REASONS FOR DECISION

On Appeal from the judgment of Justice P.J. Monahan of the Superior Court of Justice, dated June 20, 2018 with reasons reported Kram v. Oestreicher, 2018 ONSC 3813.

CHARNEY J.:

Introduction

[1] The Appellant, Nancy Kram, appeals from the decision of the trial judge dismissing her medical malpractice action against Dr. James Oestreicher, in which she alleged negligence and lack of informed consent in respect of certain plastic surgeries he performed in 2009 and 2010. The allegations related to an upper eyelid blepharoplasty and lower eyelid tightening surgery performed on June 15, 2009 and three subsequent surgeries, performed over the next 14 months, which involved various attempts to reverse or modify the June 15, 2009 surgery.

Court’s Jurisdiction

[2] While Ms. Kram claimed general damages of $650,000, the trial judge held that if he had found Dr. Oestreicher liable, he would have assessed damages at $24,352.49. This appeal is therefore within the monetary jurisdiction of the Divisional Court pursuant to ss. 19(1)(a) and 19(1.2)(d) of the Courts of Justice Act, R.S.O. 1990, c. C.43.

Background Facts

[3] At the date of trial, Ms. Kram was a 56-year-old registered nurse living in Calgary, Alberta.

[4] Dr. Oestreicher is an ophthalmologist with a subspecialty in oculoplastic cosmetic and reconstructive surgery, licensed to practice in Ontario. He operates a private practice focusing on surgeries in and around the orbital region.

[5] On February 20, 2009, Ms. Kram contacted Dr. Oestreicher by telephone and then by email to discuss cosmetic surgical options for her eyes. Ms. Kram had previously undergone a number of cosmetic surgeries, including a facelift and lower eyelid blepharoplasty in May 2008 (the “2008 surgery”) by a plastic surgeon in San Francisco, California. Through numerous email exchanges with Dr. Oestreicher, Ms. Kram explained that she had a number of concerns with the appearance of her eyes following the 2008 surgery, including that her lower lids sagged, that the corners of her eyes tipped down, and that she no longer had a sharp corner to her outer eye. She also was concerned over the fact that her upper eyelid covered more of the top part of her iris than she would have liked, giving her a “sleepy look.”

[6] As Dr. Oestreicher was not able to examine Ms. Kram in person, he asked her to photograph herself pulling the lateral lower eyelid up. Based on Ms. Kram’s description of her desires, and his review of numerous photographs she subsequently sent, Dr. Oestreicher advised Ms. Kram that she would likely benefit from lateral tightening of the lower eye region. Ms. Kram suggested that she would benefit from upper eyelid surgery as well, so that more of her iris would show.

[7] On April 16, 2009 Ms. Kram sent Dr. Oestreicher a deposit of $4,400. On April 20, 2009, Ms. Kram wrote Dr. Oestreicher again indicating that she wanted to book the surgery as soon as possible. A week later, Dr. Oestreicher acknowledged receiving the deposit and inquired as to what specific surgery Ms. Kram wished to have performed. Dr. Oestreicher and Ms. Kram agreed that they would meet before the surgery to finalize surgical options.

[8] On May 4, 2009, Dr. Oestreicher sent Ms. Kram a letter outlining the surgical options discussed, namely, upper blepharoplasty and lower lid tightening, along with pricing. The cost for procedures on both her upper and lower eyelids was quoted as $5,775. On May 26, 2009, Ms. Kram sent Dr. Oestreicher final payment for the surgery and made arrangements to travel to Toronto on June 15, 2009, where she would meet with Dr. Oestreicher for a physical examination and then have the surgery performed.

a. June 15, 2009 Surgery

[9] On June 15, 2009, Ms. Kram attended Dr. Oestreicher’s office for a physical examination and surgery. Dr. Oestreicher’s notes made contemporaneously during the assessment indicated that the 2008 surgery had been performed using an external approach, which Dr. Oestreicher regarded as undesirable in younger patients since it increases the risk of scarring and can pull the lower eyelid down. In his view, the aesthetic issue he was being asked to address by Ms. Kram, namely, that her lower eyelids were “pulled down,” was likely caused by vertical scarring resulting from the 2008 surgery.

[10] Dr. Oestreicher conducted a physical assessment. His notes included a reference to “slight sag”, scleral show and “stiff”. Through this physical examination, Dr. Oestreicher confirmed that there was scarring and lower lid laxity.

[11] Dr. Oestreicher’s plan was to use a tarsal strip surgical technique to perform the lower lid tightening, but he did not use the words “tarsal strip” during his discussion with Ms. Kram. He determined that the tarsal strip technique was appropriate because, through the tests he performed, he could see Ms. Kram’s eye contour and scleral show could be addressed with lateral tightening. He did not think a canthopexy or “mini tarsal strip” approach was a medically reasonable alternative for Ms. Kram because the degree of scarring and laxity he observed on physical assessment would likely make those techniques futile. In his view, Ms. Kram fell into a small minority of cosmetic surgery patients who, because of scarring from prior blepharoplasty, required a tarsal strip technique in order to address their concerns.

[12] Dr. Oestreicher’s notes indicated that he reviewed the risks of the procedure, including dryness, swelling, risks of bleeding, and infection, with Ms. Kram. His notes also indicate that he advised the results “may not be perfect and could be worse” and may require further surgery. Ms. Kram signed a three-page consent form which described the surgery to be performed as “Bilateral Lower Lid Repeat Ectropion Repair and Blepharoplasty Revision and Upper Lid Blepharoplasty”.

[13] At trial, Ms. Kram testified that Dr. Oestreicher did not explain the nature of the surgery he was proposing to perform. Nor did he explain the risks, or that the result could be that “she would look worse”. Ms. Kram testified that in a telephone discussion with Dr. Oestreicher prior to meeting him on June 15, 2009, she had requested that he perform a canthopexy, and that she assumed this was the lateral tightening procedure that he was intending to perform. She testified that she believed that Dr. Oestreicher was going to elevate the corners of her eyes.

[14] Ms. Kram testified that the consent form she signed prior to surgery had only “Upper Lid Blepharoplasty” listed on the third line as the procedure to be performed, with two blank lines above it. She also testified that the third page of the consent form she signed on this date was a “Governing Law and Jurisdiction Agreement.”

[15] Dr. Oestreicher’s notes indicate that the surgery went according to plan and there were no complications. However, Ms. Kram testified that as soon as she returned to her hotel she knew right away that the “wrong surgery” had been performed on her lower eyelids. She believed that the lower lid tightening had been performed using a “full thickness incision”. She was also concerned that the corners of her eyes had not been elevated as she had requested.

[16] The next day Ms. Kram attended at Dr. Oestreicher’s office for a post-operative follow-up. Dr. Oestreicher’s notes indicated that Ms. Kram had a “nice result”. Ms. Kram testified that she questioned Dr. Oestreicher during this meeting and told him that the corners of her eyes were not elevated as she had requested. However, Dr. Oestreicher’s notes do not reflect any complaints or concerns expressed by Ms. Kram.

[17] On June 21, 2009, Ms. Kram emailed Dr. Oestreicher, requesting clarification about whether he had “cut out a portion of her lower eyelid” in completing the lower lid tightening, as in a surgical photograph she attached. Dr. Oestreicher responded by email the next day explaining that he had employed a “lateral tarsal strip” technique.

b. August 4, 2009 Surgery

[18] In early July 2009, Ms. Kram emailed Dr. Oestreicher complaining of a “sharp poking sensation” in her right eye. It was determined that this discomfort was caused by some sutures that had been inserted during the June 15, 2009 surgery. Ms. Kram returned to Toronto on July 24, 2009 to have a suture removed by Dr. Oestreicher. Dr. Oestreicher also made arrangements for Ms. Kram to have some further suture material removed by a colleague in Calgary on July 29, 2009. The suture removal was successful and did not pose any further difficulties.

[19] During the July 24, 2009 meeting, Ms. Kram indicated that she was not happy with the results of the June 15, 2009 surgery and wanted it reversed. Ms. Kram’s dissatisfaction was recorded in Dr. Oestreicher’s contemporaneous notes documenting that Ms. Kram felt that her eye felt “tethered” and that she may want the tarsal strip to be released.

[20] On July 31, 2009 Dr. Oestreicher had a telephone conversation with Ms. Kram during which they discussed the risks, alternatives, and benefits of a procedure to partially reverse the effects of the tarsal strip technique that had been performed on June 15, 2009. Dr. Oestreicher testified that during this discussion, he indicated that attempting to reverse the earlier surgery so soon after it had been performed was “not his first choice”, and that the tightness Ms. Kram was experiencing was common and would relax if they waited. Dr. Oestreicher also testified that he explained that the tarsal strip could not be fully released all at once and would require gradual loosening.

[21] Ms. Kram acknowledged that she was told by Dr. Oestreicher on July 24, 2009 that he was reluctant to perform more surgery at that time and wanted her to wait an additional 6 months before attempting to reverse the effects of the tarsal strip. However, she was anxious to have the reversal of the tarsal strip performed as soon as possible and it was agreed that this would be done on August 4, 2009.

[22] On August 4, 2009, Dr. Oestreicher performed a partial reversal of the earlier tarsal strip procedure, identified as a “bilateral ectropion repair and lateral canthopexy.” Ms. Kram signed an informed consent form prior to surgery. Dr. Oestreicher was pleased with the outcome of the surgery.

[23] On August 5, 2009, Dr. Oestreicher examined Ms. Kram during a post-operative visit. Dr. Oestreicher found that her eyelids were in a “good position”. In response to photographs sent to him by Ms. Kram in the weeks that followed, Dr. Oestreicher noted some redness in the lid but indicated that it was in a good position and meeting at a good angle with the upper lid.

c. April 19, 2010 Surgery

[24] Although Ms. Kram did not contact Dr. Oestreicher for the balance of 2009, she testified that she remained unhappy with the results of her surgery. Between December 2009 and February 2010, she attended consultations with a number of plastic surgeons in Beverly Hills, California. One of the plastic surgeons she consulted indicated that he would not perform surgery on Ms. Kram at that time. Another plastic surgeon proposed to undertake “eye reconstruction surgery” at a cost of US$15,310.

[25] Because the quote was “very expensive”, Ms. Kram decided to resume discussions with Dr. Oestreicher. They exchanged numerous emails between February and April 2010. Ms. Kram had a variety of concerns, including that her upper eyelids were not lifted up as she had requested; that her eyelids felt too tight; that there were wrinkles on her eyelids which she believed had been caused by having too much fat removed; and that she would like the corners of her eyes to be reconstructed back to the way they had been prior to the June 15, 2009 surgery.

[26] In numerous emails, Ms. Kram offered her suggestions, based on discussions she had had with other surgeons or from research she had conducted on the internet, as to what surgical techniques would be most appropriate to deal with her concerns.

[27] Dr. Oestreicher reviewed her suggestions but did not find any of them to be practical or viable. In each case, he offered an explanation as to why her suggestions would not work or would result in significant negative complications.

[28] On March 10, 2010, in response to Ms. Kram’s request to lengthen her lower eyelids, Dr. Oestreicher proposed a variant of a tenzil flap procedure. Subsequently, on March 16, 2010, Dr. Oestreicher provided a drawing and a step-by-step explanation of the procedure. On March 24, 2010, Ms. Kram indicated that she did not like the idea of the tenzil flap. She also complained about her eyelids feeling too tight. Ms. Kram offered a number of additional suggestions as to what surgery she thought should be performed, and referred Dr. Oestreicher to a website outlining her ideas.

[29] On March 26, 2010, Dr. Oestreicher emailed Ms. Kram stating that he felt “we are going around in circles.” He asked her to put down in one or two sentences what she wished to achieve by further surgery. He indicated that he would canvass his colleagues for ideas, but “if no one has a better idea than mine, I cannot do your surgery unless you and I agree that that is an acceptable strategy.”

[30] Over the next few weeks the parties continued to discuss Dr. Oestreicher’s proposed tenzil flap procedure, in addition to Ms. Kram’s own suggestions for surgery. On April 1, 2010, Ms. Kram informed Dr. Oestreicher by email that she did not want the tenzil flap procedure.

[31] Dr. Oestreicher and Ms. Kram spoke by telephone on April 12, 2010. Dr. Oestreicher testified that during that call he explained why a further surgery that had been suggested by Ms. Kram was not feasible. He again explained how and why the surgery he was recommending, a tenzil flap variant along with a left hard palate graft, would respond to Ms. Kram’s concerns.

[32] The trial judge found that the parties reached agreement during the April 12, 2010 telephone discussion as to the surgery to be performed by Dr. Oestreicher, and that this surgery would proceed on April 19, 2010.

[33] In Ms. Kram’s view, she had not agreed to the tenzil flap variant being proposed by Dr. Oestreicher. However, on April 16, 2010, Ms. Kram emailed Dr. Oestreicher stating, amongst other things, that she is “looking forward to having surgery”. None of the emails between April 12 and April 19, 2010 record the specifics of the surgery that the parties had agreed would be performed on April 19, 2010.

[34] Ms. Kram returned to Toronto and attended Dr. Oestreicher’s office for surgery on Monday, April 19, 2010. Dr. Oestreicher documented a discussion with Ms. Kram which included the risks, alternatives and benefits of the procedure to be undertaken. Dr. Oestreicher’s notes from this meeting include drawings that are the same as those he had sent to Ms. Kram on March 16, 2010, showing the tenzil flap procedure. Dr. Oestreicher also testified that he had previously discussed the possibility of performing another procedure to deal with a problem she had identified with her left upper eyelid. His preoperative notes from April 19, 2010 indicated that Ms. Kram did not want this procedure performed and, therefore, he would not proceed with it.

[35] An informed consent form entered into evidence by Dr. Oestreicher described the surgery to be performed as “left lower lid elevation, hard palate, mucosal graft, bilateral lateral canthopexy, left traction suture tarsorrhaphy.” However, in her testimony Ms. Kram could not recall having signed this particular form and disputed having signed it. She acknowledged that the signature on the form looked like hers, but she believes it to be a photocopy of her signature and not authentic.

[36] Dr. Oestreicher performed the tenzil flap variant surgery on April 19, 2010, the goal of which was to “lengthen the lids horizontally and to bring up the lower left lid.”

[37] Three days later, after returning to Calgary, Ms. Kram emailed Dr. Oestreicher stating that she did not like “this tenzil that you have given me”, and that she would “like to come back and have you reverse this procedure before it heals.” She indicated that she “was looking forward to the surgery because I wanted things to work out”, but that in light of the results she was “thinking about taking out the stitches so it does not heal bunched up and so my eyelid can go back upward.”

[38] Dr. Oestreicher replied later the same day (April 22, 2010) indicating that he believed they “have accomplished a lot with the operation.” He explained a number of benefits resulting from the surgery and indicated that “you have to be patient and let it heal to gain these benefits.” He stated that any attempt to reverse the procedure immediately would be inappropriate and carry significant risks, and that “if you tamper with it yourself I cannot be responsible for your care anymore.”

[39] The trial judge found that the parties spoke later in the day on April 22, 2010 and that Ms. Kram sent an email to Dr. Oestreicher that evening indicating that she would “wait a while” but that she remained upset with the results of the surgery.

[40] On April 29, 2010, Ms. Kram sent some photographs to Dr. Oestreicher. He responded that “for this early, it looks excellent… More open vertically and horizontally, and that left lower lid has come up nicely.” On May 7, 2010, after reviewing additional photographs, Dr. Oestreicher wrote that “I am actually encouraged by the photographs you have been sending… I think things are improving quite well and rapidly.” He further indicates that “this sort of thing is judged in a year, not a month… But you are improving a lot and quickly.”

d. August 17, 2010 Surgery

[41] Beginning in the middle of June 2010, Ms. Kram began sending a series of emails complaining of infections in her eyes and requesting Dr. Oestreicher to reverse the tenzil flap procedure he had performed on April 19, 2010. Dr. Oestreicher remained reluctant to reverse the tenzil flap procedure so soon after it had been performed. In addition to extensive email correspondence, Dr. Oestreicher and Ms. Kram spoke by telephone on at least three occasions in late June and July 2010.

[42] On August 17, 2010, Ms. Kram returned to Dr. Oestreicher for further surgery to address her concerns. He performed a “bilateral lateral canthopexy” aimed at sharpening the corners of Ms. Kram’s eyes. Dr. Oestreicher testified that Ms. Kram signed an informed consent form prior to surgery which described the procedure to be performed as a “bilateral lateral canthopexy.” However, Ms. Kram took issue with the consent form entered into evidence at trial, stating that the form she signed described the surgery to be performed as a “lateral canthoplasty”. She testified that the first page on the consent form she signed “was tossed out and another page was substituted”. She also stated that she dated her own form whereas this one had someone else’s writing in the dateline.

[43] On August 23, 2010, Ms. Kram reported a splitting in the sutures on her left eyelid. She returned to Toronto on August 24, 2010 and had the wound repaired successfully by Dr. Oestreicher.

[44] In the fall of 2010, Ms. Kram remained dissatisfied with the results of her various surgeries with Dr. Oestreicher. She offered a number of suggestions about further surgeries that she wanted Dr. Oestreicher to perform to deal with her concerns. Dr. Oestreicher reviewed her suggestions but considered them to be experimental and unsuitable.

[45] Finally, on December 9, 2010, Dr. Oestreicher had a telephone conversation with Ms. Kram in which he advised that he did not have any further reasonable surgical options for her. Dr. Oestreicher confirmed this in a letter dated December 10, 2010, in which he stated that he “[did] not have a surgical solution for the concerns that you have”, and that he was “not willing to perform what I would consider overly uncertain surgery”. Although he indicated that “I would very much like to help you”, he had come to the view that “it would be improper to proceed any further and I am withdrawing myself from your care.” He also offered to refund her the money that she paid for June 15, 2009 surgery if she signed a release.

[46] Ms. Kram continued to email Dr. Oestreicher in December 2010 and January 2011 in the hopes that he would agree to perform more surgery. However, he repeated his view that he had no further surgical options to offer her and could not assist her further.

f. Subsequent Cosmetic Surgeries in California

[47] From May 2011 to April 2013, Ms. Kram consulted with 7 different surgeons in California. These surgeons either refused to take Ms. Kram on as a patient, or she declined to proceed with the surgeon in question.

[48] Eventually Ms. Kram found Dr. Robert Levine in Beverly Hills, California. Between April 2013 and July 2014, Ms. Kram had six more cosmetic eyelid surgeries performed by him, as follows: (i) April 15, 2013, “reconstruction of lid margins, opening of lateral canthus, both eyes, [and] related procedures, both eyes”; (ii) April 17, 2013, “removal of graft in left lower lid, lateral canthal reconstruction in both eyes, [and] any other related procedures”; (iii) April 23, 2013 a dehiscence repair; (iv) June 11, 2013, “open left lateral canthus in addition removal left lateral canthus lesion, bilateral left lower lid blepharoplasty, [and] bilateral medial fatty tissue removal upper lids”; (v) on April 2, 2014, “fascia lata graphs, reconstruction of lid margins, any other related procedures, right and left eyes”; (vi) June 25, 2014, “bilateral endotine implants, revision of left eye fascia lata, reconstruction of left lower lid margin, release of lid retraction left upper lid, [and] any other related procedures”; and (vii) July 16, 2014, “removal of endotine implant from left eye, [and] any other related procedures”.

Trial Proceedings

[49] On April 17, 2012, Ms. Kram commenced this action against Dr. Oestreicher seeking, amongst other things, damages for pain and suffering and permanent disfigurement, out-of-pocket costs and the cost of eyelid reconstruction. In late 2017, Ms. Kram amended her claim to include claims for exposure keratitis and crossed eyes.

[50] At trial, Ms. Kram alleged that Dr. Oestreicher breached the standard of care in performing the June 15, 2009 surgery and failing to obtain her informed consent for the June 15, 2009 and the April 19, 2010 surgeries. She alleged that the June 15, 2009 surgery was not what she requested or expected and that Dr. Oestreicher failed to adequately inform her of alternative surgical techniques that he could have utilized. Ms. Kram claimed that she had been disfigured by these surgeries and incurred, or would in the future incur, substantial costs to remedy the damage.

[51] The trial took place on March 12-16 and 19, 2018. On June 20, 2018 the trial judge dismissed the action with costs.

[52] The trial judge found that Dr. Oestreicher adequately informed Ms. Kram of the risks, alternatives, and benefits of the cosmetic surgery he performed on June 15, 2009, and she consented to it. He also found that the informed consent forms tendered in evidence were in fact the forms signed by Ms. Kram at the time of the surgery on June 15, 2009.

[53] The trial judge also concluded that the surgery was reasonable in the circumstances and was performed as intended and in a competent manner. The trial judge preferred the expert evidence of Dr. Harvey, who was called on behalf of Dr. Oestreicher, over the expert evidence of Dr. Shamoun, who was called on behalf of Ms. Kram. Based on this expert evidence, the trial judge found that Dr. Oestreicher met the standard of care and the result of the surgery was satisfactory. The trial judge found that Dr. Oestreicher carried out his examinations and evaluations in a thorough and competent manner, was attentive to Ms. Kram’s needs and tried to address her concerns at all times.

[54] The trial judge also found that the subsequent three surgeries were performed competently and with Ms. Kram’s informed consent.

[55] Finally, the trial judge dismissed Ms. Kram’s claims relating to keratitis and crossed eyes, finding that the plaintiff failed to establish that these conditions were caused by Dr. Oestreicher’s surgeries.

[56] While the trial judge found no liability, he also assessed what damages would have been had he found Dr. Oestreicher liable. He assessed general damages at $12,500. He held that Ms. Kram had failed to demonstrate on a balance of probabilities that she lost any income as a result of Dr. Oestreicher’s conduct. The trial judge assessed Ms. Kram’s special damages at $9,102.49, comprised of the costs of the surgery as well as her airfares, ground transportation, and hotel costs associated with the travel between Calgary and Toronto for the surgeries. He assessed her claim for past eye drop costs at $250 and future eye drop costs at $2500, but rejected the rest of her alleged pharmacy costs because there were no receipts or invoices to document her claims.

[57] Finally, the trial judge rejected Ms. Kram’s claims for costs for future surgeries, breach of contract (since the damages for breach of contract would be the same as the damages for tort), and punitive damages.

[58] In summary, the trial judge assessed damages as follows:

a. $12,500 in general damages; and

b. $11,852.49 in special damages,

for a total of $24,352.49.

Issues Raised by Ms. Kram

[59] Ms. Kram submits that the trial judge erred:

(a) in his reasonable person analysis;

(b) in ignoring the Statement of Claim and Statement of Defence;

(d) in giving no weight to Dr. Shamoun, the expert witness called by Ms. Kram, or preferring the testimony of Dr. Harvey over Dr. Shamoun;

(e) in not looking at the “before and after” photos of Ms. Kram entered into evidence;

(f) in not following the reasonable standard of care;

(g) in finding Dr. Oestreicher’s testimony more reliable than Ms. Kram’s;

(h) in finding that Ms. Kram received the surgery she requested on June 15, 2009 and provided her informed consent for the procedures; and

(i) in assessing damages.

[60] In addition, Ms. Kram brought a motion to adduce fresh evidence, including additional evidence of damages not available at the date of trial, a recent photograph of herself, excerpts of discovery transcripts, and various articles, photographs and illustrations taken from internet websites and other sources.

Fresh Evidence

[61] At the outset of the hearing, the Court advised the parties that we would reserve our decision on the admissibility of any fresh evidence until after the hearing. We would then be in a position to determine which portions of the fresh evidence were actually relied on by Ms. Kram, and whether any portions met the test for admissibility of fresh evidence.

[62] The test for the admissibility of fresh evidence was established by the Supreme Court of Canada in Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759, at para. 22:

(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial;

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;

(3) The evidence must be credible in the sense that it is reasonably capable of belief; and

(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[63] In our view, none of the proposed fresh evidence referenced by Ms. Kram is properly admissible on this appeal.

[64] The trial judge’s assessment of damages must be made on the basis of the evidence available at the time of trial. The principle of finality precludes litigants from returning to court with additional or updated damages claims once their damages have been assessed at trial: Tsaoussis v. Baetz (1998), 1998 5454 (ON CA), 41 O.R. (3d) 257 (Ont. C.A.), at p. 272. That principle applies to both Ms. Kram, who cannot ask that damages awarded at trial be increased, and Dr. Oestreicher, who cannot ask that damages awarded at trial be decreased, as a result of evidence gathered after the trial.

[65] In any event, the trial judge dismissed Ms. Kram’s claim on its merits, and no damages were awarded. Unless she can persuade the court that the trial judge erred in finding no liability, the evidence on damages could not have affected the result.

[66] The various articles, photographs and illustrations taken from internet websites and other sources were publicly available and discoverable by due diligence before the trial in March 2018.

[67] Moreover, these materials are only admissible through a qualified expert who can testify as to the reliability and significance of this material in this case, and whose evidence in this regard can be tested on cross-examination. While Ms. Kram has undoubtably gained much personal knowledge in researching the topics covered by these articles, she cannot be qualified as an expert in her own case, and she is not permitted to explain or offer opinions on whether or why these articles should affect the result of her case. For the same reason, the recent photograph of Ms. Kram is also inadmissible.

[68] The excerpts of discovery transcripts do not meet the first test in the Palmer case, since they were available before the trial and could have been relied on by Ms. Kram during the trial. Nor, in our view, is there anything in the discovery transcripts that could have affected the result below. The information referenced in the transcripts was canvassed by the trial judge as part of his reasons.

[69] For these reasons, the motion to adduce fresh evidence is dismissed.

Standard of Review

[70] On appeal of a judge’s order, the appellate standards set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, apply. Questions of law are reviewed on a standard of correctness. A finding of fact or a finding of mixed fact and law are reviewable on a standard of palpable and overriding error. Where the legal principle is not readily extricable and the question of fact and of law are inextricably intertwined, the matter is to be reviewed on a standard of correctness. See also Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 37.

[71] The issues raised by Ms. Kram are allegations of factual errors by the trial judge. The appellant has not identified any error of law in this case. For example, the trial judge correctly stated the law on the standard of care, and informed consent (see, for example, paras. 53, 54, 90, 96, and 97), as well as the law on the admissibility of expert evidence (see paras. 56-57).

[72] The findings of fact made by the trial judge are entitled to deference from this reviewing court. A “palpable and overriding error” is one that can be plainly seen (Housen at paras. 5-6). The reviewing court is not permitted to retry the case, or reweigh the evidence, because the trier of fact is in a privileged position to assess the credibility of witnesses’ testimony at trial (Housen at para. 18).

[73] In Farsi v. Da Rocha, 2020 ONCA 92, the Court of Appeal for Ontario recently stated, at para. 35:

A palpable and overriding error is one that is clearly wrong, unreasonable, or not reasonably supported on the evidence: H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401, at para. 110. The Supreme Court recently explained in Salomon v. Matte‑Thompson, 2019 SCC 14, 432 D.L.R. (4th) 1, at para. 33, “[w]here the deferential standard of palpable and overriding error applies, an appellate court can intervene only if there is an obvious error in the trial decision that is determinative of the outcome of the case.”

[74] There is no basis to accept Ms. Kram’s argument that the trial judge has made a palpable and overriding error in his findings of fact. The trial judge gave detailed and careful reasons for the factual findings made. While there was conflicting evidence, the trial judge was entitled to weigh that conflicting evidence and decide which witnesses or evidence he preferred.

[75] The trial record demonstrates that hundreds of photographs of Ms. Kram were made exhibits to the trial. These photographs were used by the various witnesses to illustrate their testimony. There is no basis to conclude that the trial judge failed to consider this evidence.

[76] The trial judge’s findings regarding Ms. Kram’s reliability as a witness (see paras. 92-94) and his assessment of damages are entitled to deference, and there is no palpable or overriding error identified in his analysis of these issues. The trial judge’s findings relating to informed consent for the June 15, 2009 and the April 19, 2010 surgeries were based, in part, on his findings of reliability and credibility and cannot be reweighed by this court on appeal.

[77] As in most medical malpractice cases, the trial judge’s decision turned primarily on his assessment of the expert evidence adduced at trial. Issues such as the applicable standard of care, informed consent and causation require expert evidence because courts do not otherwise have the knowledge or expertise to determine whether a physician has conducted him- or herself properly in the relevant field of medicine.

[78] One ground of appeal in this case was the trial judge’s decision to allow Dr. Harvey to testify as an expert witness for the defence. Ms. Kram challenged Dr. Harvey on the basis that he was not sufficiently independent of Dr. Oestreicher because Dr. Harvey and Dr. Oestreicher shared some professional associations.

[79] Following a voir dire, the trial judge was satisfied with Dr. Harvey’s independence and objectivity and qualified him as an expert in the case. The trial judge made the following ruling on this issue, at paras. 66-68:

The professional qualifications of the defence expert, Dr. Harvey, were not at issue. He has been licensed as an oculoplastic surgeon in Ontario for nearly 30 years. He maintains an active clinical practice that focuses only on the orbit, eyelids and lacrimal systems. He is a Professor Emeritus and former Head of the Division of Ophthalmology at McMaster University in Hamilton Ontario. He holds professional memberships with the Canadian Ophthalmological Society, the Canadian Society of Oculoplastic Surgery, and the ASOPRS. He has published over 50 articles in peer-reviewed journals and has authored dozens of non-peer reviewed publications and presentations, most of which deal with issues relating to oculoplastic surgery.

The only concern with respect to Dr. Harvey was whether his prior professional association with Oestreicher might be thought to impair in some way his objectivity and independence. Dr. Harvey testified that he has known Oestreicher since the early 1990s. He has attended conferences where Oestreicher was present and he has co-authored a number of articles with him over the years. However, the last of these co-authored articles was published in 2008.

Prior to qualifying Dr. Harvey is an expert, I questioned him with respect to his prior professional connections with Oestreicher and had an opportunity to observe his demeanour and approach. I also note that he has executed a Form 53 acknowledging his duty to the Court to provide opinion evidence that is fair, objective, and nonpartisan. Based on these inquiries, I was entirely satisfied with his independence and objectivity and I qualified him as an expert in oculoplastic surgery in Ontario from 2009 to 2012.

[80] Ms. Kram argues the trial judge erred in permitting Dr. Harvey to testify as an expert in these circumstances.

[81] The trial judge’s decision in this regard is consistent with the principles established by the Supreme Court of Canada in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182. In that case, the Supreme Court confirmed that a proposed expert must meet minimum standards of independence and impartiality. The Court stated, at para. 34:

[A] proposed expert’s independence and impartiality go to admissibility and not simply to weight and there is a threshold admissibility requirement in relation to this duty. Once that threshold is met, remaining concerns about the expert’s compliance with his or her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his or her gatekeeping role.

[82] In White Burgess the Court set out the following principles for determining whether a proposed expert witness has met the minimum threshold for independence and impartiality, at paras. 48-49:

Once the expert attests or testifies on oath to this effect [acknowledging his duty to the Court to provide opinion evidence that is fair, objective, and nonpartisan], the burden is on the party opposing the admission of the evidence to show that there is a realistic concern that the expert’s evidence should not be received because the expert is unable and/or unwilling to comply with that duty. If the opponent does so, the burden to establish on a balance of probabilities this aspect of the admissibility threshold remains on the party proposing to call the evidence. If this is not done, the evidence, or those parts of it that are tainted by a lack of independence or impartiality, should be excluded. This approach conforms to the general rule under the Mohan framework, and elsewhere in the law of evidence, that the proponent of the evidence has the burden of establishing its admissibility.

This threshold requirement is not particularly onerous and it will likely be quite rare that a proposed expert’s evidence would be ruled inadmissible for failing to meet it. The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. For example, it is the nature and extent of the interest or connection with the litigation or a party thereto which matters, not the mere fact of the interest or connection; the existence of some interest or a relationship does not automatically render the evidence of the proposed expert inadmissible. In most cases, a mere employment relationship with the party calling the evidence will be insufficient to do so. On the other hand, a direct financial interest in the outcome of the litigation will be of more concern. The same can be said in the case of a very close familial relationship with one of the parties or situations in which the proposed expert will probably incur professional liability if his or her opinion is not accepted by the court. Similarly, an expert who, in his or her proposed evidence or otherwise, assumes the role of an advocate for a party is clearly unwilling and/or unable to carry out the primary duty to the court. I emphasize that exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence.

[83] The trial judge directed his analysis to the factors outlined by the Supreme Court in White Burgess. It is hardly surprising that Dr. Harvey and Dr. Oestreicher would have a long-standing professional association given that they are both specialists in the same field of medicine in the province of Ontario. This sort of professional association or relationship does not render the evidence of the proposed expert inadmissible. There was no evidence of any direct financial interest, familial relationship or personal interest that would render Dr. Harvey’s evidence inadmissible.

[84] Ms. Kram also argues that the trial judge erred in giving no weight to Dr. Shamoun’s evidence, or preferring the testimony of Dr. Harvey over Dr. Shamoun.

[85] The trial judge qualified Dr. Shamoun as an expert on eyelid surgery in Ontario during the relevant time. He also ruled that Dr. Shamoun’s opinion on standard of care was limited to criticisms of the care provided through the June 15, 2009 surgery because Dr. Shamoun’s expert report did not disclose criticisms of any other aspects of Dr. Oestreicher’s care.

[86] The trial judge provided detailed reasons why he preferred the evidence of Dr. Harvey over that of Dr. Shamoun. First, he found that Dr. Harvey had superior qualifications because he is both an ophthalmologist and an oculoplastic surgeon whose clinical work deals exclusively with the orbital region. Dr. Harvey has performed thousands of blepharoplastys on the upper and lower eyelids using various surgical techniques, including the lateral tarsal strip at issue in this proceeding. In contrast, Dr. Shamoun is a plastic surgeon as opposed to an ophthalmologist or an oculoplastic surgeon, and his clinical practice is not focused on eyelid surgery.

[87] Secondly, Dr. Harvey reviewed the entire documentary record available in this case, including the transcripts of the examinations, all relevant medical records, and all of the emails, photographs and other correspondence exchanged between the parties. In contrast, Dr. Shamoun reviewed only handpicked materials that Ms. Kram had sent to him.

[88] Thirdly, the trial judge found that Dr. Harvey testified in a candid, forthright and direct manner and was clearly familiar with all aspects of matters relevant to the litigation. In contrast, the trial judge found that Dr. Shamoun seemed unfamiliar with many relevant details.

[89] Accordingly, the trial judge attached little or no weight to Dr. Shamoun’s evidence regarding the standard of care, and preferred the evidence of Dr. Harvey where he differed from Dr. Shamoun. This is precisely the kind of factual assessment that is entitled to deference from a reviewing court, and Ms. Kram has identified no palpable or overriding error.

[90] There is no merit to the argument that the trial judge ignored the Statement of Claim or Statement of Defence. It is clear from para. 2 of his decision that he understood the basis of Ms. Kram’s allegations and that the essence of her complaint against Dr. Oestreicher was that the “June 15, 2009 surgery was not what she requested or expected and that Oestreicher failed to adequately inform her of alternative surgical techniques.” The trial judge correctly identified the legal issues raised by the pleadings and dealt with them in accordance with the correct legal principles and his findings of fact.

Conclusion

[91] In the result, the appeal is dismissed.

[92] If the parties cannot agree on costs, Dr. Oestreicher may serve and file costs submission of not more than three pages plus costs outline and any offers to settle within 20 days of the release of this decision, and Ms. Kram may serve and file responding costs submission on the same terms within a further 15 days.

CHARNEY J.

I agree

SACHS J.

I agree

BACKHOUSE J.

Released: April 7, 2020

CITATION: Kram v. Oestreicher, 2020 ONSC 2102

DIVISIONAL COURT FILE NO.: DC-18-455-00

DATE: 20200407

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Nancy Kram

Plaintiff (Appellant)

– and –

Dr. James Oestreicher

Defendant (Respondent)

REASONS FOR DECISION

Charney J.

Released: April 7, 2020

Kram v. Oestreicher, 2020 ONSC 2102

Case Summary

REASONS FOR DECISION

Introduction

Court’s Jurisdiction

Background Facts

a. June 15, 2009 Surgery

b. August 4, 2009 Surgery

c. April 19, 2010 Surgery

d. August 17, 2010 Surgery

f. Subsequent Cosmetic Surgeries in California

Trial Proceedings

Issues Raised by Ms. Kram

Fresh Evidence

Standard of Review

Conclusion

Judges

Counsel

Parties

Areas of Law

Fact Patterns

Expert Witnesses

Financial Outcomes

Issues

Statutory Provisions 2

Legal Tests 3

Legislation 1