidence that the baby would have been delivered earlier and therefore the verdict is unreasonable.

39A jury is entitled to draw reasonable inferences from accepted evidence. In Stilwell v. World Kitchens, 2014 ONCA 770, 327 O.A.C. 146, this court said, at paras. 32-34:

[I]t is important to have regard to two well-developed and long-standing principles of law related to civil jury trials.

First, the standard of review of civil jury verdicts is exceptionally high. A civil jury’s verdict should be set aside only where it is so plainly unreasonable and unjust that no jury reviewing the evidence as a whole and acting judicially could have arrived at the verdict.

Second, a jury’s verdict is entitled to a fair and liberal interpretation in light of the evidence and of the circumstances. Answers by a jury should be given the fullest possible effect and supported, if possible, by any reasonable construction. A new trial should be ordered only where the jury seems to have confused the issues at trial, it is doubtful whether the jury paid attention to the real point in issue, and the questions answered or unanswered leave the real issue in doubt and ambiguity. [Citations omitted.]

40The appellant submits that there was no evidence from which the jury could come to a conclusion that, had the appellant met the standard of care, the baby would have been delivered before the damage occurred. He submits that general statements that the baby could have been delivered “earlier” do not satisfy the causation requirement.

41The appellant relies on Salter v. Hirst, 2011 ONCA 609, 341 D.L.R. (4th) 231. In Salter, this court concluded that, while the doctor was negligent in not transferring the patient to another hospital for further testing, there was no expert evidence to support the conclusion that the delay caused or contributed to the patient’s paraplegia. That is not the case here.

42Here there was direct evidence from which the jury could conclude that, had the appellant not breached the standard of care, the caesarian section would have been done before the damage occurred. The jury found that the appellant breached the standard of care because he did not prepare for delivery after the first deceleration. Had he done so he would have secured the operating room. The operating room would have been ready for Ms. Uribe and the baby would have been delivered before the damage. The jury said this:

If Dr. Tsandelis would have secured the O.R. prior to the elective c-section patient being moved in at 10:20, the O.R. would have been ready for Maria and [the baby] would have been delivered sooner avoiding the asphyxia altogether.… The rest of the birthing team that were already booked for the elective c-section at 10:30 could have been used by any O.B. performing the c-section of Maria.

43This was a logical and available conclusion from the evidence that he should have returned to the hospital. Dr. Barrett and Dr. Farine testified that the appellant should have gone to the hospital immediately after the first call from the nurse to assess the situation directly. Dr. Farine testified that if the appellant had been present at the hospital after the first phone call, the delivery would have occurred very quickly. Dr. Barrett testified:

[T]his is the time to do a caesarian section and get a good outcome. It is absolutely indicated here. Again, my point is, even if you don’t do it there, you come to the hospital. You be there if you start the oxytocin. You are not in your office waiting for the disaster to happen. [Emphasis added.]

Dr. Barrett also said that:

[A]t this time I believe there was an anesthesia, I believe there was an operating room. The patient they could have easily just moved her and done a caesarian section.

44Recall the timing. The first phone call was at 10:02. Dr. Tsandelis was five minutes away and could have been at the hospital by 10:07 at which point he would have seen the fetal heart rate tracing, examined Ms. Uribe and called for an immediate caesarian section. At the very least, she would have been in the operating room by 10:25 when the total occlusion occurred. Even if he had not returned to the hospital, had he instructed staff to prepare for delivery, there were two other obstetricians there to conduct the surgery.

45Consequently, the jury had the evidence to conclude that the caesarian section would have been done in time to avoid the brain damage. It was open to the jury to accept the evidence of Dr. Barrett and Dr. Farine and conclude that the caesarian section would have been done within 8-15 minutes of the total occlusion, which would have avoided brain damage. The conclusion was not unreasonable.

Rule 52.08 motion

46After the jury was discharged, the appellant moved under r. 52.08 on the basis that the jury failed to apply the but for test and that there was no evidence of causation. The appellant asked the trial judge to either dismiss the action or direct that it be retried with another jury.

47The rule provides:

DISAGREEMENT OF THE JURY

52.08 (1) Where the jury, (a) disagrees; (b) makes no finding on which judgment can be granted; or (c) answers some but not all of the questions directed to it or gives conflicting answers, so that judgment cannot be granted on its findings,

the trial judge may direct that the action be retried with another jury at the same or any subsequent sitting, but where there is no evidence on which a judgment for the plaintiff could be based or where for any other reason the plaintiff is not entitled to judgment, the judge shall dismiss the action.

48Here the jury did not disagree. Nor did the jury fail to answer all of the questions. In my view the jury did not fail to make findings on which judgment could be granted.

49Nonetheless, the trial judge thoroughly and correctly addressed the appellant’s submissions. He examined the evidence in detail to conclude that there was evidence to support the jury verdict and used the proper foundation for reaching the verdict.

50For the same reasons that I have set out above, the trial judge correctly determined that the motion should be dismissed.

Trial judge’s questions

51The appellant submits that the trial judge improperly questioned witnesses by introducing a new theory of liability supporting the respondent’s case. He submits that the theory on which the jury found liability was a failure to prepare for delivery after the first phone call from the nurse.

52The appellant points to sections of the evidence of Nurse Nyyssonen, Dr. Dan Farine (the respondents’ expert) and Dr. John Smith (the appellant’s expert). In each case, the trial judge posed the questions at the conclusion of the witness’s evidence and then asked counsel if there were any questions arising from his. The relevant portions of the transcript are as follows.

Saara Nyyssonen

THE COURT: I just have one or two questions for you. At or about 10:20, you indicated you understood the baby was in distress? A. Yes. THE COURT: And you realized that a C-section was going to have to be performed? A. Yes. THE COURT: You realized Dr. Tsandelis had to be notified right away? A. Yes, I believe, or was he already notified. I'm not sure. 10:25 he was. THE COURT: Right. A. According to this, yes. THE COURT: And do you recall if it was you who contacted Dr. Tsandelis or was it someone else? A. I believe – this, again, I can't say a hundred percent, but I believe it was me who talked to him, but whether I initiated – whether somebody else initiated the call. THE COURT: And you'd have expressed to him the urgency of the situation? A. Yes. THE COURT: At any time did he direct you to have the on-call obstetrician to immediately perform the C-section? A. No, I don't recall that at all. THE COURT: And if he had, would you have noted it? A. Yes. THE COURT: And had the on-call... A. As it was related to me. THE COURT: Right. A. That knowledge. If it had been related to me, I would have charted it. THE COURT: And as the most responsible doctor, was it he who would have to give that direction, in your practice? A. Yes.

Dr. Dan Farine

THE COURT: I just might have a question or two. Doctor, I, I just have one question. Doctor Tsandelis got the phone call around 10:25. What’s the, what's the practice, what – I guess the question is could he at that stage have directed that the crash C-section be performed by the on-call obstetrician? A. Absolutely. THE COURT: All right. A. He, he should have asked, "Is somebody there that can do it?" And, and he should say, "I'm on my way, I'll be there as fast as I can, but somebody else can start it." THE COURT: Okay, thank you. Any questions from mine? MR. BENNETT: No, Your Honour. THE COURT: Mr. Cruz? MR. CRUZ: Dr. Farine, His Honour's question was about the phone call at 10:25, you have nothing in your reports about that issue, right? A. Right. MR. CRUZ: Thank you,

Dr. John Smith

COURT: [Referring to exhibit 4] So my question is, when the document, the ALARM document says prepare for discovery[sic] – or delivery, and the SOGC document says, start making arrangements for delivery, notify all the services. From your review of the record, is there any reason why that couldn’t have taken place immediately after the phone call? A. It could have taken place then, yes, but you mean at about 10:10, or 10:12? THE COURT: But – right. Just.... A. Yes, you could have done that. Again, doing a caesarean section at that point wouldn’t be unreasonable, but also since the baby looked very well, carrying on – and again, recalling that.... THE COURT: I'm more, I'm more interested in just putting – getting the pediatric people, anesthetic people on standby... A. Yeah, well, they're.... THE COURT: ...and going to the hospital. Is that.... A. Well she's at the hospital, and those.... THE COURT: No, I'm talking about the doctor. A. Oh, for Dr. Tsandelis, you wonder if it's possible? THE COURT: Getting the process going in case a C-section is necessary. A. Yes, that could be done. THE COURT: All right. Okay. And that would be within the, the ambit envisaged in both documents? A. Yes, but again, this is a team document, so prepare for delivery doesn't mean that the obstetrician has to be there. The, the delivery can be prepared... THE COURT: Of course, you can phone.... A. ...for, for – like... THE COURT: At 10:10. A. ...by the team, right. THE COURT: Exactly. A. And they are.... THE COURT: The doctors are out? A. Well, yes, or for the doctor that's there.

53These questions were not improper.

54A trial judge is entitled to question witnesses for clarification by intervening in the testimony of witnesses. In Chippewas of Mnjikaning First Nation v. Ontario, 2010 ONCA 47, 265 O.A.C. 247, at paras. 231, 238 and 243, leave to appeal refused, [2010] S.C.C.A. No. 91, this court considered questioning by a trial judge:

An examination of whether a trial judge has unduly intervened in a trial must begin with the recognition that there are many proper reasons why a trial judge may intervene by making comments, giving directions or asking questions during the course of a trial. A trial judge has an inherent authority to control the court's process and, in exercising that authority, a trial judge will often be required to intervene in the proceedings.

On occasion, trial judges may be required to play a more active role in asking witnesses questions. However, when they do, it is important that they use care and not create an impression through the questioning process of having adopted a position on the facts, issues or credibility.

All of that said, appellate courts are reluctant to intervene on the basis that a trial judge "entered the arena" and improperly intervened in a trial. There is a strong presumption that judges have conducted themselves fairly and impartially. … In the end, an appellate court should only intervene if satisfied that the trial judge’s interventions, considered in the context of the entire trial, created a reasonable apprehension that the trial judge was biased.

55The trial judge here followed the protocol referred to by this court said in R. v. Danial, 2016 ONCA 822, at para. 5:

A trial judge is entitled to ask questions for clarification. The trial judge here followed the long standing protocol articulated in R. v. Stuckey, 2009 ONCA 151 at para 64. He waited until the conclusion of the witness’ testimony, asked questions for clarification on a narrow issue, and allowed further re-examination. That some of the questions towards the end of the series of questions may have been leading would not lead a reasonable observer being apprised of all the facts to conclude that the trial judge was not impartial.

56Questions by a trial judge may be problematic when they either disclose bias or lead to trial unfairness. There is a presumption of impartiality on the part of a trial judge and the trial judge’s questions do not disclose bias. Apprehension of bias was not alleged by the appellant.

57Instead, the appellant alleges that the trial judge introduced a new theory of liability and this was unfair. The new theory alleged is that the appellant failed to prepare for delivery after the first phone call. I do not agree that this was a new theory. Nor do I agree that it was introduced by the trial judge.

58The fact that the appellant did not immediately prepare for delivery at 10:02 a.m. was squarely at issue throughout the trial. Exhibit 4 was the SOGC Fetal Health Surveillance Guideline. At pp. S37-38 of the Guideline, fetal heart rate deceleration is discussed:

Abnormal Intrapartum Electronic Fetal Monitoring Tracing

In the presence of an abnormal fetal heart rate pattern, usually operative delivery should be undertaken promptly unless (1) there is clear indication of normal fetal oxygenation by means of scalp pH assessment or (2) spontaneous delivery is imminent. Scalp sampling should not be considered in the case of prolonged deceleration of greater than three minutes. Usual action in the presence of an abnormal tracing includes preparing for operative delivery (operative vaginal delivery or Caesarean section) and notifying pediatric and anaesthetic services.

59This was discussed during the evidence of experts for the respondents and the appellant. Dr. Barrett, the expert for the respondents, was referred to the fetal heart-rate tracing and the SOGC guidelines. He testified as follows:

And you can see in the abnormal tracing, we have a single prolonged deceleration, more than three minutes, but less than 10 minutes places it into the abnormal category.

So usually if you have an abnormal pattern, you've got to deliver this baby, unless you can be sure that the baby is fine. And they mention how you can be sure. It's an extra test that you have to do. The scalp stimulation is an examination of the mom, and what we do is we stimulate the baby's scalp to get a clear reaction of the baby. You get an acceleration. That's one way of assessing that the baby is okay, you can do that, or you actually measure by doing the PH, then it might be okay. But you've got to be there to do this. You've got to attend the patient. And, you know, in this case, even, even if you could assume that the baby was fine, which you can't do until you're there, you've still got to be there to see what happens again when you restart the Oxytocin. Just to stay at home and to ask the nurses is, is in my - after this abnormal deceleration, is, in my opinion, against the guidelines and against the standard of care.

60During the cross-examination of Dr. Bernstein, the appellant’s expert, he was asked the following questions and gave the following answers:

Q. And turning to the Exhibit 4, page S37, which is the chart, the table, we've agreed that when we're plugging in the facts of our case, it fits squarely in this part of the chart here. The five-minute prolonged deceleration is longer than three and less than ten minutes. It is a single prolonged deceleration, right? A. Correct. Q. And then if we go down to action required, we can agree that the standard sets out that the obstetrician is to review overall clinical situation, obtain scalp pH if appropriate, and prepare for delivery. Agreed? A. That's what it says. Q. That is the standard? A. Yes. Q. And you agree that usually operative delivery should be undertaken promptly, right: That’s what it says? A. That’s what it says. Q. So the only, the only potential exception to this guideline is if delivery is imminent, and it’s not, right? A. Yes. Q. And, of course, vaginal delivery is not really an option in this case because of the presentation of the patient? [2] A. Correct. Q. So that means prepare promptly for C-section. Do you agree that’s what it says? A. That's what it says. Q. It also says not only is the obstetrician to prepare promptly for caesarian section, but he's to notify pediatric and anaesthetic services, right? A. Correct. [Emphasis added.]

61This was not a theory introduced by the trial judge. It was clearly in issue and there is nothing unfair or improper about the questions. (While not determinative of the issue, I note that experienced trial counsel raised no concern when the questions were asked.)

Conclusion

62I would dismiss the appeal with costs to the respondents fixed in the agreed upon amount of $20,000 inclusive of disbursements and HST.

Released: June 3, 2021 “M.L.B.” “M.L. Benotto J.A.” “I agree B.W. Miller J.A.” “I agree Gary Trotter J.A.”

[1] Exhibit 4 [2] It was agreed that vaginal delivery was not possible because cervical dilation had stopped progressing.