COURT OF APPEAL FOR ONTARIO
CITATION: Ibrahimova v. Cavanagh, 2026 ONCA 573
DATE: 20260807
DOCKET: COA-25-CV-1192
Copeland, Monahan and Gomery JJ.A.
BETWEEN
Tamara Ibrahimova and Oleksii Gubenko
Plaintiffs (Respondents)
and
Angela Dawn Cavanagh*, Sivanesan Kalaichandran and David John Anthony Ponesse
Defendants (Appellant*)
Matthew P. Sammon, Madison Robins and Evan Linn, for the appellant
Barbara Legate, Alex Wolfe and Luke Kilroy, for the respondents
Heard: May 21, 2026
On appeal from the judgment of Justice John R. Sproat of the Superior Court of Justice, dated August 22, 2025, with reasons reported at 2025 ONSC 4808.
[1] The trial judge found the appellant, Dr. Angela Cavanagh, negligent in failing to recognize that Tamara Ibrahimova had suffered a previable, prelabour, preterm rupture of membranes (“pPPROM”). He further found that, but for Dr. Cavanagh’s negligence, Ms. Ibrahimova would have avoided septic shock resulting from delayed treatment for pPPROM and the catastrophic injuries that flowed from this.
[2] Dr. Cavanagh does not challenge the trial judge’s finding that she was negligent but says that he erred in finding that her negligence caused Ms. Ibrahimova’s damages. She argues that the trial judge’s causation findings were based on speculation, that he misconstrued and ignored evidence, and that he relied on inadmissible evidence.
[3] I would dismiss the appeal. I am not persuaded that the trial judge erred in law or principle or made any palpable and overriding errors of fact. He followed the appropriate legal analysis in finding that Dr. Cavanagh’s negligence caused Ms. Ibrahimova’s damages. On the evidence before the trial judge, it was open to him to find that, had Ms. Ibrahimova been referred to an obstetrician when she saw Dr. Cavanagh on May 4, 2019, she would have been advised that she was at risk of potentially life-threatening injury if she continued her pregnancy, she would have elected to terminate it, and she would have avoided her injuries.
Facts
[4] All events I will refer to occurred in 2019 unless otherwise stated.
Ms. Ibrahimova’s first consultation with Dr. Cavanagh on May 3, 2019
[5] On Friday, May 3, Ms. Ibrahimova went to the emergency department of the Kincardine site of South Bruce Grey Health Centre. She was 28 years old and in the second trimester of her first pregnancy. She and her husband, Oleksii Gobenko, had married a short time earlier.
[6] Ms. Ibrahimova reported vaginal bleeding, lower abdominal cramps, and a pinkish discharge. At 17 weeks, the foetus was not yet viable.
[7] After arriving at the Kincardine Hospital, Ms. Ibrahimova had an ultrasound, urinalysis and blood tests. She was then seen by Dr. Cavanagh, a family physician who occasionally worked in the emergency department. Dr. Cavanagh testified that she reviewed the ultrasound and bloodwork results, conducted an abdominal and speculum exam of Ms. Ibrahimova, and consulted with an obstetrician over the telephone. She diagnosed Ms. Ibrahimova with a threatened miscarriage and advised her to follow up with her obstetrical care provider. She told her to return if she had increased bleeding or pain or was otherwise concerned.
Ms. Ibrahimova’s second consultation with Dr. Cavanagh on Saturday, May 4, 2019
[8] Roughly 12 hours later, Ms. Ibrahimova returned to the Kincardine Hospital emergency department. She reported to the nursing staff that she “woke up and had additional bleeding with large amount of clear fluid (enough to fill a pad)”.
[9] Ms. Ibrahimova was seen by Dr. Cavanagh within an hour of her arrival. Dr. Cavanagh testified that Ms. Ibrahimova’s vital signs were normal. She recorded that Ms. Ibrahimova had a “[g]ush of fluid” at approximately 6:00 a.m. that morning, with a small amount of blood, and that Ms. Ibrahimova showed her a pad with “straw coloured fluid”. Dr. Cavanagh thought that this was likely amniotic fluid. She advised Ms. Ibrahimova that she could be having a miscarriage.
[10] In Dr. Cavanagh’s opinion, the change in Ms. Ibrahimova’s presentation “was an evolution of her diagnosis that a threatened abortion was more likely and that it was likely to progress to a miscarriage.” Ms. Ibrahimova did not report any headaches, fever or chills, changes in how she was generally feeling, abdominal pain, or respiratory symptoms. In these circumstances, Dr. Cavanagh testified that she saw no need to obtain a white blood cell count, order an ultrasound, consult an obstetrician or refer Ms. Ibrahimova to an obstetrician on an urgent basis.
[11] Dr. Cavanagh discharged Ms. Ibrahimova with a final diagnosis of “threatened abortion”. She advised her to “watch and wait”; to follow-up with her obstetrical care provider in the coming week; and to return if she had cramping, increased bleeding, or was otherwise concerned. Ms. Ibrahimova was again sent home.
Ms. Ibrahimova’s consulation with Dr. Kalaichandran on Sunday, May 5, 2019
[12] On the afternoon of May 5, Ms. Ibrahimova went to the emergency department of the Alexandra Marine & General Hospital. Nursing staff recorded that Ms. Ibrahimova was experiencing abdominal discomfort and spotting, and that she had filled one pad with blood and yellow discharge the day before. Ms. Ibrahimova also reported a low-grade fever but appeared well in triage. Her heart rate was 100 beats per minute, which meets the definition of tachycardia.
[13] Ms. Ibrahimova was seen by Dr. Sivanesan Kalaichandran, a family physician who was completing training in emergency medicine. He testified that he asked Ms. Ibrahimova about her fever but that she “didn’t endorse an actual fever to me”. He did a vaginal swab, a sterile speculum exam, and a digital examination. Ms. Ibrahimova did not have any obvious uterine tenderness, a fever, or infectious looking discharge.
[14] During his testimony, Dr. Kalaichandran acknowledged that a urinalysis revealed that there were white blood cells in Ms. Ibrahimova’s urine. While this could have been a sign of a urinary tract infection, in his view it was not definitive. Dr. Kalaichandran had originally ordered a complete blood count but then cancelled it, concluding that it was unnecessary because Ms. Ibrahimova did not seem to have an active infection.
[15] Dr. Kalaichandran diagnosed Ms. Ibrahimova with second trimester bleeding, advised her to return if she had “fever/chills/concerns”, requested an outpatient ultrasound to reassess the pregnancy, and made a semi-urgent referral to an obstetrician. Ms. Ibrahimova was again sent home.
Ms. Ibrahimova’s consultation with Dr. David Ponesse on Monday, May 6, 2019
[16] On the afternoon of May 6, Ms. Ibrahimova went to the Walkerton site of the South Bruce Grey Health Centre. She complained of increased vaginal bleeding over the past four days and abdominal cramping. Her vital signs appeared normal.
[17] Ms. Ibrahimova was seen by Dr. Ponesse at 5:25 p.m. He noted that she had vaginal bleeding from May 3 to 6, with some pain on May 3. He testified that he did a fundal assessment and a point of care ultrasound. There was no indication of pain or tenderness from these assessments. He diagnosed her with a second trimester bleed and discharged her with instructions to return the following morning for an ultrasound and further assessment in the emergency department.
[18] Ms. Ibrahimova was discharged home at 5:59 p.m.
Events of Tuesday, May 7, 2019
[19] Ms. Ibrahimova’s husband, Oleksii Gubenko, called an ambulance at 2:08 a.m. on May 7, about eight hours after her discharge from the Walkerton emergency department. The ambulance took Ms. Ibrahimova to the Kincardine Hospital. The paramedic incident history recorded that “[o]ver the past day [Ms. Ibrahimova] has developed a high fever along with headache, dizziness and lethargy.” She was in septic shock.
[20] Ms. Ibrahimova arrived at the Kincardine hospital at 2:34 a.m. Efforts were made to stabilize her and an obstetrician was consulted. Ms. Ibrahimova was then airlifted to the London Hospital for a discharge and evacuation (“D&E”) procedure, arriving at 7:35 a.m. A D&E was performed at 9:30 a.m. at her bedside. Dilation was not required for the procedure as the foetus was already halfway through the vagina.
[21] Ms. Ibrahimova sustained catastrophic injuries as a result of the sepsis. She had a partial amputation of her right foot, the amputation of her left leg below the knee, kidney failure, and a stroke. Her ability to use her right arm is compromised and she has seizures. Ms. Ibrahimova was hospitalized from May 7, 2019 to March 9, 2020. She was on home dialysis for over 17 months until she had a kidney transplant in July 2021. The trial judge found that “Ms. Ibrahimova has very significant limitations … and that her prognosis is dire.”
The expert evidence called at trial
[22] The trial of the action took 28 days. The respondents called three experts on the issue of liability:[1]
(1) Dr. Douglas Munkley, an expert in emergency medicine, who testified on the standard of care of the physicians who saw Ms. Ibrahimova on May 3, 4, 5 and 6;
(2) Dr. David Talan, an expert in emergency medicine and infectious diseases, who testified both on the standard of care of emergency physicians and causation; and
(3) Dr. Robert Di Cecco, an obstetrician/gynaecologist working at the London Hospital, who testified in particular on the “interaction, referral, and consultation process between emergency physicians and obstetricians, and when an obstetrician should have taken over the care of Ms. Ibrahimova”.
[23] The defence called two experts on the issue of liability:
(1) Dr. Stephen McMurray, an expert in emergency medicine who testified about whether the defendants met the applicable standard of care; and
(2) Dr. Zain Chagla, an infectious diseases expert who gave evidence on causation.
[24] The defence did not call any expert evidence from an obstetrician.
The trial judge’s decision
[25] The trial judge concluded that Dr. Cavanagh breached the standard of care of an emergency room physician on May 4 and that this breach caused Ms. Ibrahimova’s damages. He found that Drs. Kalaichandran and Ponesse were negligent in their care of Ms. Ibrahimova on May 5 and 6, but dismissed the action against them on the basis that she would have developed a severe infection and sepsis absent their negligence.
[26] The trial judge preferred Dr. Munkley’s opinion over that of Dr. McMurray with respect to the urgency of Ms. Ibrahimova’s condition on May 4. Dr. Munkley testified that the gush of straw-coloured fluid on May 4 indicated that Ms. Ibrahimova’s membranes had ruptured. Given that she had pPPROM, the decision making around care for a mother and foetus was extremely complex and the standard of care required Dr. Cavanagh to consult with an obstetrician immediately. Drs. Kalaichandran and Ponesse should have done likewise when they saw Ms. Ibrahimova over the next two days. The trial judge rejected Dr. McMurray’s evidence that the expected standard of care was to recommend a community follow-up with the patient’s obstetrics provider.
[27] With respect to causation, the trial judge accepted Dr. Di Cecco’s evidence that ruptured membranes at 17 weeks was no longer a threatened abortion. An obstetrician would have advised Ms. Ibrahimova that it was unlikely that the pregnancy would proceed to viability and that there would be a risk of neonatal complications and threat to the pregnant woman’s life. Ms. Ibrahimova would have been given the option to terminate the pregnancy.
[28] The trial judge found that, had Dr. Cavanagh consulted an obstetrician before Ms. Ibrahimova left the Kincardine Hospital on May 4, Ms. Ibrahimova would have been either referred to the London Hospital directly or immediately after consulting an obstetrician in Owen Sound. In either case, she would have arrived at the London Hospital on the afternoon of May 4. She would have been advised by the obstetrical team there that her membranes had ruptured; that she had lost amniotic fluid; that she was highly likely to lose the baby; that if the baby did survive, it would likely have severe disabilities; and that she was at risk for an infection that could become severe or even septic. She would have been given the option of terminating the pregnancy or being watched carefully for signs of infection. The trial judge found that Ms. Ibrahimova would have decided to terminate the pregnancy on May 4.
[29] The trial judge accepted Dr. Talan’s evidence that Ms. Ibrahimova’s infection developed gradually, and that clinical signs of infection were evident and progressing from May 5 until Ms. Ibrahimova was in septic shock on May 7. These signs and symptoms included her self-reported low-grade fever, increasing vaginal discharge, abdominal discomfort, and white blood cells in her urine and vaginal discharge. Dr. Talan expressed the view that, had blood samples been taken, Ms. Ibrahimova’s white blood cell count would have been abnormal.
[30] The trial judge rejected the thesis advanced by the defence expert, Dr. Chagla, that this was a rare case where Ms. Ibrahimova’s infection developed and progressed to sepsis over the approximately eight hours between her discharge from the Walkerton Hospital on May 6 and her husband’s call for an ambulance on May 7. The trial judge noted that Dr. Chagla conceded “that Ms. Ibrahimova reported symptoms and had signs of possible infection prior” to her May 6 attendance at the Walkerton Hospital.
[31] The trial judge also preferred Dr. Talan’s evidence over that of Dr. Chagla on how late a D&E procedure could have been performed to avoid septic shock. Dr. Talan testified that Ms. Ibrahimova would have had to have the D&E procedure by 2:00 a.m. on May 6.
[32] Finally, the trial judge found that, but for Dr. Cavanagh’s negligence on May 4, the London Hospital would have scheduled a D&E procedure in time to avert the sepsis that Ms. Ibrahimova later developed. Had she arrived at the London Hospital on May 4 with a pPPROM diagnosis, she would have started on antibiotics that day, she would have been advised of the risks of proceeding with the pregnancy, she would have elected immediate termination, and a surgical evacuation of her uterus would have been arranged on May 5. As a result, she would not have progressed to sepsis and septic shock and would have avoided the injuries she sustained.
The grounds of appeal
[33] Dr. Cavanagh does not challenge the trial judge’s finding that she was negligent in failing to refer Ms. Ibrahimova to an obstetrician on an urgent basis on May 4. She instead argues that the trial judge erred in concluding that her negligence caused Ms. Ibrahimova’s damages. Although Dr. Cavanagh cites nine distinct errors, they can be distilled into four grounds of appeal, each of which I will address in turn.
First ground of appeal: The trial judge made findings of fact relevant to causation absent evidence that could ground them
[34] Dr. Cavanagh contends that the trial judge should not have made findings about what would have occurred at the London Hospital absent direct evidence about the prevailing obstetrical standards and resources at the Hospital in May 2019, and given his reservations about the reliability of Ms. Ibrahimova and Mr. Gubenko’s evidence. Specifically, she says that the trial judge erred in finding that:
Ms. Ibrahimova would have elected immediate termination of the pregnancy, had she been advised of the risks associated with pPPROM;
The obstetricians at the London Hospital would have identified a potential infection by relying upon the signs and symptoms of infection identified by Dr. Talan;
The London Hospital would have prioritized scheduling a procedure to terminate the pregnancy on May 5; and
The D&E could be performed at the London Hospital within two hours of Ms. Ibrahimova’s decision to proceed with it.
[35] In my view, it was open to the trial judge to make these determinations on the evidence before him.
[36] The trial judge used the analytical framework for analyzing causation in a delayed diagnosis case endorsed by this court in Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387, leave to appeal refused, [2017] S.C.C.A. No. 491, and reaffirmed in Hasan v. Trillium Health Centre (Mississauga), 2024 ONCA 586, 499 D.L.R. (4th) 178, leave to appeal refused, [2024] S.C.C.A. No. 402. He first determined what had happened from May 3 to May 7, then determined what would have happened had Dr. Cavanagh met the standard of care. He relied on the characterization of the respondents’ burden of proof with respect to causation in Goodman v. Viljoen, 2012 ONCA 896, 299 O.A.C. 257, at para. 76, leave to appeal refused, [2013] S.C.C.A. No. 63:
The robust and pragmatic approach takes into account the nature of the factual issues underlying the causation question and the kind of evidence that the parties are reasonably capable of producing on those issues. The approach acknowledges that the causation inquiry is essentially a practical one based on the entirety of the evidence and made with a view to determining whether the [respondent] has established causation on the balance of probabilities and not to a scientific certainty.
[37] Citing the end of this passage in Goodman, the trial judge acknowledged the court’s admonition against speculating or resorting to common sense to determine issues that require expert knowledge: “[t]o resort to speculation or the misuse of common sense is to misapply the robust and pragmatic approach”: Goodman, at para. 76.
[38] The trial judge did not fall into this error in making the determinations impugned by Dr. Cavanagh. He made the findings based on his assessment and weighing of the expert and ordinary evidence. Such findings, which involve the assessment of a large body of complex evidence, are entitled to appellate deference absent an error of law or principle or a palpable and overriding error of fact: Gumbley v. Vasiliou, 2025 ONCA 851, at para. 78; Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, 77 C.C.L.T. (4th) 206, at paras. 27, 66-67; Benhaim v. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352, at para. 37.
It was open to the trial judge to find that Ms. Ibrahimova would have decided to terminate the pregnancy immediately once counselled about the risks of pPPROM
[39] The trial judge’s determination that Ms. Ibrahimova would have elected to terminate the pregnancy after being advised of the risks of pPPROM was based on his assessment of the respondents’ evidence and the expert evidence about the risks to Ms. Ibrahimova and the foetus as of May 4.
[40] The trial judge found that Ms. Ibrahimova was “an extremely high-risk patient” on May 4. He accepted Dr. Di Cecco’s evidence that a patient with pPPROM would be advised that it was unlikely that the pregnancy could proceed to 23 or 24 weeks; if the foetus survived, the baby would likely have significant health complications; and, if the pregnancy were not terminated, the patient could develop life-threatening sepsis. Dr. Chagla testified that a significant percentage of individuals with premature rupture develop intrauterine infection and that, in some relatively rare cases, infection can develop over a few hours, resulting in sepsis and consequently serious injury or death to the mother.
[41] Dr. Di Cecco nonetheless acknowledged that many patients with pPPROM elect to continue with their pregnancy.
[42] To determine what Ms. Ibrahimova would have done if advised of these risks, the trial judge considered her evidence and that of Mr. Gubenko. He accepted their evidence that they would have elected to terminate the pregnancy had Ms. Ibrahimova been advised of the risks associated with pPPROM on May 4. It was open to the trial judge to accept their evidence on this point even though he acknowledged gaps in Ms. Ibrahimova’s recollection and inaccuracies in Mr. Gubenko’s evidence on other points.
[43] Mr. Gubenko testified that “they had discussed and agreed to terminate if faced with a serious health risk”. The trial judge accepted that this was Mr. Gubenko’s opinion, and that it would have “strongly influenced Ms. Ibrahimova”. The trial judge noted that the respondents’ evidence was consistent with what they had actually done during the pregnancy: Ms. Ibrahimova had sought out and followed medical advice throughout her pregnancy, and they had tested the foetus for the risk of Down Syndrome.
[44] The trial judge concluded that, although many pregnant women would not opt for immediate termination if diagnosed with pPPROM at 17 weeks, “all that was relevant to Ms. Ibrahimova was a low likelihood of viability and significant risk of birth defects and a threat to her own health”. This led him to find that, had she been advised of the risk to the foetus and to herself on May 4, she would have decided to terminate the pregnancy immediately, and that this decision would “not have been a close call”.
[45] The trial judge also considered what a reasonable person would have done in their circumstances, as directed in Arndt v. Smith, 1997 CanLII 360 (SCC), [1997] 2 S.C.R. 539. He found that, given “Ms. Ibrahimova’s age, educational goals, uncertain status in Canada, limited financial resources, the low likelihood of the pregnancy progressing to viability, the significant risk of birth defects in that event, and the potentially grave risk to Ms. Ibrahimova’s health”, that a reasonable person in her circumstances would have elected to terminate the pregnancy on May 4.
[46] I do not accept Dr. Cavanagh’s submission that the trial judge could not determine what Ms. Ibrahimova would have done without evidence from a maternal-foetal medicine specialist or neonatologist about what specific information would have been conveyed to the respondents at the London Hospital. The trial judge’s finding that Ms. Ibrahimova would have acted on the risks described by Dr. Di Cecco was not speculative, given that Dr. Di Cecco is an obstetrician who works at the Hospital.
It was open to the trial judge to find that the London Hospital obstetrical team would have noted and acted upon the signs and symptoms of infection identified by Dr. Talan
[47] I likewise reject Dr. Cavanagh’s submission that the trial judge erred in assuming that the obstetrics team at the London Hospital would have noted and acted upon Ms. Ibrahimova’s signs and symptoms of possible infection on May 5 or 6. She contends that this finding was not open to the trial judge because only the respondents’ U.S.-based infectious disease expert, Dr. Talan, testified about these signs and symptoms. This argument mischaracterizes the evidence. Dr. Cavanagh’s proposed approach to causation is moreover inconsistent with a robust and pragmatic approach affirmed in Goodman.
[48] Dr. Talan was not the only expert who recognized that Ms. Ibrahimova had signs and symptoms of potential infection prior to May 7. Dr. Chagla expressed the view that Ms. Ibrahimova did not meet the criteria for a diagnosis of intrauterine infection prior to that date but conceded in cross-examination that she had possible signs and symptoms of infection identified by Dr. Talan as early as May 3. He acknowledged that infection would therefore have been on the differential diagnosis.
[49] The trial judge furthermore did not err in finding it more likely than not that such signs and symptoms would have been identified and taken into account by the obstetrical team at the London Hospital. As Dr. Di Cecco testified, infection is the primary risk to a patient with pPPROM. That is why it is a medical emergency. In my view, it is absurd to argue that an obstetrical team at the London Hospital would have ignored signs that an infection had in fact taken hold, or that they would need to consult an infectious disease specialist to confirm classic potential signs of infection such as abdominal pain, vaginal discharge, white blood cells in urine and vaginal discharge, fever, and tachycardia.
[50] As the trial judge observed:
In terms of causation, … the relevance is not whether [Ms. Ibrahimova] met a clinical diagnosis, but whether there were any signs or symptoms of possible infection present. In other words, if an obstetrician at [the London Hospital] observed any signs of possible infection, that would heighten the urgency of the situation. It would not make sense that the obstetrician would effectively ignore the signs and symptoms until such time that diagnostic criteria for intrauterine infection were met.
[51] This reasoning does not exhibit inappropriate reliance on common sense or speculation in the absence of evidence, but a practical analysis based on the entirety of the evidence.
It was open to the trial judge to find that the London Hospital would have prioritized the procedure to terminate the pregnancy on May 5
[52] Dr. Cavanagh argues that the trial judge erred in finding that a D&E would have been performed by May 5 given the absence of evidence about the resources at the London Hospital. In her submission, his finding was based on speculation and the misuse of common sense. I again disagree.
[53] The trial judge found that Ms. Ibrahimova’s situation on May 4 would be regarded as “emergent (meaning same or next day) surgical evacuation of the uterus”. He noted that, in cross-examination, Dr. Chagla agreed that “you don’t have to wait until the patient is septic”; “signs of infection would be a signal to have urgent surgical evacuation”.
[54] In determining how the obstetrics team at the London Hospital would have approached Ms. Ibrahimova’s situation, however, the trial judge ultimately put the most weight on Dr. Di Cecco’s opinion. He stated that:
This urgency would be viewed through the lens of an obstetrician and not a specialist in infectious diseases. Put differently, with ruptured membranes, the potential for lethal infection and a decision by the patient to terminate, it would not make sense that an obstetrician would consult an infectious diseases expert to opine on the constellation of signs and symptoms. The D&E had to occur, and patient safety would have dictated that it be performed without delay.
[55] On the basis of Dr. Ci Cecco’s evidence, the trial judge found that Ms. Ibrahimova would have been given the option to terminate her pregnancy on May 4 based on the diagnosis of pPPROM alone. He concluded that: “In the days following May 4, Ms. Ibrahimova was, in a sense, a ticking time bomb. She was vulnerable to an infection, which, as Dr. Chagla testified, could progress to septic shock in a few hours. It only makes sense that this condition would be treated as emergent.”
[56] It was on this basis on which the trial judge found that Ms. Ibrahimova needed “same day or next day intervention”. Signs and symptoms of infection that emerged on May 5 merely heightened the gravity of the situation.
[57] Dr. Cavanagh argues that the trial judge nonetheless should not have found that the London Hospital would prioritize Ms. Ibrahimova’s D&E surgery, because there was no evidence about the availability of specialists at the London Hospital who performed second-trimester abortions in May 2019, how operating room time was prioritized, or how quickly a D&E would have been arranged in different scenarios. She advanced this same argument at trial. The trial judge rejected it, in part relying on Dr. Di Cecco’s evidence and in part on an inference about the priority that a facility such as London Hospital would give to a patient at high risk:
The evidence is that a large tertiary hospital, such as [the London Hospital], has specialists in the hospital or immediately available 24/7. I think it is also a matter of common sense and experience that large tertiary hospitals perform emergent procedures which must take priority, as well as non-emergent procedures which can be deferred without risk to patient safety.
[58] The trial judge found that the timing of Ms. Ibrahimova’s D&E procedure on May 7, which occurred within two hours of her arrival at the London Hospital, was consistent with this evidence and inference. He found that he could assume that the London Hospital would have acted as promptly on May 4 or 5, given the principle in Ediger v. Johnston, 2013 SCC 18, [2013] 2 S.C.R. 98 that the standard of care must be responsive to the risks in question and the potential harm arising from it”.
[59] I see no basis on which to interfere with the trial judge’s finding that the London Hospital would have prioritized Ms. Ibrahimova’s surgery on May 4 or 5. His observation about the practices in large, tertiary hospitals was not speculative, given Dr. Di Cecco’s evidence and what occurred on May 7 when Ms. Ibrahimova was air-lifted to the London Hospital.
[60] Dr. Cavanagh argues that the trial judge misconstrued Dr. Di Cecco’s evidence on this issue. She says that Dr. Di Cecco did not express an opinion about when the termination of the pregnancy would or should happen, but rather how quickly Ms. Ibrahimova could have received a consultation at the London Hospital had she been referred there on May 4.
[61] This argument does not fairly capture Dr. Di Cecco’s evidence. He testified that, had Ms. Ibrahimova been referred to the London Hospital on May 4, she would have been admitted that day, with a standard workup including bloodwork, monitoring of the foetal heart, a sterile speculum examination and an ultrasound. A course of action would have been determined based on her presentation, and appropriate arrangements would be made. He expressed the view that she would have no real options other than a D&E if she was starting to become infected.
[62] Dr. Cavanagh also takes the position that the trial judge’s finding is inconsistent with Ediger. I see no such error.
[63] The trial judge first cited Ediger in explaining why he rejected the evidence of the defence expert on negligence, Dr. McMurray. Given the acute risks to the mother and foetus associated with pPPROM, he preferred Dr. Munkley’s evidence about how a reasonable emergency room physician should respond to this diagnosis. The trial judge referred to Ediger again in his causation analysis. He found that given the risks presented by pPPROM, the London Hospital “would have been responsive to the risk in terms of prioritizing the D&E for Ms. Ibrahimova.”
[64] Dr. Cavanagh argues that the trial judge’s reliance on Ediger in his causation analysis overturns “decades of jurisprudence” by assuming that an obstetrical team at the London Hospital would have taken steps necessary to avoid the risk of sepsis, in the absence of any direct evidence led by the respondents on this issue.
[65] I find nothing inappropriate about the trial judge’s assumption, consistent with the principle expressed in Edinger, that the obstetrics team would have provided treatment consistent with the standard of care. Based on the evidence of the only obstetrical expert who testified at trial, that standard of care dictated that Ms. Ibrahimova would have been counselled that she would court life-threatening risks if she continued with her likely non-viable pregnancy. The standard of care would also dictate that, to avert that risk, a D&E would have been arranged on an emergency basis as soon as Ms. Ibrahimova elected to terminate the pregnancy.
It was open to the trial judge to find that a D&E could have been performed within two hours of Ms. Ibrahimova’s decision to terminate the pregnancy
[66] Dr. Cavanagh argues that the trial judge erred in inferring that a procedure could have been performed as quickly on May 5 as it was performed on May 7. She makes two submissions. First, she argues that the situation on May 7 was different than the situation on May 5. By the time Ms. Ibrahimova arrived at the London Hospital on May 7, she was in septic shock, the foetus had emerged partway through the vagina, and no dilation was required. Second, the trial judge had ruled that Dr. McMurray, a defence expert, could not testify on “the standard of care of obstetricians or what obstetricians would do.” Despite this, the trial judge relied on Dr. McMurray’s evidence to find that mechanical cervical dilators can be used if an obstetrician determines that an immediate evacuation of the uterus is required.
[67] These submissions do not carry the day, in my view.
[68] The trial judge recognized that there was no direct evidence about how quickly a D&E could have been performed at the London Hospital on May 5. He concluded, however, that he could reasonably infer that a D&E would have taken place within two hours of Ms. Ibrahimova’s decision to terminate the pregnancy. He distinguished this situation, correctly in my view, from the facts in Salter v. Hirst, 2010 ONSC 3440, 97 C.P.C. (6th) 353, aff’d 2011 ONCA 609, 107 O.R. (3d) 236, leave to appeal refused, [2011] S.C.C.A. No. 503. There was no principled reason why the trial judge should not make a finding about when that treatment would have occurred, absent Dr. Cavanagh’s negligence, based on indirect evidence.
[69] The trial judge had already found that the obstetrical team would treat Ms. Ibrahimova’s pPPROM diagnosis as an emergency, heightened by signs and symptoms of possible infection, necessitating an intervention the same day or the next day; and that the London Hospital would prioritize the termination of the pregnancy in this situation, as it did on May 7.
[70] The trial judge’s limitation of Dr. McMurray’s testimony did not prevent him from relying on his evidence about how mechanical dilators could be used. Dr. McMurray was not providing an opinion about what obstetricians should or would do. He was simply telling the court about his experience with the surgical tools available for a D&E procedure. In any event, Dr. Di Cecco also testified that metal dilators can be used to forcibly dilate the cervix in situations where it is preferable to proceed immediately.
[71] I conclude that there was nothing improper about the trial judge’s evidence-based inference that a D&E could have been performed within two hours of Ms. Ibrahimova’s decision to terminate the pregnancy. Even if he had erred in relying on this inference, however, this would not constitute a palpable and overriding error given his other findings on causation.
[72] The trial judge found that, had Dr. Cavanagh met the standard of care on May 4, Ms. Ibrahimova would have arrived at the London Hospital on the afternoon of that same day. He accepted Dr. Talan’s opinion that, to avert the risk of sepsis, she would have had to undergo a D&E by 2:00 a.m. on May 6, that is, roughly 36 hours after she would have been admitted. As a result, a D&E would not have had to be arranged within two hours of Ms. Ibrahimova’s arrival at the London Hospital. Based on Dr. Di Cecco’s evidence that the obstetrics team would intervene on the same day that a patient like Ms. Ibrahimova was admitted or the next day, a D&E would have been performed within the critical window of time.
[73] I conclude that the first ground of appeal fails.
Second ground of appeal: The trial judge invented a new standard of obstetrical care
[74] Dr. Cavanagh contends that, given the expert evidence before him, the trial judge was required to find when Ms. Ibrahimova first developed an intrauterine infection (also referred to as chorioamnionitis) and how quickly the infection evolved into septic shock. She says that the trial judge inappropriately sidestepped the issue by finding that the obstetricians treating Ms. Ibrahimova would have intervened with antibiotics and a D&E because infection was on a differential diagnosis.
[75] I see no error in the trial judge’s approach. Dr. Di Cecco testified that, if there were any evidence of infection, antibiotics would be administered and there would be no option but to terminate the pregnancy, removing the possible source of infection. There was no evidence from another obstetrician to contradict this evidence, which the trial judge accepted.
[76] This ground of appeal also fails.
Third ground of appeal: The trial judge misapplied the law of adverse inference
[77] Dr. Cavanagh contends that the trial judge mischaracterized the adverse inference that the defence asked him to make. The defence sought an inference based on the respondents’ failure to ask Dr. Di Cecco whether he believed Ms. Ibrahimova had chorioamnionitis on May 5, and to ask him how quickly a D&E would have been performed at the London Hospital had Ms. Ibrahimova been admitted that day. The trial judge instead considered whether an adverse inference could be drawn solely from the respondents’ failure to call other witnesses from the London Hospital.
[78] I do not agree that the trial judge misunderstood the defence position or that he failed to address it.
[79] The trial judge did not need to explain why he did not draw an adverse inference based on the respondents’ failure to ask Dr. Di Cecco for his opinion about whether Ms. Ibrahimova had chorioamnionitis on May 5. First, Dr. Di Cecco was an obstetrical expert, not an expert on infectious diseases. Second, there was no reason to put this question to Dr. Di Cecco in his examination in chief; his opinion on this issue would have been relevant only to the defence’s theory on causation. Third, and most important, the trial judge concluded that the question of when precisely Ms. Ibrahimova met the criteria for a diagnosis of intrauterine infection was a red herring. The pre-labour rupture of membranes at 17 weeks in itself necessitated consideration of whether to continue with the pregnancy, and the risks of doing so were heightened by signs or symptoms of infection.
[80] The trial judge explicitly addressed the adverse inference that the defence asked him to make based on the failure of the respondents’ counsel to elicit evidence from Dr. Di Cecco on how quickly a D&E would have been performed on May 5: “The defendants submit that I should draw the adverse inference that the D&E would not have taken place in time to save Ms. Ibrahimova from injury due to the fact that Dr. Di Cecco was not questioned on this point.”
[81] After citing the principles governing adverse inferences set out in R. v. Ellis, 2013 ONCA 9, 113 O.R. (3d) 641, at paras. 45-48, the trial judge noted that there was evidence that a D&E would have been performed on May 5, even though Dr. Di Cecco had not been asked this question directly. As a result, he declined to draw an adverse inference.
[82] I would defer to the trial judge’s decision on this issue absent any error of law or principle or any palpable and overriding error of fact. As a result, this ground of appeal cannot succeed.
Fourth ground of appeal: The trial judge’s approach to causation reversed the onus of proof
[83] Finally, Dr. Cavanagh contends that the trial judge reversed the onus of proof by requiring the defence to disprove causation. I do not agree that he made such an error.
[84] Dr. Cavanagh’s submission hinges on the trial judge’s consideration of whether an adverse inference should be drawn from the respondents’ failure to call evidence from the London Hospital, aside from Dr. Di Cecco’s expert evidence. While such an inference might not have been formally requested, the trial judge’s consideration responded to the defence position that the respondents had not proved causation because they had not called direct evidence from the London Hospital about issues such as which surgeries are prioritized and the availability of D&E procedures.
[85] The trial judge found there was evidence on which he could make determinations relevant to causation absent further evidence. He expressed the view that a witness from the London Hospital “would not be favourably disposed to the [respondents] or under their control.” This constituted a plausible explanation for why the respondents had not called such witnesses and was a sufficient basis for the trial judge to decline to draw an inference based on the respondents’ failure to call such witnesses.
[86] The trial judge went on to observe that defence counsel “certainly have ready access to [the London Hospital] physicians and information as to its practices and procedures”. He stated: “If there existed a knockout blow to the [respondents’] case in the form of direct evidence from [the London Hospital] that the D&E could not have been performed on May 5, I expect they would have delivered the blow and not sat back to rely on argument as to what inferences should be drawn.”
[87] This passage does not imply that the trial judge reversed the onus of proof or that he made an adverse inference with an insufficient evidentiary foundation. He was simply observing that the defence failed to adduce any evidence to counter the respondents’ evidence about what would have occurred at the London Hospital had Ms. Ibrahimova been transferred there on May 4.
[88] I conclude that this ground of appeal must also fail.
Disposition
[89] As recently affirmed in Brown v. Meaney, 2026 ONCA 445, at para. 37, the respondents’ burden was merely to show that, on a common-sense basis, Ms. Ibrahimova’s injuries would not have occurred but for Dr. Cavanagh’s negligence. In this case, as in Brown, the trial judge determined that this burden had been met. This determination was untainted by any reversible error.
[90] I would dismiss the appeal, with all-inclusive costs to the respondents in the amount of $60,000, the amount that the parties agreed should be awarded to the successful party on appeal.
Released: August 7, 2026 “J.M.C.”
“S. Gomery J.A.”
“I agree. J. Copeland J.A.”
“I agree. P.J. Monahan J.A.”
1The parties called additional experts on Ms. Ibrahimova’s current prognosis and her current and future care needs. Since the damages award is not at issue in this appeal, I will not review this evidence.