Doobay, by her Litigation Guardian, Doobay, et al. v. Fu et al.

[Indexed as: Doobay (Litigation Guardian of) v. Fu]

Ontario Reports Ontario Superior Court of Justice Bale J. May 8, 2020 150 O.R. (3d) 616 | 2020 ONSC 1774

Case Summary

Civil procedure — Trial — Jury trial — Parties in medical malpractice action disagreeing over wording of jury questions relating to causation — Defendants proposing "but for" test and asking jury to provide reasons if breach of standard of care found — Plaintiffs proposing to ask whether breach "caused or contributed to" injuries — No reason not to translate "but for" test into everyday language as proposed by plaintiffs — Jury ought not to be asked to give reasons.

Courts — Stare decisis — Parties in medical malpractice action disagreeing over wording of jury questions relating to causation — Defendants proposing "but for" language and arguing that Court of Appeal decision suggesting otherwise was obiter — Reasoning in Court of Appeal decision was clearly intended for guidance and ought to be followed — No reason not to translate "but for" test into everyday language as proposed by plaintiffs.

Torts — Negligence — Causation — Medical malpractice — Parties in medical malpractice action disagreeing over wording of jury questions relating to causation — Defendants proposing "but for" test and asking jury to provide reasons if breach of standard of care found — Plaintiffs proposing to ask whether breach "caused or contributed to" injuries — No reason not to translate "but for" test into everyday language as proposed by plaintiffs — Jury ought not to be asked to give reasons.

The plaintiff D was taken to hospital with symptoms of stroke. The other plaintiffs alleged that she suffered a severe and permanent brain injury because the doctor and nurse who treated her failed to recognize in a timely fashion that she was a candidate for thrombolytic therapy. At trial, an issue arose as to the language used in the jury questions relating to causation, centred around two Court of Appeal decisions. One decision held that there was no compelling reason not to use "but for" language, while the second decision held that the trial judge ought not to have insisted on such language. The defendants argued that the former decision had better reasoning and that the reasoning in the latter decision was obiter . The wording proposed by the defendants was whether the plaintiffs had proven, on a balance of probabilities, that "but for the breach of the standard of care" D's injuries would not have occurred. The defendants' proposal went on to ask the jurors that if there were such proof, they were to provide clear and specific answers as to how the breach caused the injury. The wording proposed by the plaintiffs was whether the plaintiffs had proven, on a balance of probabilities, that the "breach of the standard of care caused or contributed to" D's injuries.

Held, the plaintiffs' position should be accepted.

There was no good reason not to translate the "but for" test into everyday language. The two Court of Appeal decisions were not irreconcilable so there was no reason to choose one over the other. Even if the reasoning in the latter case were obiter it ought to be followed because it was clearly intended for guidance. Further, [page617] the "caused or contributed to" language approved in the latter case was not in issue in the former case. Also, the reasoning was effectively affirmed by another Court of Appeal decision in a judge-alone context.

The jury ought not to be asked to give reasons if they found that D's injuries were caused by the defendants' breach of the standard of care. In order to return a verdict, it was necessary that five members of the jury agree on the answer to each question, and the same five jurors did not have to agree to the answers to all the questions. To ask the jury, whose members had no legal training, to give reasons for finding that a particular defendant's breach caused a plaintiff's injuries may suggest that they must agree on those reasons. To ask each member of the jury to give their own reasons, in the event that they find a particular defendant to have caused the plaintiff's injuries, would be unworkable and risk a violation of the jury's duty of secrecy.

Sacks v. Ross, [2017] O.J. No. 5171, 2017 ONCA 773, 283 A.C.W.S. (3d) 740, 417 D.L.R. (4th) 387, 44 C.C.L.T. (4th) 46 (C.A.), affg [2015] O.J. No. 6980, 2015 ONSC 7238 (S.C.J.) [Leave to appeal to S.C.C. refused [2017] S.C.C.A. No. 491], folld

Cheesman v. Credit Valley Hospital, [2019] O.J. No. 4510, 2019 ONSC 4996, 42 C.P.C. (8th) 350 (S.C.J.); Cheung v. Samra, [2018] O.J. No 3338, 2018 ONSC 3480, 23 C.P.C. (8th) 240 (S.C.J.); Parliament v. Conley, [2019] O.J. No. 3745, 2019 ONSC 3996, 2019 CHFL para. 15,867 (S.C.J.); Surujdeo v. Melady, [2017] O.J. No. 242, 2017 ONCA 41, 274 A.C.W.S. (3d) 780, 410 D.L.R. (4th) 538 (C.A.); Uribe v. Tsandelis, [2019] O.J. No. 5589, 2019 ONSC 6242 (S.C.J.), consd

Other cases referred to

Clements v. Clements, [2012] 2 S.C.R. 181, [2012] S.C.J. No. 32, 2012 SCC 32, 346 D.L.R. (4th) 577, 431 N.R. 198, [2012] 7 W.W.R. 217, J.E. 2012-1292, 331 B.C.A.C. 1, 31 B.C.L.R. (5th) 1, 93 C.C.L.T. (3d) 1, [2012] I.L.R. para. M-2610, 29 M.V.R. (6th) 1, 215 A.C.W.S. (3d) 1035, 2012EXP-2458; Dunning v. Royal Bank of Canada, , [1996] O.J. No. 5078, 23 C.C.E.L. (2d) 71 (Gen. Div.); Poonwasee v. Plaza, [2018] O.J. No. 3309, 2018 ONSC 3797, 27 C.P.C. (8th) 330, 293 A.C.W.S. (3d) 737, 31 M.V.R. (7th) 79, 49 C.C.L.T. (4th) 108 (C.A.); R. v. Henry, [2005] 3 S.C.R. 609, [2005] S.C.J. No. 76, 2005 SCC 76, 260 D.L.R. (4th) 411, 342 N.R. 259, [2006] 4 W.W.R. 605, J.E. 2006-62, 376 A.R. 1, 219 B.C.A.C. 1, 49 B.C.L.R. (4th) 1, 202 C.C.C. (3d) 449, 33 C.R. (6th) 215, 136 C.R.R. (2d) 121, 67 W.C.B. (2d) 809, EYB 2005-98899, JCPQ 2006 -5; R. v. Hummel (1987), , 60 O.R. (2d) 545, [1987] O.J. No. 763, 36 C.C.C. (3d) 8, 60 C.R. (3d) 78, 1 M.V.R. (2d) 4, 2 W.C.B. (2d) 400 (H.C.J.); R. v. Millar, [2012] O.J. No. 1276, 2012 ONSC 1809, 285 C.C.C. (3d) 208, 101 W.C.B. (2d) 40; White v. St Joseph's Hospital (Hamilton), [2019] O.J. No. 2101, 2019 ONCA 312, 2019 CHFL para. 15,860 (C.A.)

Authorities referred to

Fuerst, Michelle, and Mary Anne Sanderson, Ontario Courtroom Procedure, 4th ed. (Markham, Ont.: LexisNexis, 2012)

Power, Jennifer, Ronald Skolrood, Lisa Warren, CIVJI: Civil Jury Instructions, looseleaf (February 2020 update), 2nd ed. (Vancouver: Continuing Legal Education Society of British Columbia, 2009)

Watt, David, Helping Jurors Understand (Toronto: Carswell, 2007)

RULING as to the wording of causation questions put to a jury.

Duncan Embury, Pinta Maguire and Brandyn DiDomenico, for plaintiffs. [page618] Anne Spafford, Adam Patenaude and Alec Yarascavitch, for Dr. Fu and Dr. Bryer. Heather Vaughan and Zahira Shawkat, for Mira Tom and K&S Temporary Medical Services Inc. Anna Marrison and Henry Ngan, for Mackenzie Health.

S.T. BALE J. : —

Overview

[1] In this medical malpractice case, the parties engaged in the usual debate over the language to be used in the jury questions relating to causation.

[2] The plaintiffs' position was that the jury should be asked, in relation to each defendant found to have breached the applicable standard of care:

Have the plaintiffs proven, on a balance of probabilities, that [defendant]'s breach of the standard of care caused or contributed to the injuries of Carmen Doobay?

[3] The defendants' position was that the jury should be asked, in relation to each defendant found to have breached the applicable standard of care:

Have the plaintiffs proven, on a balance of probabilities, that but for the breach of the standard of care by [defendant], the injuries of Ms. Doobay would not have occurred?

If yes, how did the breach of the standard of care cause Ms. Doobay's injuries? Please provide clear and specific answers.

[4] For the reasons that follow, the causation questions put to the jury were [as follows]:

Have the plaintiffs satisfied you, on a balance of probabilities, that [defendant]'s breach of the standard of care caused or contributed to the injuries of Carmen Doobay?

Background Facts

[5] In April 2011, Carmen Doobay began to experience symptoms of a stroke, and was taken to Mackenzie Health by ambulance where she was assessed by Dr. Fu and Mira Tom, a registered nurse. The plaintiffs allege that Dr. Fu and Ms. Tom failed to recognize, within the available window of opportunity, that she was a candidate for thrombolytic therapy, specifically tPA, and that as a result, she suffered a severe and permanent brain injury. The position of the defendants is that the applicable standards of care were not breached, that Mrs. Doobay was not a candidate for tPA, and [page619] that even if she had been treated with tPA, it is unlikely that her injuries would have been avoided.

Issues

[6] The differing versions of the proposed jury questions raise two main issues: (1) the language to be used in the causation questions: "caused or contributed to" or "but for"; and (2) whether, if they found a defendant to have breached the applicable standard of care, the jury should be asked to give reasons for such findings.

The language to be used in the causation questions

[7] In Surujdeo v. Melady, [2017] O.J. No. 242, 2017 ONCA 41 (C.A.), the causation question put to the jury by the trial judge was [at para. 90]: "[H]as the plaintiff established on a balance of probabilities that [the doctor's] breach of the standard of care was a cause of Rossana Surujdeo's death?" On appeal, the court held that the trial judge had erred in law by approving jury questions that did not reflect the applicable "but for" causation test. In doing so, the court adopted the analysis of D. Wilson J. in Sacks v. Ross, [2015] O.J. No. 6980, 2015 ONSC 7238 (S.C.J.), at paras. 13, 15 and 16, in which she referred to the test for causation set out in Clements v. Clements, [2012] 2 S.C.R. 181, [2012] S.C.J. No. 32, 2012 SCC 32, and held that there was no compelling reason not to use the "but for" language in the jury questions relating to causation.

[8] In Sacks v. Ross, [2017] O.J. No. 5171, 2017 ONCA 773 (C.A.), leave to appeal to S.C.C. refused [2017] S.C.C.A. No. 491, Lauwers J.A. writing for the court concluded, at para. 8, that the jury questions and instructions employed in that case were "problematic", and, at para. 122, that "the trial judge should not have rejected the use of the phrase 'caused or contributed to' in the formulation of the jury questions and the instructions, and instead to have insisted on the language from Clements".

[9] The defendants posit the present case as a choice between following Surujdeo and following Sacks. They argue that I should follow Surujdeo because, in their view, it is a better-reasoned decision. They submit that the reasoning in Sacks was obiter dicta, and that I am not bound to follow it. They say that using "caused or contributed to" is likely to confuse the jury, because it does not make clear that the cause must be a "necessary cause". I disagree.

[10] Where previous decisions of an appellate court are irreconcilable, it is open to trial judges to decide which of the decisions to follow: R. v. Hummel (1987), , 60 O.R. (2d) 545, [1987] O.J. No. 763, 36 C.C.C. (3d) 8 (H.C.J.), at para. 10; Dunning v. Royal Bank of Canada, , [1996] O.J. No. 5078 (Gen. Div.), at paras. 61-65; and [page620] R. v. Millar, [2012] O.J. No. 1276, 2012 ONSC 1809 (S.C.J.), at para. 28.

[11] In the present case, the defendants argue that the decisions in Surujdeo and Sacks are irreconcilable and invite me to find that Surujdeo is the better-reasoned decision. However, as I do not find the two decisions to be irreconcilable, it is not necessary for me to do so.

[12] The defendants argue that the Court of Appeal decision in Sacks was obiter because, although the court found the jury questions and instructions to be problematic, it dismissed the appeal, finding that the deficiencies did not affect the outcome of the trial. I note, however, that Surujdeo and Sacks cannot be distinguished on that basis -- in Surujdeo, at para. 100, as in Sacks, the court dismissed the appeal, finding that "the incorrect language in the jury questions would not have misled [the jury]".

[13] In my view, even if the reasoning of the Court of Appeal in Sacks is obiter, this court should follow it, for the following reasons.

[14] First, there is obiter, and then there is obiter. In R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, [2005] S.C.J. No. 76, Binnie J., writing for a unanimous court, put it this way, at para. 57:

All obiter do not have, and are not intended to have, the same weight. The weight decreases as one moves from the dispositive ratio decidendi to a wider circle of analysis which is obviously intended for guidance and which should be accepted as authoritative. Beyond that, there will be commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not "binding"[.]

[15] In the present case, Lauwer J.A.'s analysis of causation jury questions was clearly intended for guidance and should therefore be accepted as authoritative. At para. 11, he said:

[C]ases that engage jury questions, jury instructions and the causation test involving multiple tortfeasors do not often come to this court. In my view, this court has a responsibility to consider the issues and to provide assistance to trial judges and counsel in such cases going forward.

[16] Second, although the Sacks trial judge's analysis was approved by the Court of Appeal in Surujdeo, the correctness of the trial judge's ruling in Sacks was not before the court in Surujdeo.

[17] Third, the "caused or contributed to" language in issue in the present case, and approved by the Court of Appeal in Sacks, was not in issue in Surjudeo.

[18] Fourth, the Sacks reasoning on this issue was effectively affirmed by the Court of Appeal (albeit in a judge-alone context) in White v. St. Joseph's Hospital (Hamilton), [2019] O.J. No. 2101, 2019 ONCA 312 (C.A.), at para. 25, where the court said: [page621]

In an action for delayed medical diagnosis and treatment, a plaintiff must establish that the delay caused or contributed to the unfavourable outcome: Sacks v. Ross, at para. 117; Beldycki Estate v. Jaipargas, at para. 44. The phrase "caused or contributed" originates in the Negligence Act, and is the normative test applied by this court, as set out in Sacks v. Ross, at para. 117, and embodied in the "but for" test prescribed by the Supreme Court in Clements v. Clements, at para. 8.

(Citations omitted)

[19] The defendants argue that the phrase "caused or contributed to" is likely to confuse juries. However, in Sacks, at para. 122, Lauwers J.A. comes to the opposite conclusion: "There is nothing innately confusing about the phrase "caused or contributed to." I agree.

[20] The defendants argue that using "caused or contributed to" does not make sufficiently clear that a cause must be a "necessary cause". However, they do not give an example of how, on the facts of this case, a defendant could be found to have caused or contributed to Mrs. Doobay's injuries by other than a necessary cause.

[21] The defendants refer to four reported decisions of this court since Sacks. "But for" language was used in the causation questions in Cheung v. Samra, [2018] O.J. No. 3338, 2018 ONSC 3480 (S.C.J.) and Uribe v. Tsandelis, [2019] O.J. No.5589, 2019 ONSC 6242 (S.C.J.). "Caused or contributed to" was used in those questions in Parliament v. Conley, [2019] O.J. No. 3745, 2019 ONSC 3996 (S.C.J.) and Cheesman v. Credit Valley Hospital, [2019] O.J. No. 4510, 2019 ONSC 4996 (S.C.J.). They submit that Cheung and Uribe were correctly decided and should be followed, and that Parliament and Cheesman were wrongly decided, because they did not consider Surujdeo. I disagree.

[22] In Cheung, the parties agreed, after some discussion, that the causation questions should use "but for" rather than "caused or contributed to". At para. 44, the trial judge distinguished Sacks saying:

The instant case is not one where there are multiple defendants involved, multiple potential causes and cumulative injuries, as discussed by the Court of Appeal in Sacks v. Ross. Counsel agreed that Dr. Samra and Dr. Ma each played separate rolls in their treatment of Carol. Dr. Samra was her treating obstetrician and the allegations again him were different than those asserted against Dr. Ma, who was the on call obstetrician when Carol was at the hospital on April 21 and 22, 2006.

[23] Similarly, in Uribe v. Tsandelis, supra, at paras. 15 ff, the trial judge analyzed the parties' positions and concluded that the allegations against the doctor and those against the hospital were based upon "discrete and separate factual situations", that using a "but for" causation question would not confuse the jury and that "the helpful comments of Lauwers J.A. and the Court of Appeal [in [page622] Sacks] were made in obiter, and clearly intended to assist trial judges in appropriate cases -- this is not one of them". In that case, there was a Pierringer agreement. The only defendant who participated in the trial was the non-settling defendant. The facts upon which the allegations against the two sets of defendants were based occurred at different times. Although the plaintiff had the onus of proving the case against the non-settling defendant, the onus was on him, if he were found liable, to prove the negligence of the settling defendants.

[24] In the present case, the claims against the physicians, the hospital, and the agency nurse were not based upon discrete factual situations. The plaintiffs allege that the injuries occurred as a result not only of the defendants' individual breaches, but also of their failure to work together as a team.

[25] Carmen Doobay suffered a stroke. All the injuries she suffered were a result of that stroke. To ask the jury, "whether the plaintiffs have proven that but for a defendant's breach, the injuries would not have occurred" would have a significant potential to confuse them. The defendants' answer, namely, that the jury can be instructed in the charge that a defendant may be held liable for contributing to the injuries, is not, in my view, a satisfactory answer. The point at which the jury members are asking themselves and answering the questions is critical. I see no good reason not to translate the "but for" test into everyday language.

Whether, if they found a defendant's breach caused Mrs. Doobay's injuries, the jury should be asked to give reasons for such findings

[26] The defendants submit that if the jury finds a defendant's breach of the applicable standard of care to have caused Mrs. Doobay's injuries, they should be asked: "How did the breach of the standard of care cause [those] injuries? Please provide clear and specific answers." I disagree, for the following reasons.

[27] In support of their position, the defendants rely primarily on the trial decisions in Sacks, at paras. 17 ff; and Cheeseman v. Credit Valley Hospital, supra, at para. 73. In Sacks, the trial judge found the medical issues to be complex and held that the jury should be required to provide answers to ensure that they understood and applied her instructions. In Cheesman, the trial judge held that requiring brief reasons is desirable, because it [at para. 73] "keeps jurors focused on the need for a rational analysis and diminishes the risk of verdicts being drive by sympathy or irrational analysis".

[28] In Poonwasee v. Plaza, [2018] O.J. No. 3309, 2018 ONSC 3797 (S.C.J.), at paras. 25-27, the trial judge held that there were [page623] advantages and disadvantages of requesting a jury to provide particulars, and that in exercising discretion in any given case, the trial judge "should consider whether the advantages of asking the jury outweigh the disadvantages. This will depend on the circumstances of the case".

[29] While not discussing the issue in any detail, the jury questions suggested by Lauwers J.A. in Sacks do not include a question requiring the jury to give reasons for finding that a defendant's breach caused the plaintiff's injuries.

[30] On this issue, I endorse the following statement from Jennifer Power, Ronald Skolrood and Lisa Warren, CIVJI: Civil Jury Instructions, looseleaf (February 2020 update), 2nd ed. (Vancouver: The Continuing Legal Education Society of British Columbia, 2009), Appendix C, note 2: 1

A jury is supposed to return a verdict and not give reasons, since it is not legally trained to do so. As well, each juror is entitled to reach a verdict based upon his or her own findings of fact which ultimately go into a decision on the final issue. As long as the jury is unanimous in its finding with respect to a particular issue, it does not matter how each juror came to that conclusion: Bushell's Case (1682), Vaughan 135, as mentioned in Balfour v. Toronto Railway Company (1901), , 5 O.L.R. 735 at 737 (C.A.) (affirmed (1902), 32 S.C.R. 239).

[31] In order to return a verdict, it is only necessary that five members of the jury agree on the answer to each question, and the same five jurors do not have to agree to the answers to all the questions. In addition, the required five jurors on each question may each take a separate path to their answers. Each may take a different view of the evidence and make different findings of fact. To ask the jury to give reasons for finding that a particular defendant's breach caused a plaintiff's injuries may suggest that they must agree on those reasons. To ask each member of the jury to give their own reasons, in the event that they find a particular defendant to have caused the plaintiff's injuries, would be unworkable and risk a violation of the jury's duty of secrecy.

[32] Jurors have no legal training. They bring a different set of skills to the job. In making their decisions, they rely upon their life experience and common sense. If required to give reasons, they [page624] may find it difficult to express themselves fluently and coherently. Such difficulty would be compounded in cases where individual jurors reached the same verdicts, but for different reasons. Requiring jurors to give reasons and then parsing those reasons may lead to unnecessary challenges to jury verdicts where the real problem lies in an inability to properly articulate those reasons. 2

[33] There are many ways in which trial judges can help ensure a just verdict by helping jurors to better understand what is required of them. 3 In my view, asking them to provide reasons for their verdicts is not one of them.

Disposition

[34] For the reasons given, the jurors were asked whether the breach of duty by a particular defendant caused or contributed to Mrs. Doobay's injuries and were not required to give reasons for their verdicts.

Questions worded according to plaintiffs' preference.

Notes

1 Cited with approval in Michelle Fuerst and Mary Anne Sanderson, Ontario Courtroom Procedure, 4th ed. (Markham, Ont.: LexisNexis, 2012), Chapter 48(C)1(a) Questions for the Jury: "Negligence cases are an exception to the general rule, and the jury is asked to state the particulars of the defendant's negligent conduct. Otherwise, the questions should not require the jury to give reasons for their verdict (citation omitted)."

2 In Cheung v. Samra, supra, the trial judge, in ordering a new trial, found [at para. 80] that "the answers of the jury on causation do not explain the causal link between the negligence and the brain damage; they make no reference to the vast amount of expert evidence on such matters as the normal imaging following Rhonda's birth, the normal cord gases at birth, the state of the placenta, or the onset and effect of the seizures that commenced in July 2006". It being difficult enough for a trial judge to articulate such reasons, is this asking too much of a jury?

3 See, for example, David Watt, Helping Jurors Understand (Toronto: Carswell, 2007).

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