COURT OF APPEAL FOR ONTARIO DATE: 20231130 DOCKET: C70934

Tulloch C.J.O., Lauwers and Miller JJ.A.

BETWEEN

Melanie Willick, Paul Willick, Dustin Willick and Daniel Willick Plaintiffs (Appellants)

and

Dr. Peter Willard, Dr. David James, Dr. Paul Gibbons, Dr. Ravi Motilall, Dr. Krzysztof Habdank, Dr. Rakesh Aggarwal, Dr. J. Doe #1, Dr. J. Doe #2, Nurse J. Doe #1, Nurse J. Doe #2, Nurse J. Doe #3, Niagara Health System – Welland Hospital Site, and Dr. Michael Csanadi Defendants (Respondents)

Counsel: Toby Samson and Ryan Marinacci, for the appellants Sarit E. Batner and Erin S. Chesney, for the respondents

Heard: September 11, 2023

On appeal from the judgment of Justice James A. Ramsay of the Superior Court of Justice, dated July 4, 2022.

Lauwers J.A.:

I. Overview

[1] On March 10, 2014, Brian Willick was doing renovation work at his late father’s house when a temporary staircase collapsed beneath him, and he fell into the basement. Melanie Willick, his spouse, took him to Welland County Hospital where he was admitted to the emergency room. Dr. Peter Willard treated him and eventually discharged him, referring him to his family doctor, Dr. Michael Csanadi, for follow up.

[2] On March 24, 2014, Mr. Willick passed away. He was 51 years old. The cause of death was exsanguination – loss of blood, resulting from the rupture of a subcapsular hematoma in his spleen. The appellants are Brian Willick’s spouse, and his sons, Paul and Dustin Willick. They sued the respondents, Dr. Willard and Dr. Csanadi, among others, for medical negligence in treating Mr. Willick.

[3] The trial judge dismissed the case. He found that Mr. Willick had not suffered a detectable injury to his spleen when Dr. Willard treated him. The trial judge also found that Dr. Csanadi’s decision to clear Mr. Willick for a return to work was appropriate. The appellants appeal the trial judge’s decision concerning Dr. Willard and Dr. Csanadi.

[4] I would dismiss the appeal for the reasons that follow.

II. The Issues

[5] The appellants raised three issues and argued them orally in this sequence: 1. Did the trial judge err in law by failing to properly apply the law of causation? 2. Did the trial judge err in law by providing insufficient reasons on the issue of whether the respondents had met the standard of care? 3. Did the trial judge err in law in his analysis of the respondents’ credibility?

[6] I would express and address the issues differently in light of the legal framework structuring medical malpractice cases. To succeed in such a lawsuit, the plaintiff must prove, on a balance of probabilities, that: (a) the defendant owed a duty of care to the plaintiff; (b) the defendant breached the standard of care; (c) the defendant’s breach caused the plaintiff to suffer a bodily injury; and (d) the injury must not be too remote a result of the defendant’s conduct: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, 293 D.L.R. (4th) 29, at para. 3. In this case, there is no dispute that the respondent doctors each owed Mr. Willick a duty of care appropriate to their qualifications – Dr. Willard as a surgeon, and Dr. Csanadi as a family doctor. The last issue – remoteness – plays no role in this case.

[7] I will address the remaining issues in this sequence, after setting out the factual context:

1. Did Dr. Willard and Dr. Csanadi, each or both, breach the standard of care that each of them owed to Mr. Willick?
2. Did the trial judge err in law in his analysis of the respondents’ credibility?
3. Did a breach of the standard of care cause Mr. Willick’s death?
4. Do the trial judge’s reasons provide an adequate basis for the appeal?

III. The Factual Context

[8] Mr. Willick suffered from non-alcoholic cirrhosis of the liver such that his blood did not clot as quickly as the average person. He also suffered from splenic hypertension and an enlarged spleen. As a result, compared to the average person, Mr. Willick had a relatively high risk of splenic rupture and consequent fatal injury.

[9] It is common ground that there are two types of splenic injury. The first is a splenic rupture, which will typically result in bleeding into the space between the internal organs and the inner lining of the abdominal wall, known as the peritoneal cavity. The second type of splenic injury is a subcapsular hematoma, or bleeding contained within a capsule in the spleen. Subcapsular hematomas can rupture on a delayed basis after an initial trauma to the spleen.

[10] When Mr. Willick arrived at the hospital after his fall, an emergency room physician, Dr. David James, ordered an ultrasound imaging that showed no fluid in Mr. Willick’s chest. Dr. James also ordered the first of what would be three CT (computerized tomography) scans. The results of these scans are pivotal to the determination of this case.

[11] The first CT scan was of Mr. Willick’s chest and showed that his left ninth rib was fractured and that there was fluid in his chest. That rib crosses over the spleen. Dr. Krzysztof Habdank, then a junior radiologist, assessed the first CT scan and suspected that the fluid in Mr. Willick’s chest was hemoperitoneum, that is, pooling of blood in the peritoneal cavity. Hemoperitoneum can result when an organ, such as the spleen, ruptures and bleeds. Pooling blood appears on a CT scan, but only as fluid. A CT scan cannot determine what type of fluid is in a patient’s peritoneal cavity; that is an issue of clinical judgment to be made by a qualified doctor. Dr. James consulted with the respondent surgeon, Dr. Willard, who saw no acute injury requiring surgical intervention.

[12] Dr. James ordered a second CT scan, which was of Mr. Willick’s abdomen. Dr. Habdank reported that it showed dense fluid in the peritoneal cavity and heterogeneity (meaning irregularity or variegation) in his spleen, which raised the suspicion of a splenic injury.

[13] Dr. James again consulted Dr. Willard, who then admitted Mr. Willick into his service. Dr. Willard ordered new blood work, a multiphasic CT scan with contrast, and blood typing to prepare for emergency surgery, if necessary.

[14] The third CT scan showed Mr. Willick’s pre-existing conditions: cirrhosis of the liver, splenic hypertension, and an enlarged spleen. Dr. Willard consulted Dr. Rakesh Aggarwal, the senior radiologist at Welland County Hospital. Upon review of the scans, Dr. Aggarwal was of the opinion that there was no ongoing peritoneal hemorrhage. There was also no evidence of subcapsular hematomas in the spleen. These facts provided strong evidence that Mr. Willick had not suffered a splenic injury in the fall on March 10.

[15] Mr. Willick’s second and third CT scans showed fluid in his peritoneal cavity but, in Dr. Willard’s clinical judgment, that fluid was not blood. Dr. Willard based this judgment on the fact that the amount of fluid had not changed between CT scans, which one would expect if an organ were bleeding. Dr. Willard explained that he was not concerned about Mr. Willick’s splenic heterogeneity because it was consistent with his pre-existing condition of an enlarged spleen. Dr. Willard also noted that the fluid in Mr. Willick’s peritoneal cavity was unrelated to the spleen because it was on the right side, near the liver, while the spleen is on the left, and the presence of fluid is a common symptom of his pre-existing liver cirrhosis.

[16] As noted, the second type of splenic injury is the rupture of a subcapsular hematoma. This is what happened to Mr. Willick, 14 days after his fall. But, according to Dr. Aggarwal, Mr. Willick’s third and more comprehensive CT scan showed no evidence of subcapsular hematomas at the time of his attendance at the hospital. Dr. Aggarwal’s assessment is not disputed.

[17] Dr. Willard testified that, on the basis of these results, he concluded that Mr. Willick had not suffered either type of splenic injury – a splenic rupture or a subcapsular hematoma – as the result of his fall. Dr. Willard instructed Mr. Willick to rest for a week and then follow-up with his family doctor before returning to work.

[18] On March 18, 2014, Mr. Willick saw his family doctor, Dr. Csanadi, who reviewed his hospital records, conducted a physical examination, and ordered an ultrasound for April 27, 2014. The physical examination did not reveal any bruising. Dr. Csanadi wrote on the ultrasound requisition form: “f/u [follow up] hemoperitoneum known ascites and massive HS megaly.” He testified that he referred to hemoperitoneum (pooling of blood) in the form only because the possibility of its presence had arisen in Mr. Willick’s medical record. The ultrasound was not ordered to investigate the spleen again but in order to set a “new baseline” for Mr. Willick, whom Dr. Csanadi had not seen in a while. Given the CT scan results and his own physical examination of Mr. Willick, Dr. Csanadi was not concerned about hemoperitoneum at that time. He cleared Mr. Willick to return to work but told him to remain sedentary and to seek immediate medical treatment if he suffered any “decompensation” symptoms in the form of pain or bruising.

[19] Mr. Willick returned to work on March 20, 2014. He worked as a construction foreman at a dam site about 90 kilometers from Kapuskasing. By the evening of March 23, Mr. Willick had developed bruising on his chest and he complained of pain, but he did not seek help, despite Dr. Csanadi’s instructions. Mr. Willick was not feeling well the next morning and the company ambulance began transporting him to Kapuskasing. A hospital ambulance left from Kapuskasing at 10:33 a.m. to meet him on the way. Mr. Willick was transferred to the hospital ambulance at 11:18 a.m. Shortly thereafter, Mr. Willick’s heart stopped. Paramedics attempted CPR for about 40 minutes and, on arrival at the hospital, hospital staff attempted resuscitation for another 15 minutes. These efforts were unsuccessful, and Mr. Willick was pronounced dead at 12:15 p.m.

[20] The autopsy showed four subcapsular hematomas in Mr. Willick’s spleen, one of which had ruptured, resulting in about 3.8 litres of blood escaping into Mr. Willick’s abdominal cavity. The pathologist determined that Mr. Willick had died from this loss of blood.

IV. Analysis

(1) Did Dr. Willard and Dr. Csanadi, either or both, breach the standard of care that each of them owed to Mr. Willick?

[21] The appellants submit that the trial judge erred in law by failing to clearly specify the particularized standards of care for Dr. Willard and Dr. Csanadi that would admit of meaningful appellate review. In Armstrong v. Royal Victoria Hospital, 2019 ONCA 963, 452 D.L.R. (4th) 555, at para. 87, this court held that “[i]n any case where standard of care is in issue, the court must determine what is reasonably required to be done (or avoided) by the defendant”.

[22] The appellants contend that the trial judge conducted “no analysis as to what the standard of care was” for either respondent because he never stated what a reasonably prudent doctor would have done in their circumstances. This, they assert, gives rise to a risk that the trial judge erroneously applied the same standard to both doctors, even though they had different specialties and facts available to them.

[23] However, the trial judge’s findings on the standard of care are rooted in the evidence of the experts. The appellants’ expert general surgeon, Dr. Ian Woolfson, testified that Dr. Willard had failed to meet the standard of care of a general surgeon in that he should have: (i) been more suspicious of splenic injury given Mr. Willick’s pre-existing conditions; (ii) followed up with Mr. Willick personally; and (iii) instructed him to restrict his activities for several weeks while remaining in close proximity to a hospital.

[24] The appellants’ expert family doctor, Dr. Geoffrey Morris, testified that Dr. Csanadi had failed to meet the standard of care of a family doctor in that he should have: (i) not authorized a return to work until he had received the ultrasound results; (ii) told Mr. Willick not to work in a remote location (such as Kapuskasing); (iii) instructed Mr. Willick about the risk of delayed splenic rupture; and (iv) emphasized the need for emergent care in the event of a rupture.

[25] The appellants’ expert, Dr. Woolfson, agreed in cross-examination that if the trial judge accepted Dr. Willard’s testimony that he spoke to Dr. Aggarwal about the CT scan results, then Dr. Willard would have met the standard of care. Dr. Woolfson also agreed that there was evidence, such as Mr. Willick’s bruising on March 23, 2014, that Mr. Willick might have suffered an intervening trauma after he left Dr. Willard’s care.

[26] The respondents’ expert general surgeon, Dr. Christopher Cobourn, testified that Dr. Willard had met the standard of care applicable to a general surgeon. There was insufficient evidence of splenic injury when Mr. Willick was under Dr. Willard’s care, and a delayed splenic rupture two weeks after a trauma is extremely rare. Dr. Cobourn said that Dr. Willard’s advice to follow-up with his family doctor was appropriate in the circumstances.

[27] The respondents’ expert family doctor, Dr. Ronald Bornstein, testified that Dr. Csanadi had met the standard of care applicable to a family doctor. Dr. Csanadi paid appropriate attention to the risk of splenic injury. He ordered a prudent but unnecessary ultrasound. His clearance for Mr. Willick to return to work was appropriate given the absence of evidence of splenic injury, the fact that Mr. Willick was feeling well, the benign results of Dr. Csanadi’s physical examination of Mr. Willick, and Mr. Willick’s apparent stability since his treatment at the hospital. The respondents’ expert Dr. Cobourn added that, even if he had received medical attention sooner, Mr. Willick would not likely have survived because of his co-morbidities.

[28] Based on this evidence, the trial judge determined that Dr. Willard had met the standard of care because, while Mr. Willick was in his care, there was a “reasonable basis upon which to conclude that [Mr. Willick] was not bleeding, whether into his spleen or out of it,” and “no subcapsular haematomas were visible on the CT scans”: at paras. 43-44. Moreover, “[i]n the absence of a splenic injury,” the trial judge held that “it was appropriate to refer [Mr. Willick] to his family doctor for follow up”: at para. 44.

[29] Similarly, the trial judge found that Dr. Csanadi had met the standard of care because a “family doctor is not expected to be more qualified to diagnose a splenic injury than [a] surgeon”: at para. 45. This language makes it clear that the trial judge was well aware that two different standards of care, one for each doctor, were engaged. The trial judge noted that Dr. Csanadi considered the possibility of splenic injury and ordered an ultrasound out of an abundance of caution. However, he was also “entitled to conclude that [Mr. Willick] had not suffered a splenic injury” based on Dr. Willard’s conclusions: at para. 45. In the absence of evidence of a splenic injury, the trial judge found that it was reasonable for Dr. Csanadi to clear Mr. Willick for work.

[30] In my view, read in context, the trial judge’s reasons show that he engaged with the standard of care that was applicable to each respondent. The trial judge summarized the testimony of the competing experts, and this summary reveals the standard of care owed to Mr. Willick by each respondent.

[31] On the content of the standard of care owed by Dr. Willard, the trial judge noted that the respondent’s expert general surgeon, Dr. Cobourn, opined that Dr. Willard had “met the standard of care” because “there was no clinical evidence at the time of [Mr. Willick’s] admission to hospital that he had suffered either type of splenic injury” and “therefore no reason… to have been concerned about the risk of delayed splenic rupture”: at para. 24. The trial judge “preferred the evidence” of Dr. Cobourn: at para. 48. The trial judge also stated that “in the absence of a splenic injury… it was appropriate to refer the patient to his family doctor for follow up”: at para. 44. These statements articulate the standard of care applicable to Dr. Willard. In the absence of evidence of splenic injury, a reasonably prudent surgeon in Dr. Willard’s circumstances would have discharged the patient without cautions against delayed splenic rupture.

[32] The standard of care for Dr. Csanadi is likewise demonstrated in the opinions of the experts. The respondents’ expert family doctor, Dr. Bornstein, opined that “it was appropriate for Dr. Csanadi to let [Mr. Willick] go back to work” because “his spleen had not been injured on March 10”: at para. 31. The trial judge agreed, holding that Dr. Csanadi was “entitled to conclude that [Mr. Willick] had not suffered a splenic injury” on the basis of Dr. Willard’s conclusions as well as his own physical examination: at para. 45. In light of these considerations, the trial judge found that Dr. Csanadi’s advice “was reasonable and met the standard of care”: at para. 45. These statements constituted an articulation of the standard of care applicable to Dr. Csanadi. In the absence of evidence of splenic injury, a reasonably prudent family doctor in Dr. Csanadi’s circumstances would have cleared Mr. Willick for work without cautions against splenic rupture.

[33] The appellants also take issue with the trial judge’s comments that Dr. Woolfson, one of the appellants’ experts, conceded that Dr. Willard had met the standard of care. The appellants submit that a trial judge cannot “pick and choose” aspects of the expert testimony, accepting their experts’ concession but rejecting the rest of their evidence.

[34] I disagree that the trial judge’s use of Dr. Woolfson’s evidence was inappropriate. The trial judge did not wrongfully “pick and choose” which pieces of the appellants’ expert’s evidence to accept. Rather, the trial judge observed that Dr. Woolfson struggled to maintain his opinion under cross-examination and properly relied on that fact as a reason to reject the expert’s evidence. Despite rejecting Dr. Woolfson’s evidence broadly, the trial judge was entitled to rely on parts of the evidence that he found credible, in this case a concession brought out in cross-examination.

(2) Did the trial judge err in law in his analysis of the respondents’ credibility?

[35] The appellants also raise issues with the trial judge’s credibility assessment of both Dr. Willard and Dr. Csanadi. The trial judge considered Dr. Willard’s testimony to be credible despite three challenges advanced by the appellants, on which he was cross-examined. Two of the challenges involved two documents indicating that Mr. Willick might have suffered a peritoneal hemorrhage while he was under Dr. Willard’s care.

[36] The first document was the hospital discharge summary, which referred to “haemoperitoneum” as appearing on Mr. Willick’s scans. Dr. Willard did not author the discharge summary, though he did sign it. Apart from the use of the word “haemoperitoneum” in the document, the rest of the discharge summary was consistent with Dr. Willard having ruled out splenic injury. The trial judge accepted Dr. Willard’s explanation that he had only signed off on the last paragraph of the discharge summary and found that the discharge summary did not adversely effect Dr. Willard’s credibility.

[37] The second document and challenge to Dr. Willard’s credibility was a letter signed by Dr. Willard to the regional coroner, but written by the emergency room physician, Dr. James, which states that Dr. Willard had “elected to treat the splenic injury… conservatively.” The trial judge accepted Dr. Willard’s evidence that he signed the letter but did not author it. Dr. Willard testified that his signature only indicated his agreement that Mr. Willick’s care at Welland County Hospital had been appropriate. He did not endorse the letter’s inaccurate accounts about what had happened to Mr. Willick.

[38] The appellants argue that it was an error of law to treat Dr. Willard’s bare credibility as a witness as being sufficient to displace his signed acknowledgement to the coroner of splenic injury. The appellants argue that this acknowledgement, the fact that the pathologist attributed Mr. Willick’s death to his fall on March 10, and that Mr. Willick’s CT scans could not definitively rule out splenic injury, made it “inappropriate” for the trial judge to accept Dr. Willard’s testimony that he had personally ruled out splenic injury.

[39] The trial judge found that, in context, the letter to the coroner, which Dr. Willard did not author and which contained several errors and inaccuracies, was unreliable. Again, the trial judge found that Dr. Willard’s credibility was not adversely affected. He also found that Dr. Willard withstood cross-examination well.

[40] The third, and most substantial, challenge was whether Dr. Willard’s testimony that he had spoken with Dr. Aggarwal about Mr. Willick’s CT scans was credible. There were no notes in Mr. Willick’s chart evidencing that Dr. Willard had discussed Mr. Willick’s CT scans with Dr. Aggarwal. However, Dr. Willard testified that this conversation occurred, and Dr. Aggarwal stated during his examination for discovery that such a conversation would have been common practice. The trial judge made a finding of fact that Dr. Willard did discuss the CT scans with Dr. Aggarwal, despite the lack of a record of that conversation. The trial judge considered this conversation to be evidence that Dr. Willard had met the standard of care because, in his view, the appellants’ expert Dr. Woolfson had conceded that Dr. Willard would have met the standard of care if he had spoken to Dr. Aggarwal: at para. 44.

[41] The appellants also submit that it was an error to treat Dr. Csanadi’s testimony as credible because it was based on knowledge that Dr. Csanadi did not have at the time he assessed Mr. Willick. Specifically, the appellants argue that the imaging available to Dr. Csanadi only ruled out a peritoneal hemorrhage, not a splenic injury altogether. Dr. Csanadi was therefore wrong to suggest that Dr. Willard had ruled out splenic injury and was not concerned about it. However, this is too narrow a view of the evidence that was available to Dr. Csanadi, which established that Dr. Willard had ruled out splenic injury, including the fact of Mr. Willick’s discharge by Dr. Willard, Mr. Willick’s hospital admissions records indicating that hospital staff had identified no splenic injury, and Dr. Csanadi’s own physical examination of Mr. Willick.

[42] The appellants characterize the trial judge’s credibility findings as amounting to legal error. However, this court recognizes the particular advantage of trial judges in assessing the credibility of witnesses and defers to credibility findings in the absence of palpable and overriding error: Calin v. Calin, 2021 ONCA 558, at para. 16; Hacopian-Armen Estate v. Mahmoud, 2021 ONCA 545, at paras. 66-67. Indeed, given the advantages of trial judges in assessing credibility, the Supreme Court has stated: “Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal”: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26. Given the trial judge’s analysis set out above, there is no basis on which this court can reject the trial judge’s credibility findings. Each finding of credibility was open to the trial judge on the evidence before him.

(3) Did a breach of the standard of care cause Mr. Willick’s death?

[43] The appellants argued causation before they argued whether the standards of care were breached and relied on this court’s decision in Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387 as authority for doing so. They cite para. 47, where, writing for the court, I said:

Regardless of whether the defendant's breach of the standard of care is an act or an omission, the trier of fact’s cognitive process in determining causation has three basic steps. The first is to determine what likely happened in actuality. The second is to consider what would likely have happened had the defendant not breached the standard of care. The third step is to allocate fault among the negligent defendants.

[44] The appellants submit that the trial judge failed to clearly apply the requisite three-step causation analysis. With respect, that is not the correct reading of para. 47 of Sacks, which is not a prescription that mandates a particular analytical framework but a description of the reasoning process in an ordinary case. The trial judge did not err by engaging in a different process.

[45] The appellants make three further arguments against the trial judge’s causation analysis, each of which relate to his conclusion that an intervening event had caused Mr. Willick’s death, rather than the fall on March 10.

[46] First, they argue that no party pleaded an intervening event and so it was not open to the trial judge to conclude that one had occurred. Against this, the respondents submit that the issue of an intervening cause was properly before the trial judge because in their statement of defence, they stated that there were “independently arising medical conditions or injuries that caused or contributed to” Mr. Willick’s death and the parties actively engaged the issue during discovery and at trial. They argue that this conclusion was rationally connected to the evidence that Mr. Willick had not suffered a splenic injury as of March 10, 2014, but had suffered one by March 24, 2014. The respondents assert that the trial judge’s findings on this issue warrant appellate deference.

[47] Second, the appellants submit that the conclusion on an intervening event was an “irrational inference.” This is because the only evidence supporting an intervening event was that Mr. Willick had suffered pain and bruising after March 10, 2014, but that same evidence was also consistent with a delayed rupture.

[48] Third, the appellants submit that the trial judge did not clearly specify why he had accepted that an intervening trauma was the only explanation for Mr. Willick’s death in the face of conflicting evidence, so this conclusion does not admit of meaningful appellate review.

[49] I would reject the appellants’ submissions for three reasons. First, the issue in this case was whether there was a breach of a standard of care, and whether it caused Mr. Willick’s injury. It was not incumbent on the trial judge to make a definitive ruling on the cause of Mr. Willick’s death if there was no breach of the standard of care. In other words, having found no breach of the standard of care, he did not need to go on to make a finding on the cause of Mr. Willick’s death.

[50] Second, with respect, the submission on the potential intervening event somewhat overstates the strength of the trial judge’s conclusion. He was aware that there were two conclusions available on the evidence: that the delayed rupture was caused by the fall on March 10 or that the rupture was caused by another, later injury. He said, at para. 38:

Mr. Willick undoubtedly died from a delayed rupture of the spleen. A central question is whether it was delayed from the trauma of March 10 or from a later trauma. In the days before his death there is evidence that he suffered pain and bruising. That is evidence of a second trauma, as Dr. Woolfson conceded. I do not accept the plaintiffs’ submission that it would be speculating to infer an intervening trauma. The fact of recent bruising, however, is not conclusive. It is also consistent with a delayed rupture from the trauma of March 10. [Emphasis added.]

[51] The trial judge added, at para. 42:

If trauma causes a subcapsular haematoma, that is, bleeding that is contained in the capsule of the spleen, the haematoma can rupture within hours or days. A delay of 14 days would be uncommon, but not out of the question. [Emphasis added.]

[52] The trial judge provided his explanation at para. 43:

Haematoma occurs at the time of the trauma. In order for a delayed rupture to occur, there has to have been a haematoma that could rupture in the first place. Dr. Cobourn testified that delayed splenic rupture is extremely rare when the spleen appears normal on post-trauma CT imaging. His opinion is supported by the literature. To me, the striking feature of the objective evidence is that on March 10 and 11, no subcapsular haematomas were visible on the CT scans. Either they were not there, or, less probably, but with the same legal effect, it was not possible for a prudent physician to see them. [Emphasis added.]

[53] The trial judge then reached this conclusion, at para. 49:

I conclude that Mr Willick, unfortunately, must have suffered another trauma shortly before he died. It need not have been of such a nature that his conditions of employment required him to report it. I also think that, sadly, by March 24 he was beyond help.

[54] Third, I would add that in choosing between the two possible causes of the ruptured subcapsular hematoma available on the evidence, the trial judge’s determination was not “irrational.” Instead, it was a reasonable statement given his finding that there were no visible subcapsular hematomas during Mr. Willick’s stay at the Welland County Hospital and that Mr. Willick experienced new pain and bruising well after the initial trauma.

[55] The appellants also submit that, in determining what would likely have happened to Mr. Willick but for the defendant’s alleged breach, the trial judge’s conclusion that Mr. Willick “was beyond help” on March 24, 2014, is “unacceptably vague.” They argue that the trial judge’s reasons do not clearly address whether, if the respondents had instructed Mr. Willick to remain home, the shorter route to the hospital would have had any effect on his care and thus his likelihood of surviving. But, having determined that neither doctor breached the applicable standard of care, this was not an issue the trial judge needed to address. It was not relevant to liability.

[56] Moreover, the medical literature properly put before the trial judge, to which he referred in his reasons, indicated that people with Mr. Willick’s pre-existing conditions have a high mortality rate in the event of splenic rupture. This suggested that Mr. Willick had a low chance of survival once the rupture occurred, even if he were not far from a hospital. The trial judge was entitled to accept this evidence although it played no role in his liability reasoning.

(4) Did the trial judge’s reasons provide an adequate basis for the appeal?

[57] It is trite law that a meaningful right of appeal “must not be an illusory right,” as it would be if the reasons provided by the judge for their decision were insufficient: R. v. Richardson (1992), 1992 ONCA 7710, 9 O.R. (3d) 194 (C.A.), at para. 13. In R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55, Binnie J. stated that: “The trial judge’s duty is satisfied by reasons which are sufficient to serve the purpose for which the duty is imposed, i.e., a decision which, having regard to the particular circumstances of the case, is reasonably intelligible to the parties and provides the basis for meaningful appellate review of the correctness of the trial judge’s decision.” This is an assessment that the appeal court itself is in the best position to undertake; failing that functional test is an error of law.

[58] The onus is on the appellant to show an actual error or that the reasons frustrate appellate review: R. v. G.F., 2021 SCC 20, 459 D.L.R. (4th) 375, at para. 79. In Farej v. Fellows, 2022 ONCA 254, at para. 46, Doherty J.A. noted that the Supreme Court in G.F. “recently cautioned against appellate courts reviewing trial judge’s reasons with an overly critical eye, especially in cases turning on credibility assessments”: citing G.F., at paras. 74-76. While an appeal court “must be rigorous in its assessment,” merely raising an ambiguity or an uncertainty in the reasons is insufficient to justify appellate intervention; “the appeal court must determine the extent and significance of the ambiguity”: G.F., at para. 79. To generalize this proposition, the flaw in the reasons must render doubtful both the trial judge’s chain of reasoning and the outcome of the case.

[59] Where the reasons are deficient in explaining the result to the parties, and the appeal court does not consider itself able to do so, a new trial may be needed. This is a case-specific assessment. To order a new trial in a civil matter, the court must be satisfied that “the interests of justice plainly require that to be done”: Brochu v. Pond (2002), 2002 ONCA 20883, 62 O.R. (3d) 722 (C.A.), at para. 68. There must be a real prospect “that a substantial wrong or miscarriage of justice has occurred”: Courts of Justice Act, R.S.O. 1990, c. C.43, s. 134(6); Vokes Estate v. Palmer, 2012 ONCA 510, 294 O.A.C. 342, at para. 7; Iannarella v. Corbett, 2015 ONCA 110, 124 O.R. (3d) 523, at para. 23.

[60] In my view, the appellants have not met their onus of showing that the trial judge made an actual error or that his reasons frustrate appellate review, for two reasons. First, the reasons in this case are not perfect, but they are adequate for appellate review, which I was able to undertake in the preceding reasons. [1] Second, the focus of the appellants’ complaint was on the trial judge’s speculation about whether an intervening event caused Mr. Willick’s death. As I have explained, once the trial judge determined that the doctors had not breached their respective standards of care, there was no act or omission on anyone’s part that could, in legal terms, have caused Mr. Willick’s tragic death. That aspect of his reasons was not relevant to the outcome of the case. This asserted flaw in the trial judge’s reasons does not render doubtful his chain of reasoning or the outcome of the case.

V. Disposition

[61] For these reasons, I would dismiss the appeal with costs fixed as agreed in the amount of $25,000, all-inclusive.

Released: November 30, 2023 “M.T.” “P. Lauwers J.A.” “I agree. M. Tulloch C.J.O.” “I agree. B.W. Miller J.A.”

[1] This was a complex and emotionally laden case. Even though these reasons were, once supplemented by the record, adequate for the purposes of appellate review, they were inappropriately terse. The reasons did not treat the appellants’ claim with the dignity it deserved, and one can understand how the appellants would, incorrectly, conclude from the reasons that the trial judge had not taken sufficient care to understand the case. The primary audience for a trial judge to keep in mind is the losing party, who is entitled to be treated with due respect, and to know why the decision was reached and why the proffered evidence and arguments were rejected. See Sir Robert Megarry, V.C., “The Judge” (1983), 13 Man. L.J. 189, at p. 194. See also Robert J. Sharpe, Good Judgment: Making Judicial Decisions (Toronto: University of Toronto Press, 2018), at p. 136.