DATE: 20000925

DOCKET: C31461

COURT OF APPEAL FOR ONTARIO

RE: SEETAJEE MATHURA, THANDRA DEVI MATHURA, SHIV S. MATHURA and DEONAUTH MATHURA (Appellant in Appeal/Respondent in Cross-Appeal) v. SCARBOROUGH GENERAL HOSPITAL and ZEVI SHAINHOUSE (Respondent in Appeal/Appellant in Cross-Appeal)

BEFORE: FINLAYSON, DOHERTY and BORINS JJ.A.

COUNSEL: Stuart Forbes

for the appellant

Catherine M. Patterson and Sally Bryant

for the respondent

HEARD: September 19, 2000

On appeal from the judgment of Madam Justice Lynda C. Templeton dated January 4, 1999.

E N D O R S E M E N T

[1] It was incumbent on the appellant to establish that the defendant’s acts of negligence materially contributed to the death of her husband. The mere fact that the evidence left the trial judge uncertain as to the medical cause of death is no reason to transfer the burden of proof on the issue of causation to the defendant. The trial judge had to determine whether the plaintiff had established a sufficient causal link between the acts of negligence and the cause of death on the entirety of the evidence, including the evidence which left her uncertain as to the medical cause of death.

[1] The trial judge’s findings of fact are fully supported by the evidence and, in our view, there is no error in her conclusion that the plaintiff had failed to establish that causal link.

[2] There is no merit to the appellant’s alternate submission that the trial judge’s finding that the medical cause of death could not be determined required the trial judge to reopen the trial to permit the appellant to lead further evidence on the issue of the medical cause of death. In coming to her conclusion, the trial judge accepted the appellant’s argument on this point and put the appellant in a somewhat better position than she would have been had the trial judge accepted the defence theory as to the medical cause of death. Counsel at trial did not ask the trial judge to reopen the trial, no doubt because her finding that the medical cause of death could not be identified favoured the position taken by the appellant. Nothing has been put before us to suggest that further or better evidence as to the medical cause of death would be available were we to order a new trial. There is no basis upon which a new trial can be ordered.

[3] The appeal must be dismissed with costs.

“G.D. Finlayson J.A.”

“Doherty J.A.”

“S. Borins J.A.”