Marchand, a minor by his litigation guardian Marchand v. The Public General Hospital Society of Chatham et al. [Indexed as: Marchand (Litigation guardian of) v. Public General Hospital Society of Chatham]

51 O.R. (3d) 97

[2000] O.J. No. 4428

Docket No. C25915

Court of Appeal for Ontario

Laskin, Goudge and Sharpe JJ.A.

November 27, 2000

• Application for leave to appeal to the Supreme Court of Canada was dismissed September 27, 2001 (Gonthier, Major and Binnie JJ.). S.C.C. File No. 28379. S.C.C. Bulletin, 2001, p. 1685.

Courts -- Judges -- Bias -- Reasonable apprehension of bias -- Conduct of trial -- Plaintiffs appealing dismissal of action -- Plaintiffs arguing that trial judge's failure to restrain unprofessional and uncivil conduct by defence counsel establishing unfair trial and reasonable apprehension of bias -- Informed and reasonable observer looking realistically at trial would not have apprehended bias or unfair adjudication.

Evidence -- Use of discovery evidence at trial -- Correcting answers given on examination for discovery -- Difference between formal and informal admissions.

Evidence -- Experts -- Expert's reports -- Evidentiary rulings at trial -- Experts may not testify about new matters not touched on in expert's report delivered before trial -- Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 31.09, 53.03(1).

Evidence -- Experts -- Expert's reports -- Hearsay evidence -- Foundational facts -- Proof of foundational facts for expert's opinion normally going to weight and not admissibility of evidence -- Trial judge, however, not erring in ruling that expert's opinion lacking probative value where party's undertaking to prove foundational facts not satisfied.

The plaintiff JM was delivered by a Caesarean section performed on his mother, the plaintiff BM, by the defendant Dr. A at the defendant The Public General Hospital Society of Chatham ("the Hospital"). JM was born profoundly disabled. He and his parents sued Dr. A, the Hospital and three nurses for negligence. After a 165-day trial marked by rancour and hostility between counsel for the parties, the plaintiffs' action was dismissed. The plaintiffs appealed on the grounds that: (1) Granger J., the trial judge, erred in failing to find that the defendants were negligent in not properly monitoring BM and for not delivering JM earlier; (2) they did not receive a fair trial because of the trial judge's erroneous and one- sided evidentiary rulings; and (3) in failing to restrain the conduct of defence counsel, the trial judge's conduct of the trial raised a reasonable apprehension of bias.

Held, the appeal should be dismissed without costs, but the trial judgment should be varied to take account of the defendants' undertaking not to pursue the cost of the trial.

There was ample evidence to support the finding that the injuries were not caused by any act or omission of the defendants but were caused by a sudden rupture of the placenta resulting in cataclysmic oxygen deprivation. The evidentiary rulings did not support the plaintiffs' contention that they were denied the opportunity to fairly present their case, nor did these rulings create a reasonable apprehension of bias. The rulings reflected a sincere and diligent effort to conduct a fair trial. Virtually all the rulings were correct. The few errors were inconsequential and, even viewed cumulatively, did not result in any significant prejudice. Reviewing each impugned evidentiary ruling individually, this appeal failed because: (1) The trial judge did not err in ruling that Dr. Fields, an expert witness called by the plaintiffs, could not be questioned about bradycardia (abnormally slow heart rate) because testimony about this topic was contrary to rule 53.03(1) of the Rules of Civil Procedure, which requires a party to serve an expert's report setting out the "substance" of the expert's proposed testimony. The "substance" requirement must be determined in light of the purpose of the rule, which is to facilitate trial preparation by providing opposing parties with adequate notice of opinion evidence to be adduced at trial. An expert may not testify about matters that open up a new field not touched upon by the report. In any event, even if the trial judge erred in his interpretation of rule 53.03, there was no prejudice because the evidence about bradycardia went to causation and Dr. Fields was not qualified to give expert evidence about causation. (2) In light of his ruling about the substance of Dr. Fields' report, the trial judge did not act improperly in refusing the plaintiffs' request for an adjournment, and this denial did not cause any injustice. (3) The trial judge did not err in denying leave to permit Dr. Silver, an expert witness who had been called by the plaintiffs, to testify about matters in a second report that described a new theory of causation. Had this testimony been admitted, the defendants' right to a full and fair defence would have been impaired because they would have been denied the right to cross-examine Dr. Manning, an expert already called by the plaintiffs. Re-calling Dr. Manning would have resulted in undue delay. (4) The trial judge did not err in ruling that the evidence of Ms. Kelly, a home care expert, and of Ms. Staub, an expert about future care costs, lacked probative value, when with respect to the foundational facts underlying their respective opinions, these witnesses intended to rely on videos filed at trial rather than the medical reports referred to in their written reports. In having these witnesses proceed in this way, the plaintiffs were in breach of an undertaking and were refusing to provide the factual foundation of the opinions. Although normally proof of foundational facts goes to the weight and not the admissibility of the opinion, it was open to the trial judge to conclude that the observations and conclusions could not be established in any way other than by adducing the medical reports containing those observations and conclusions. (5) The trial judge did not err in allowing Dr. A to correct his discovery evidence that JM showed oligohydramnios at birth. Dr. A's discovery answer was not a formal admission, which cannot be withdrawn except by leave of the court or the consent of the party in whose favour it was made, and it was always open to explain his answer in testimony. Although under rule 31.09, a party shall forthwith advise that the answer to a question was incorrect, the impact of corrections is a matter to be decided by the trial judge and the combined effect of rules 31.09 and 53.08 is that a trial judge must grant leave to introduce the evidence unless to do so would cause prejudice that could not be overcome by an adjournment or costs. (6) The trial judge did not err in restricting the cross-examinations of certain defendants to preclude opinio evidence about the conduct of other defendants. The impugned questioning went beyond the witnesses' involvement in the events of the case. (7) Although the trial judge did err in his ruling about the plaintiffs' cross-examination of the defendant Colebrook by ruling that the plaintiffs were precluded from contradicting her on her discovery evidence that they had themselves had read into the record, no prejudice flowed from that ruling. (8) There was no basis to interfere with the trial judge's ruling prohibiting the use of demonstrative evidence, which is a matter of discretion. (9) In view of the pleadings, there was an adversity of interest between the co-defendants, and the trial judge correctly ruled that Dr. A had a right to cross-examine a witness called by the co-defendants. (10) There was no merit in the submissions that the trial judge erred or was inconsistent in his rulings favouring the defendants with respect to the evidence of Drs. Tithecott, Smith and Eyman.

The trial judge's conduct of the trial did not raise a reasonable apprehension of judicial bias. The most serious of six categories of alleged judicial misconduct was that the trial judge refused to restrain defence counsel's repeated attacks on plaintiffs' counsel's integrity and competence, which attacks included repeated accusations of manipulating evidence; of deliberately misinforming witnesses and feeding them answers; of deliberately flouting, subverting and ignoring the rules of practice; and of showing contempt for the trial judge and his rulings. The record supported the plaintiffs' contentions and showed that the degree of trust between counsel had vanished, replaced by a level of rancour and hostility, rarely, if ever, seen in an Ontario courtroom. Although the conduct was not all one-sided, defence counsel was mostly responsible for conduct that by any reasonable standards of civility was unacceptable for any counsel, let alone senior counsel. That the conduct was unacceptable was candidly ackn owledged. The issue for the appeal, however, was what impact this conduct had on the fairness of the trial. The question was whether an informed person viewing the matter realistically would conclude that the way the trial judge dealt with defence counsel attacks on plaintiffs' counsel created a reasonable apprehension of bias and thus deprived the plaintiffs of a fair trial. The answer to this question was negative. First, the trial judge did not remain silent. Second, the failure of the trial judge to do more to restrain defence counsel does not automatically indicate judicial bias. Nothing in the record or in the trial judge's reasons suggested that he condoned the conduct or lent the weight of his office to the defence position. An informed and reasonable observer looking realistically at the trial unfolding would not apprehend bias or unfair adjudication. Third, and admittedly less importantly, most of the attacks occurred during motions and not during the presentation of evidence.

Turning to the other categories of alleged judicial misconduct, while several examples of defence counsel's treatment of the plaintiff BM showed counsel in an unflattering light, none of the examples suggested judicial bias. In making interventions, the trial judge did not act improperly so as to prevent the plaintiffs from fairly presenting their case. There was no merit in the suggestion of misconduct because the trial judge spoke to defence counsel in the absence of plaintiffs' counsel about scheduling. There was nothing in the trial judge's remarks to substantiate the allegation that he unfairly criticized plaintiffs' counsel and there was nothing inappropriate in his reasons for judgment that showed antipathy to the plaintiff BM. Finally, the totality of the plaintiffs' complaints did not establish a reasonable apprehension of bias.

APPEAL from a judgment dismissing an action for negligence against a doctor, three nurses and a hospital.

Cases referred to Auto Workers' Village (St. Catherines) Ltd. v. Blaney, McMurtry, Stapells, Friedman (1997), 14 C.P.C. (4th) 152 (Ont. Gen. Div.); Bachalo v. Robson (1995), 1995 16399 (MB QB), 101 Man. R. (2d) 316, 35 C.P.C. (3d) 230 (Q.B.); Burke v. Gauthier (1987), 24 C.P.C. (2d) 281 (Ont. H.C.J.); Capital Distributing Co. v. Blakey (1997), 1997 12173 (ON SC), 33 O.R. (3d) 58, 147 D.L.R. (4th) 372, 10 C.P.C. (4th) 109 (Gen. Div.); Christoyiannis (Litigation guardian of) v. Benoit, [1998] O.J. No. 5200 (Gen. Div.); Collins v. Belgian Dry Cleaners, Dyers and Furriers Ltd., 1951 187 (SK CA), [1952] 1 D.L.R. 712, 4 W.W.R. (N.S.) 241 (Sask. C.A.); Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716, 9 N.R. 115; Draper v. Jacklyn, 1969 6 (SCC), [1970] S.C.R. 92, 9 D.L.R. (3d) 264; Graat v. R., 1982 33 (SCC), [1982] 2 S.C.R. 819, 144 D.L.R. (3d) 267, 45 N.R. 451, 2 C.C.C. (3d) 365, 31 C.R. (3d) 289, 18 M.V.R. 287 (sub nom. R. v. Gratt); Iler v. Beaudet 1971 584 (ON SC), [1971] 3 O.R. 644 (Co. Ct.); Machado v. Pratt & Whitney Canada Inc. (1993), 17 C.P.C. (3d) 340 (Ont. Master); Majcenic v. Natale, 1967 267 (ON CA), [1968] 1 O.R. 189, 66 D.L.R. (2d) 50 (C.A.); McEachrane v. Children's Aid Society of Essex (County) (1986), 10 C.P.C. (2d) 265 (Ont. H.C.J.); Ollet v. Bristol Aerojet Ltd., [1979] 3 All E.R. 544 (Q.B.); Quantrill v. Alcan-Colony Contracting Co. (1978), 1978 1310 (ON CA), 18 O.R. (2d) 333 (C.A.); R. v. Abbey, 1982 25 (SCC), [1982] 2 S.C.R. 24, 39 B.C.L.R. 201, 138 D.L.R. (3d) 202, 43 N.R. 30, [1983] 1 W.W.R. 251, 68 C.C.C. (2d) 394, 29 C.R. (3d) 193; R. v. Grosse (1996), 1996 6643 (ON CA), 29 O.R. (3d) 785, 107 C.C.C. (3d) 97, 19 M.V.R. (3d) 197 (C.A.) [Leave to appeal to S.C.C. refused (1997), 209 N.R. 400n]; R. v. Lavallee, 1990 95 (SCC), [1990] 1 S.C.R. 852, 67 Man. R. (2d) 1, 108 N.R. 321, [1990] 4 W.W.R. 1, 55 C.C.C. (3d) 97, 76 C.R. (3d) 329; R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, 161 N.S.R. (2d) 241, 151 D.L.R. (4th) 193, 218 N.R. 1, 477 A.P.R. 241, 118 C.C.C. (3d) 353, 10 C.R. (5th) 1; R. v. Scardino (1991), 1991 13919 (ON CA), 46 O.A.C. 209, 6 C.R. (4th) 146 (C.A.); Shipman v. Antoniadis (1975), 1975 699 (ON CA), 8 O.R. (2d) 449, 58 D.L.R. (3d) 321 (C.A.); Thorogood v. Bowden (1978), 1978 1367 (ON CA), 21 O.R. (2d) 385, 89 D.L.R. (3d) 604 (C.A.); Wade v. Sisters of Saint Joseph of the Diocese of London (1976), 2 C.P.C. 37 (Ont. H.C.J.) Statutes referred to Evidence Act, R.S.O. 1990, c. E.23, s. 52, as am. by S.O. 1998, c. 18, Sch. G, s. 50 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 31.07, 31.09, 31.11, 51.05, 53.03, 53.08 Rules of Professional Conduct, Rule 10 Authorities referred to Holmested and Gale, Ontario Judicature Act and Rules of Practice (Scarborough, Ont.: Carswell, 1983), p. 1767 Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999), pp. 940, 1051-53 Watson and Perkins, Holmested and Watson: Ontario Civil Procedure (Toronto: Carswell, 1984), 3125, 3126

Barry A. Percival, Q.C., Martin Wunder, Q.C., and Ronald D. Davis, for appellants. Joshua Liswood and Kathryn M. Frelick, for respondents, The Public General Hospital Society of Chatham, A. Olson, P. Colebrook and M. Want. W. Niels F. Ortved and J. Thomas Curry, for respondent, G. Asher.

[1] BY THE COURT: -- In July 1990, Barbra and Allen Marchand were expecting their first child. Barbra's pregnancy had been relatively uneventful. However, by July 10 she was 16 days beyond her due date and her obstetrician, Dr. G. Asher, arranged for her to be induced the next day at the Public General Hospital in Chatham.

[2] Mrs. Marchand was admitted to the Hospital at 1:05 a.m. on July 11. At 8:32 that morning her son Joel was delivered by emergency Caesarean section performed by Dr. Asher.

[3] Tragically, Joel was born profoundly disabled. He suffered asphyxia as a fetus with the result that the cells in the cortex of his brain were destroyed. He cannot walk or talk and will be entirely dependent on others for his care throughout his life.

[4] In this action Joel and his parents sued Dr. Asher, the Hospital and three of the Hospital nurses, claiming that their negligence caused Joel's condition.

[5] The trial began on October 18, 1993. It was anticipated to run for six to eight weeks. In the end it took 165 court days to complete. The trial was characterized by an extraordinary level of rancour and hostility on the part of counsel, all of whom were, regrettably, senior members of the bar of Ontario. It was not a trial of which the administration of justice can be proud.

[6] On October 7, 1996, Granger J. released his reasons for judgment dismissing the action. This is the appeal by Joel and his parents from that decision.

[7] The appellants make three broad attacks on the trial judgment.

[8] First, the appellants argue that the trial judge erred in declining to find that the respondents were negligent in not properly monitoring Mrs. Marchand's pregnancy and in not delivering Joel earlier.

[9] Second, the appellants argue that they did not receive a fair trial because of the erroneous and one-sided evidentiary rulings made by the trial judge.

[10] Third, the appellants argue that the trial judge's conduct of the trial raised a reasonable apprehension of bias towards them. They submit that the trial judge failed to restrain or control the unprofessional conduct of defence counsel throughout the entire trial.

[11] We will deal with each of these issues in turn.

I. WERE THE RESPONDENTS NEGLIGENT?

[12] In this court the appellants relied on a series of acts and omissions by Dr. Asher and the Hospital nurses, which they argued were negligent and which they claimed led to Joel's tragedy. These acts and omissions all relate to the final stages of Mrs. Marchand's pregnancy as it stretched beyond her due date into its forty-first and forty-second weeks.

[13] The appellants described the four components of this "cumulative negligence" as follows:

(a) failing to instruct Mrs. Marchand about the importance of fetal kick count as an indicator of fetal health;

(b) improperly administering and interpreting the non-stress test given to Mrs. Marchand on July 5;

(c) thereafter failing to retest, monitor, or induce Mrs. Marchand; and

(d) failing to attach a fetal heart monitor once Mrs. Marchand was admitted to the hospital on July 11.

[14] At trial, Granger J. considered and rejected each of these arguments.

[15] The appellants also challenge the finding made by the trial judge that the tragedy which befell Joel was caused not by any act or omission of the respondents, but by a sudden abruption or rupture of the placenta pulling away from the uterine wall. The trial judge found that this began without warning at about 7:40 a.m. on July 11, resulting in cataclysmic oxygen deprivation to Joel's brain before his birth some 50 minutes later. On appeal the appellants raised no allegations of negligence relating to the treatment of Joel from 7:40 a.m. onwards.

[16] We did not find it necessary to call on the respondents to respond to any of these arguments. There was ample evidence before the trial judge to support both his finding that none of the acts of negligence had been established and his determination of the cause of the tragedy that befell Joel. Nonetheless, we will briefly review each of the arguments.

1. Allegations of "Cumulative Negligence"

[17] First, the appellants allege that Dr. Asher was negligent in failing to advise Mrs. Marchand of the significance of reduced fetal movement as her pregnancy went beyond term. However, the trial judge found as a fact that Dr. Asher did indeed have a complete discussion with her concerning fetal movement. Equally important, the trial judge found that Mrs. Marchand reported no significant reduction in fetal movement to Dr. Asher and that any reduction she experienced was a natural consequence of the fetus entering the birth canal and therefore of no moment. These findings are amply supported in the evidence and ought not to be disturbed.

[18] Second, the appellants allege negligence in connection with the non-stress test ("NST") administered to Mrs. Marchand on July 5 to determine the health of her fetus. They say that Nurse Olson was negligent in administering the NST and in interpreting the results to show a healthy fetus, and that Dr. Asher was negligent in failing to review the results himself or failing to have them reviewed by another professional.

[19] Again, however, the findings of the trial judge are to the contrary and are well founded in the evidence. He found that Nurse Olson administered the test properly. Indeed there was no evidence to the contrary. The trial judge also found that she was correct in interpreting the results of the test to indicate a healthy fetus, a conclusion which accorded with the predominant view of the expert witnesses called at trial. While several of the appellants' experts found the test results raised a suspicion, the trial judge correctly concluded that even this could render Nurse Olson's conclusion no more than an error in judgment falling short of negligence. Finally, although the trial judge found that Dr. Asher should have reviewed the NST results himself, he also found that the doctor would have reached the same conclusion as Nurse Olson (which he found to be the correct conclusion) that the test result was normal. Therefore, the course of Mrs. Marchand's pregnancy would not have changed had Dr. Asher reviewed the NST results himself.

[20] The appellants' third allegation of negligence is that Dr. Asher fell below the required standard of care in failing to intervene in Mrs. Marchand's pregnancy until July 10, when he scheduled an induction for the next day.

[21] In addressing this argument the trial judge conducted a careful review of the expert evidence on standard of care called by both sides. He was careful to address himself to the standard required of obstetricians practising in Ontario in July and August 1990. He concluded on the basis of ample evidence that where, as here, the pregnancy was normal and there was no indication of fetal distress, it was entirely acceptable practice to do without serial anti-natal monitoring and to schedule the induction when Dr. Asher did. There is no basis to interfere with that conclusion.

[22] Finally, the appellants allege negligence in the failure of nursing staff to attach a fetal heart monitor to Mrs. Marchand following her admission to the Hospital at 1:05 a.m. on July 11. Nurse Colebrook did not do this but monitored the fetal heart rate intermittently with the use of a stethoscope. That monitoring detected no abnormality before 7:40 a.m.

[23] Once again the trial judge carefully reviewed and considered the expert evidence. He concluded that in the circumstances the nursing decision to monitor the fetal heart rate by stethoscope rather than by attaching a fetal heart monitor met an acceptable standard of care. This was particularly so given that the monitoring results indicated that the fetus was not in distress before 7:40 a.m. The record amply supports this finding and we would not interfere with it.

[24] In summary, the trial judge concluded that none of the components of the cumulative negligence advanced by the appellants were made out on the evidence. In our view, this conclusion is unassailable.

2. Causation

[25] The appellants also attack the finding of causation made by the trial judge. He rejected their assertion at trial that Joel's asphyxia was due to a long slow deterioration of the placenta, which could have been detected by proper care. Rather, he found that the fetus was assaulted by a sudden placental abruption, which commenced without warning about 7:40 a.m. and which resulted in critical oxygen deprivation to the fetus until Joel was delivered at 8:32 a.m.

[26] Here, as well, the finding of the trial judge is well supported in the evidence. It cannot be said in any way to be unreasonable. The trial judge carefully reviewed the evidence. He recognized that much of the evidence describing an abruption came from Dr. Asher himself. There was also, however, significant corroborating evidence, particularly the testing of the relevant blood gases. That clinical evidence supported the conclusion that an acute event, which had its onset at about 7:40 a.m. and evolved rapidly thereafter, caused Joel's profound injuries.

[27] The conclusion about what happened to Joel was carefully drawn after a review of all the evidence. It is a reasonable conclusion, which we must accept. A severe spontaneous placental abruption, not anything done by the respondents, caused this tragedy.

II. DID THE APPELLANTS RECEIVE A FAIR TRIAL?

[28] The appellants submit that, taken cumulatively, a number of evidentiary rulings by the trial judge as well as the trial judge's uneven application of his evidentiary rulings (a) denied the appellants the opportunity fairly to present their case or, (b) created a reasonable apprehension of bias on the part of the trial judge. In their factum, the appellants submit that the impugned rulings "distorted the trial process", "impaired any reasonable attempt to achieve justice" and "negated the Marchands' right to present their case fully". The appellants made similar oral submissions.

[29] We do not understand the appellants to say that any one of the evidentiary rulings, standing on its own, would be sufficient to warrant interference by this court. Rather, it is their position that we must consider whether the overall, cumulative effect of these rulings denied the appellants a fair trial. We will review each impugned ruling individually to assess whether the cumulative complaint the appellants advance has any substance.

A. Evidentiary Rulings

1. Ruling limiting expert evidence to the "substance" of the report

[30] During the examination-in-chief of Dr. Fields, an expert witness called by the appellants, their counsel asked about indications of late decelerations on the NST strip. Counsel for the respondents objected on two grounds: first, rule 31.07(1), which prevents a party from introducing information at trial where he or she has refused to furnish the information on discovery; and second, rule 53.03(1), which requires a party to serve an expert's report setting out the substance of the expert's proposed testimony. On examination for discovery, counsel for the respondents had asked that the location of late decelerations be identified on the NST strip. Appellants' counsel refused to provide that information. Although the appellants filed a report from Dr. Fields, the report merely described the NST strip as abnormal and suspicious.

[31] The trial judge ruled that the appellants had failed to comply with both rules 31.07 and 53.03. However, applying rule 53.08, the trial judge allowed Dr. Fields to testify about indications of late decelerations on the NST strip on the ground that counsel for the respondents would have sufficient time to prepare their cross-examination of Dr. Fields. In making this ruling, he cautioned counsel for the appellants (and to a lesser extent counsel for the respondents) that, at some point, attempts to examine experts on matters outside their reports would cause prejudice to the other side requiring the exclusion of testimony.

[32] The appellants' counsel proceeded to examine Dr. Fields extensively on the NST strip. He then began to examine Dr. Fields on the relationship between oxygen deprivation and fetal reserve, and specifically about bradycardia (abnormally slow heart rate). Counsel for the respondents objected on the ground that the concept of bradycardia appeared nowhere in Dr. Fields' report. The appellants' counsel argued that the report dealt with the standard of care in treating an overdue mother, and that the questions went to signs of fetal distress some hours before the delivery. The trial judge ruled that the appellants' counsel could not pursue the "bradycardia" line of questioning because Dr. Fields' report made no mention of when fetal distress was determined.

[33] The appellants submit that Dr. Fields should have been permitted to explain what bradycardia means because bradycardia is a sign of fetal distress, and fetal distress appeared in the report. They contend that the trial judge erred in adopting an unduly narrow construction of rule 53.03, specifically with respect to the phrase "the substance of his or her proposed testimony". In particular, the appellants submit that the trial judge erred in equating "substance" with "summary". Indeed, in their factum, the appellants submit that "the Marchands' expert witnesses were constrained to testifying verbatim from the contents of their reports". It is the appellants' submission that this ruling set an erroneously high standard for what is required in an expert report and impeded the presentation of their case.

[34] Rule 53.03 governs expert opinion evidence. At the time of trial, rule 53.03 provided:

53.03 (1) A party who intends to call an expert witness at trial shall, not less than ten days before the commencement of the trial, serve on every other party to the action a report, signed by the expert, setting out his or her name, address and qualifications and the substance of his or her proposed testimony.

(2) No expert witness may testify, except with leave of the trial judge, unless subrule (1) has been complied with. [See Note 1 at end of document]

Unless a party has fully complied with the requirements set out in rule 53.03(1), an expert witness called by that party may not testify except with leave.

[35] This court considered the meaning of the "substance" of the proposed testimony of an expert in Thorogood v. Bowden (1978), 1978 1367 (ON CA), 21 O.R. (2d) 385, 89 D.L.R. (3d) 604 (C.A.). A medical expert retained by the plaintiff in a personal injury action submitted a report indicating that the injuries would manifest in more intensive symptoms later in life. At trial, the plaintiff's medical expert gave evidence about the possibility of arthritis and the future need for an artificial hip. On appeal, the defendant argued that the trial judge ought to have declared a mistrial, as the matters raised by the expert had not been included in his medical reports. The court dismissed the appeal. Lacourcière J.A., writing for the majority, reasoned as follows at p. 386 O.R.:

We interpret the law with respect to medical reports to be that a medical expert is not to be narrowly confined and limited to the precise contents of his report, but he has a right to explain and amplify. What was done here, in our view, . . . was to expand on what was latent in the medical report, and it did not open a new field. In our view, the trial Judge properly concluded that there was no prejudicial surprise here and, therefore, exercised his discretion and properly refused to declare a mistrial.

[36] Thorogood was applied in Auto Workers' Village (St. Catherines) Ltd. v. Blaney, McMurtry, Stapells, Friedman (1997), 14 C.P.C. (4th) 152 (Ont. Gen. Div.). The plaintiff alleged, among other things, that the solicitors were negligent and caused the plaintiff damages in connection with a condominium project. The plaintiff called a lawyer to give expert opinion evidence in the area of condominium development. During examination in-chief, the witness opined that a clause in an agreement might be void. The defendants objected to this line of questioning on the ground that it went beyond the expert's report. Quinn J. ruled that the expert could not testify about the validity of the clause, as that opinion was not stated in his report. Quinn J. relied on Thorogood and found, at p. 157, that the impugned questioning entered a new field:

The opinion [by the expert], as to the voidness of the price- escalation clause, creates a discrete instance of solicitors' negligence: one which had never before been raised by the plaintiff. In other words, it opens up a new field. It is neither touched upon nor latent in the report of [the expert]. Therefore, the report does not contain "the substance" of the "proposed testimony" on the issue of voidness, as required by subrule 53.03(1).

See also Iler v. Beaudet, 1971 584 (ON SC), [1971] 3 O.R. 644 (Co. Ct.); McEachrane v. Children's Aid Society of Essex (County) (1986), 10 C.P.C. (2d) 265 (Ont. H.C.J.).

[37] Ollet v. Bristol Aerojet Ltd., [1979] 3 All E.R. 544 (Q.B.) dealt with an action for personal injuries suffered in connection with some machinery. An expert witness filed a report merely setting out a factual description of the machine and the alleged circumstances in which the accident happened. Ackner J. considered the English equivalent of rule 53.03 and found that the report failed to comply with the requirement that the parties exchange the substance of the expert's proposed testimony. He interpreted the term "substance" in light of the function of expert evidence, stating at p. 544:

. . . An expert, unlike other witnesses, is allowed, because of his special qualifications and/or experience, to give opinion evidence. It is for his opinion evidence that he is called, not for a factual description of the machine or the circumstances of the accident, although that is often necessary in order to explain and/or justify his conclusions. When the substance of the expert's report is to be provided, that means precisely what it says, both the substance of the factual description of the machine and/or the circumstances of the accident and his expert opinion in relation to that accident, which is the very justification for calling him.

[38] In our view, these cases indicate that the "substance" requirement of rule 53.03(1) must be determined in light of the purpose of the rule, which is to facilitate orderly trial preparation by providing opposing parties with adequate notice of opinion evidence to be adduced at trial. Accordingly, an expert report cannot merely state a conclusion. The report must set out the expert's opinion, and the basis for that opinion. Further, while testifying, an expert may explain and amplify what is in his or her report but only on matters that are "latent in" or "touched on" by the report. An expert may not testify about matters that open up a new field not mentioned in the report. The trial judge must be afforded a certain amount of discretion in applying rule 53.03 with a view to ensuring that a party is not unfairly taken by surprise by expert evidence on a point that would not have been anticipated from a reading of an expert's report.

[39] We are unable to conclude that the trial judge erred in his ruling. Although we do not have a copy of his report, it appears from the transcripts that Dr. Fields' report merely stated his conclusion that the appropriate standard of care was to attach a fetal heart monitor on admission to indicate fetal distress at the earliest possible point. Dr. Fields' report did not refer to bradycardia, did not state the point at which fetal distress was determined, and did not deal with the "reserve capacity" that the fetus might have had.

[40] Moreover, the trial judge had ruled that Dr. Fields had expertise only with regard to the standard of care in Michigan. Dr. Fields' report dealt with the topic of fetal distress in connection with his opinion on the standard of care. The appellants' counsel, however, sought to elicit from Dr. Fields, through the bradycardia questions, evidence going to causation. Thus, the bradycardia evidence was directed to an issue not addressed in the report. Accordingly, even if the trial judge erred in his interpretation of rule 53.03, no prejudice arises from that error as Dr. Fields had not been qualified to give expert evidence about causation.

2. Denial of request for adjournment

[41] In the light of the trial judge's ruling restricting Dr. Fields to the "substance" of his report, the appellants requested an adjournment for a "couple of weeks" to obtain supplementary reports from other witnesses they intended to call to give expert evidence. In particular, the appellants sought to obtain a supplementary report from Dr. Silver, whose original report was less than one page and dealt only with the issue of abruption. Counsel for the respondents opposed the request, arguing that the appellants were seeking an opportunity to "re-do the liability case", and that if the request was allowed, the respondents were entitled to a further examination for discovery.

[42] The trial judge refused the appellants' request for an adjournment. He clarified the effect of his ruling concerning Dr. Fields' report, stating that it "is not a general ruling throughout the trial. It does not apply to all the reports. It only replies to the evidence that I heard from Dr. Fields yesterday and the way the evidence was developed." The trial judge emphasized the need to proceed with the trial, noting that counsel for the respondents would be entitled to a further examination for discovery if the experts were allowed to file further reports, thus unduly delaying the completion of the case.

[43] Although the appellants did not specifically address the reasons why the denial of their request for an adjournment was in error, they submit that the Fields ruling required them to revisit every report submitted by their liability experts. The denial of an adjournment, they say, prevented them from fully and fairly presenting their case.

[44] In our view, the trial judge did not act improperly in refusing to grant the request for an adjournment. The trial judge made it clear that the Fields ruling applied only to Dr. Fields, and that he would deal with issues concerning the adequacy of other expert reports as they arose. The trial judge emphasized the need to continue with the trial. This need was properly emphasized, given that: the parties were then several weeks into the trial; there had been substantial discovery prior to the trial; and the filing of additional reports would necessitate further examinations for discovery, thus prolonging the trial. The denial of an adjournment did not cause any injustice in this case.

3. Ruling preventing Dr. Silver from testifying on her second report

[45] The appellants called Dr. Silver, a pathologist at the Toronto Hospital for Sick Children, as an expert witness. Dr. Silver had prepared a report dated April 22, 1993. Following the Fields ruling, the appellants obtained a further report from Dr. Silver. Dr. Silver's second report was served on November 24, 1993. The respondents were not advised of the substance of Dr. Silver's additional evidence before being served with this report. The respondents objected to Dr. Silver testifying on matters raised in the second report on the grounds that: (a) the second report set out a new theory of causation; and (b) allowing Dr. Silver to testify in accordance with the second report would cause prejudice to the respondents as Dr. Manning, an expert in fetal medicine called by the appellants, had already testified and the respondents would be denied the opportunity to cross-examine him on the new theory.

[46] The trial judge ruled that he would not grant leave for Dr. Silver to give evidence about matters set out in the second report. The trial judge described the first report of Dr. Silver, which stated that the presence of meconium within the fetal membrane provided evidence of fetal distress, as extremely short. In contrast, the second report was over three pages long, and largely devoted to explaining the reasons for Dr. Silver's opinion about why a placental abruption could not have resulted in severe birth asphyxiation.

[47] The trial judge commented on the two reports as follows:

. . . I simply do not accept the argument that the report of April 22nd, 1993 would allow Dr. Silver to give the evidence as set out in her report dated November 23, 1993. Mr. Wunder is attempting to do with Dr. Silver exactly what I had ruled he could not do with Dr. Fields, which is, to just state a conclusion in a report and attempt to explain in the evidence the reason for the conclusion. The reason should be in the report so opposing counsel will know such reasoning and can test it by cross-examining other expert witnesses.

[48] The trial judge then considered whether rule 53.08 obliged him to grant leave for Dr. Silver to give evidence as proposed. The trial judge agreed that the respondents would suffer prejudice if Dr. Silver was allowed to give the proposed testimony. Dr. Manning had completed his testimony, and the respondents would be unable to cross-examine Dr. Manning on Dr. Silver's second report. Accordingly, the respondents' right to a full and fair defence would be impaired. The trial judge found that requiring Dr. Manning to return for further cross- examination would result in undue delay. Given these considerations, the trial judge refused to grant leave.

[49] We do not agree that the trial judge erred in denying leave to permit Dr. Silver to testify about matters in her second report for three reasons.

[50] First, the appellants sought to elicit Dr. Silver's opinion that severe birth asphyxiation could not have resulted from an abruption. The first report did not deal with abruption; this report concerned the presence of meconium as an indication of fetal distress. Accordingly, testimony on abruption would certainly "open up a new field" not covered in the first report.

[51] Second, the trial judge found that the respondents would be prejudiced as they had been unable to cross-examine Dr. Manning about Dr. Silver's second report and that requiring Dr. Manning to re-attend would cause undue delay. This was a matter within the discretion of the trial judge and we see no basis to interfere.

[52] Third, Dr. Silver, ultimately, did testify about her opinion that an abruption was not the cause of Joel Marchand's injuries.

[53] We add that the appellants could have avoided the very problem they encountered with respect to the evidence of Dr. Silver. They had gone to trial on a one-page report from a witness they considered important and should not have been surprised when it proved inadequate. When it did, they took no steps to advise the respondents to expect the amplified report they had asked Dr. Silver to prepare.

4. "Foundational facts" rulings

[54] On November 4, 1993, the appellants entered as Exhibit 47 ("Ex. 47") a report written by two home care experts, Ms. Kelly and Ms. Snell, dated August 19, 1993. Ex. 47 listed various source documents, including numerous reports from medical practitioners involved in the care of Joel Marchand. Counsel for Dr. Asher stated that he understood the appellants to be undertaking to call the authors of Ex. 47 and also to prove the source documents. The trial judge responded that the appellants would have to produce their source documents. The appellants' counsel gave no indication that he would not prove the source documents.

[55] On November 24, 1993, the appellants served a letter advising that Ms. Kelly and Ms. Snell would no longer be relying on the medical reports referred to in Ex. 47; instead, the two witnesses would be relying on videos filed at trial. The respondents objected to Ms. Kelly giving opinion evidence on a basis other than the medical reports. The respondents' counsel argued that the appellants had undertaken to prove the medical opinions contained in these reports. The respondents' counsel further argued that Ms. Kelly's evidence was of no probative value as there was no admissible evidence proving the factual foundation of her opinion.

[56] The trial judge accepted the respondents' submissions and ruled that Ms. Kelly's opinion lacked probative value unless the appellants proved the facts on which she based her opinion (the "foundational facts ruling"). The trial judge acknowledged that the appellants might prove Joel's disability in a number of ways, but noted that "if [Ms. Kelly's] opinion is based on the opinions of doctors then the plaintiff must attempt to prove the opinions of such doctors. . .". The trial judge also found that the appellants' counsel's refusal to prove the medical reports referred to in Ex. 47 breached an implied undertaking to prove the opinions of the medical doctors referred to in Ex. 47.

[57] Given the breach of this implied undertaking, the trial judge stated that he did "not intend to give Ex. 47 any weight whatsoever". As the respondents did have notice of the substance of Ms. Kelly's evidence, the trial judge was prepared to allow Ms. Kelly to testify. However, he stated that he would insist that all of the facts on which Ms. Kelly relied be proved by some admissible evidence before he would permit Ms. Kelly to state her opinion.

[58] A similar issue arose later on May 19, 1994. The appellants proposed to call Ms. Staub to give opinion evidence regarding the future care costs for Joel Marchand. Ms. Staub had written a report dated September 13, 1993, which had been filed as an exhibit on an implied undertaking that the appellants would prove the facts on which the report was based. The respondents objected to Ms. Staub being allowed to give evidence on the ground that the appellants had failed to prove the foundational facts. The appellants' counsel suggested that the earlier foundational facts ruling was unclear, and submitted that the foundational facts ruling allowed him to prove the foundational facts upon which Mr. Staub's opinion was based in a manner different than that set out in her written report. The trial judge reiterated that the effect of the foundational facts ruling was that if a report was based on the reports of doctors, the opinion of the doctors must be proven.

[59] The trial judge also referred to an earlier ruling requiring counsel to file a list of the expert witnesses they intended to call or whose reports would be filed under s. 52 of the Ontario Evidence Act, R.S.O. 1990, c. E.23. He also ruled that before an expert could testify a voir dire be held in order to determine the facts or opinions that the expert relied on in forming his or her opinion.

[60] In R. v. Lavallee, 1990 95 (SCC), [1990] 1 S.C.R. 852, 55 C.C.C. (3d) 97, the Supreme Court of Canada reviewed the circumstances in which expert opinion evidence may be admitted, notwithstanding that the opinion is based upon hearsay evidence. Wilson J. reviewed the Supreme Court's prior decision in R. v. Abbey, 1982 25 (SCC), [1982] 2 S.C.R. 24, 68 C.C.C. (2d) 394, and at pp. 127-28 C.C.C. [p. 893 S.C.R.] interpreted Abbey as standing for the following propositions:

1. An expert opinion is admissible if relevant, even if it is based on second-hand evidence.

2. This second-hand evidence (hearsay) is admissible to show the information on which the expert opinion is based, not as evidence going to the existence of the facts on which the opinion is based.

3. Where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion.

4. Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist.

Thus, Lavallee establishes that an expert opinion based upon hearsay will be admissible; however, the weight to be attached to that opinion is an issue.

[61] Wilson J. clarified the fourth proposition, and rejected the proposition that every fact relied upon by the expert must be independently proven before any weight could be attached to an expert opinion. She stated at pp. 130-31 C.C.C. [pp. 896-97 S.C.R.]:

. . . Abbey does not, in my view, provide any authority for that proposition. The court's conclusion in that case was that the trial judge erred in treating as proven the facts upon which the psychiatrist relied in formulating his opinion. The solution was an appropriate charge to the jury, not an effective withdrawal of the evidence. In my view, as long as there is some admissible evidence to establish the foundation for the expert's opinion, the trial judge cannot subsequently instruct the jury to completely ignore the testimony. The judge must, of course, warn the jury that the more the expert relies on facts not proved in evidence the less weight the jury may attribute to the opinion.

Where the factual basis of an expert's opinion is a mélange of admissible and inadmissible evidence the duty of the trial judge is to caution the jury that the weight attributable to the expert testimony is directly related to the amount and quality of admissible evidence on which it relies.

[62] Sopinka J., in a concurring judgment, noted that the principles underlying Abbey give rise to a contradiction: an expert opinion based entirely on hearsay will be admissible, but will be entitled to no weight. He provided the following resolution at pp. 132-33 C.C.C. [p. 899-900 S.C.R.]:

The resolution of the contradiction inherent in Abbey, and the answer to the criticism Abbey has drawn, is to be found in the practical distinction between evidence that an expert obtains and acts upon within the scope of his or her expertise (as in City of St. John), and evidence that an expert obtains from a party to litigation touching a matter directly in issue (as in Abbey.)

In the former instance, an expert arrives at an opinion on the basis of forms of enquiry and practice that are accepted means of decision within that expertise. A physician, for example, daily determines questions of immense importance on the basis of the observations of colleagues, often in the form of second or third-hand hearsay. For a court to accord no weight to, or to exclude, this sort of professional judgment, arrived at in accordance with sound medical practices, would be to ignore the strong circumstantial guarantees of trustworthiness that surround it, and would be, in my view, contrary to the approach this court has taken to the analysis of hearsay evidence in general, exemplified in Ares v. Venner (1970), 1970 5 (SCC), 14 D.L.R. (3d) 4 [(S.C.C.)]. In R. v. Jordan (1984), 1984 635 (BC CA), 11 C.C.C. (3d) 565 (B.C.C.A.), a case concerning an expert's evaluation of the chemical composition of an alleged heroin specimen, Anderson J.A. held, and I respectfully agree, that Abbey does not apply in such circumstances: see also R. v. Zundel (1987), 1987 121 (ON CA), 31 C.C.C. (3d) 97 at p. 146 (Ont. C.A.), where the court recognized an expert opinion based upon evidence ". . . of a general nature which is widely used and acknowledged as reliable by experts in that field".

Where, however, the information upon which an expert forms his or her opinion comes from the mouth of a party to the litigation, or from any other source that is inherently suspect, a court ought to require independent proof of that information. The lack of such proof will, consistent with Abbey, have a direct effect on the weight to be given to the opinion, perhaps to the vanishing point. But it must be recognized that it will only be very rarely that an expert's opinion is entirely based upon such information, with no independent proof of any of it. Where an expert's opinion is based in part upon suspect information and in part upon either admitted facts or facts sought to be proved, the matter is purely one of weight. . . .

(Parallel citations omitted)

[63] This court considered the weight to be given to an expert opinion based solely upon hearsay evidence in R. v. Scardino (1991), 1991 13919 (ON CA), 6 C.R. (4th) 146, 46 O.A.C. 209 (C.A.). The accused appealed from his conviction for second degree murder. At trial, the accused led expert evidence from a psychiatrist, who testified that the accused suffered from a psychiatric disorder that would have prevented him from appreciating the nature and quality of his acts. Among the evidence relied upon by the expert in forming his opinion was a factual account of the events recounted by the accused. The trial judge instructed the jury that these matters had not been established in evidence, and thus the "degree to which [the expert's] opinion is dependent upon those statements attributed to the accused is of no weight . . .". Finlayson J.A. found that the trial judge had not erred in her charge to the jury, stating at p. 153 C.R. that "[a]n expert's opinion is admissible in evidence, notwithstanding the absence of proof in some areas relied upon by the expert. However, the weight to be given to the opinion in such cases is diminished, sometimes to the point where the opinion can be given no weight at all." This general proposition was reaffirmed by this court in R. v. Grosse (1996), 1996 6643 (ON CA), 29 O.R. (3d) 785, 107 C.C.C. (3d) 97 (C.A.), where this court indicated that an expert opinion based entirely upon inadmissible evidence would itself be entitled to no weight and therefore could not be accepted by the trial judge.

[64] It is clear from the Supreme Court's decision in Lavallee that proof of foundational facts goes to the weight to be accorded to the opinion rather than its admissibility. It follows that, taken in isolation, the appellants' unwillingness to prove in evidence the medical reports upon which they had relied was not a sufficient reason to preclude Ms. Kelly and Ms. Staub from testifying.

[65] The trial judge based his refusal to admit the evidence on his finding that the evidence would have no weight. Ordinarily, this is not the appropriate approach. The question of weight can only be assessed at the close of a party's case; it cannot be assessed prior to an expert witness giving testimony. Further, it is not the law that a party must prove the identical factual foundation relied upon by an expert in formulating an opinion. Indeed, the Supreme Court clearly rejected that proposition in Lavallee.

[66] However, it appears to us that the issues in the case at bar were more complex. The appellants sought to rely upon videotapes as the foundation for the opinions of Ms. Kelly and Ms. Staub rather than the medical reports that served as the basis for the Kelly and Staub reports. The trial judge characterized the matter as an attempt by the appellants to rely upon a different set of facts from the facts that served as a basis for the experts' reports.

[67] While a party might prove the same set of facts from alternative sources, it must also be the case that a party cannot rely upon a different set of facts. This proposition is merely a variation of the basic rule articulated in Lavallee: insofar as a party fails to prove those facts relied upon by an expert in forming his or her opinion, the expert opinion will be entitled to little or no weight.

[68] We are not persuaded that, in light of all the factors before the trial judge, he erred in his approach to the problem he faced. The foundational facts ruling has to be considered in the context of a long and difficult trial and in relation to the trial judge's efforts to manage that trial in an efficient manner. The appellants were in breach of an undertaking and were refusing to prove in evidence the factual foundation of the opinion. It was open to the trial judge to conclude that the observations and conclusions could not be established in any way other than by adducing the medical reports containing those observations and conclusions. The videotapes could only provide evidence of Joel Marchand's present capabilities; they could say nothing about Joel Marchand's future development. The appellants' refusal to prove the medical reports provided a sufficient basis for the trial judge to conclude that the experts' opinions would be entitled to no weight. Given the protracted nature of the tri al and the explicit position taken by the appellants as to what they would and would not prove, we would not interfere with the trial judge's decision not to hear evidence that would be given no weight.

[69] Even if the trial judge did err, the error resulted in no substantial wrong or miscarriage of justice. The opinions of Ms. Kelly and Ms. Staub were entitled to little or no weight, given that the factual foundations of their reports had not been proved in evidence. Even if the trial judge had heard the proposed testimony, he could not have accepted it. Finally, this evidence pertained only to damages and would have had no impact on the trial judge's liability findings.

5. Ruling allowing the respondents to correct Dr. Asher's discovery admission

[70] On examination for discovery, the appellants' counsel asked Dr. Asher a number of questions relating to his observations of amniotic fluid during Mrs. Marchand's Caesarean section. The relevant questions and answers are reproduced below. The most important is Q. 596 and Dr. Asher's "admission" of oligohydramnios.

594 Q. Am I correct that at birth this child was observed to suffer the symptoms of oligohydramnios?

A. At birth there was very little amniotic fluid.

595 Q. So am I correct, that's a diagnosis of oligohydramnios?

A. That is the diagnosis, but you said symptoms, didn't you?

596 Q. Sorry. Am I correct this child showed oligohydramnios at birth?

A. Yes.

792 Q. . . . May I take it there was some amniotic fluid?

A. Yes.

793 Q. You have told me very little?

A. I said scant I believe.

801 Q. Would you describe the amount of amniotic fluid? Your report says "very little". You told me today, "scant". Are you able to give me some graphic description of how much? Just a couple of drops . . .

A. No, it would be approximately 300 c.c.'s.

802 Q. And what would the normal amount be?

A. It would be as much as 800 c.c.

810 Q. Am I correct, your record -- your Operative Record does not disclose that there was 300 c.c.'s of amniotic fluid?

A. No, that's a recollection.

811 Q. Okay, so I suggest to you that it could have been 150.

A. You can suggest what you want. My recollection is approximately 300 c.c.'s.

812 Q. No, you're the one who is testifying and yes, I can suggest what I want as long as it's not irresponsible . . .

A. Yes.

813 Q. . . . and I just want . . .

A. Well, I think it's a little -- 150 is a big difference at that level.

814 Q. I understand. Could it have been 200, sir?

A. It wasn't measured so I can't tell you absolutely.

815 Q. So we can't be absolute about the 300.

A. No.

816 Q. And so I suggest to you it could have been 200.

A. No.

817 Q. You think it was more than that.

A. Yes.

[71] After the trial had commenced, counsel for the respondents sent the appellants' counsel a letter correcting a number of the answers given by Dr. Asher on discovery, and withdrawing the "admission" of oligohydramnios. The corrections relevant for present purposes are as follows:

596 Q. Sorry. Am I correct this child showed oligohydramnios at birth?

A. There was no oligohydramnios at birth. For a 42-week gestation the amniotic fluid would normally be approximately 250 to 300 cc.

801 Q. You reported very little, you told me today scant. Are you able to give me some graphic description of how much, just a couple of drops?

A. No, it would be approximately 300 cc.

802 Q. And what would the normal amount be?

A. An amniotic fluid volume of 800 cc's would be normal for approximately 40 weeks gestation.

[72] The appellants' counsel objected to the trial judge granting leave for Dr. Asher to correct the answers that he gave on discovery. The appellants argued that they relied on Dr. Asher's "admission" of oligohydramnios and would be prejudiced in the presentation of their case if Dr. Asher changed his admission. The appellants' counsel submitted that Rule 31.09(1) requires a party to correct any incorrect or incomplete answers "forthwith", and that the respondents had failed to comply with this requirement. The appellants' counsel also argued that Dr. Asher's corrections would have affected the examination in-chief of Dr. Manning (who had finished testifying) and would affect the examination in-chief of Dr. Johnson (who had been sent a number of Dr. Asher's discovery answers for consideration).

[73] The trial judge reserved his ruling, but did observe that Dr. Asher's discovery answers would in any event have been subject to clarification by him either on examination-in-chief or on cross-examination. He also noted that, even if the corrections were allowed, the appellants' counsel would be able to cross-examine Dr. Asher extensively on any putative mistake. The trial judge did not make an explicit ruling allowing Dr. Asher to correct his answer on discovery, but he did allow the trial to proceed on the basis that Dr. Asher was free to testify that there was no oligohydramnios.

[74] On cross-examination, Dr. Asher gave the following explanation of his discovery answers and of his corrections:

A. I was under the mistaken idea that 800 cc of amniotic fluid was, was normal for 42 weeks, and I was actually thinking of a term pregnancy which was 40 weeks, or a pregnancy at the due date which was 40 weeks as -- and actually that's -- the average volume at 40 weeks would be 800 cc, the average volume at 42 weeks would be somewhere between 250 and 300 cc.

[75] The appellants submit that the trial judge erred in allowing the respondents to correct the admission made by Dr. Asher during his examination for discovery and that prejudice inevitably flowed as the appellants' case was premised on an admission of oligohydramnios. The appellants also submit that they suffered prejudice in being required to cross-examine Dr. Asher on his admission and then the subsequent correction.

[76] In our view, the trial judge committed no error in permitting Dr. Asher to correct his discovery evidence for three reasons.

[77] First, Dr. Asher's original discovery answer was not a formal admission. As such, it was always open to him to explain his discovery answer in his testimony. In Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2d ed. (Toronto: Butterworths, 1999) at pp. 1051-53, the authors distinguish between formal and informal admissions. A formal admission is conclusive as to the matter admitted, and cannot be withdrawn except by leave of the court or the consent of the party in whose favour it was made. The Law of Evidence states at pp. 1051-52 that a formal admission may be made in the following ways:

(1) by a statement in the pleadings or by failure to deliver pleadings; (2) by an agreed statement of facts filed at the trial; (3) by an oral statement made by counsel at trial, or even counsel's silence in the face of statements made to the trial judge by opposing counsel with the intention that the statements be relied on by the judge; (4) by a letter written by a party's solicitor prior to trial; or (5) by a reply or failure to reply to a request to admit facts.

In contrast, an informal admission does not bind the party making it, if it is overcome by other evidence. That is, a party making an informal admission may later lead evidence to reveal the circumstances under which the admission was made in order to reduce its prejudicial effect.

[78] Dr. Asher's original discovery answer does not constitute a formal admission in the sense described in The Law of Evidence. We note as well that rule 51.05, governing the withdrawal of admissions requiring leave of the court, does not apply to an admission made on examination for discovery.

51.05 An admission made in response to a request to admit, a deemed admission under rule 51.03 [failure to respond to a request to admit] or an admission in a pleading may be withdrawn on consent or with leave of the court.

See G.D. Watson and C. Perkins, Holmested and Watson: Ontario Civil Procedure (Toronto: Carswell, 1984) at 3126.

[79] Second, rule 31.09 outlines a party's obligations with respect to information obtained subsequent to an examination for discovery. At the time of trial, rule 31.09 provided:

31.09 (1) Where a party has been examined for discovery or a person has been examined for discovery on behalf or in place of, or in addition to the party, and the party subsequently discovers that the answer to a question on the examination,

(a) was incorrect or incomplete when made; or

(b) is no longer correct and complete,

the party shall forthwith provide the information in writing to every other party.

(2) Where a party provides information in writing under subrule (1),

(a) the writing may be treated at a hearing as if it formed part of the original examination of the person examined; and

(b) any adverse party may require that the information be verified by affidavit of the party or be the subject of further examination for discovery.

(3) Where a party has failed to comply with subrule (1) or a requirement under clause (2)(b), and the information subsequently discovered is,

(a) favourable to the party's case, the party may not introduce the information at the trial, except with leave of the trial judge; or

(b) not favourable to the party's case, the court may make such order as is just.

[80] Holmested and Watson, supra, describe at 3125 the obligation under rule 31.09 as an ongoing duty to correct and complete the answers given. In general, parties are entitled to correct their discovery answers. The impact of corrections is a matter to be decided by the trial judge, who is entitled to examine both the original and the amended answers: See Machado v. Pratt & Whitney Canada Inc. (1993), 17 C.P.C. (3d) 340 (Ont. Master); Capital Distributing Co. v. Blakey (1997), 1997 12173 (ON SC), 33 O.R. (3d) 58, 147 D.L.R. (4th) 372 (Gen. Div.).

[81] Third is the combined effect of rules 31.09 and 53.08. Subrule 31.09(3)(a) provides that, where a party has failed to correct a discovery answer "forthwith", the party may not introduce the evidence except with leave. As noted above in the discussion of the ruling with respect to Dr. Silver, subrule 53.08(d) provides that, where evidence is admissible only with leave under subrule 31.09(3), the trial judge shall grant leave unless to do so will cause prejudice or undue delay. Accordingly, notwithstanding non-compliance with subrule 31.09(3), a trial judge must grant leave unless to do so would cause prejudice that could not be overcome by an adjournment or costs.

[82] With respect to the correction, subrule 31.09(2)(a) provides that a correction "may" be treated as forming part of the original examination. As there was no ruling on the correction, it is unclear whether the correction was, in fact, treated in that manner.

[83] There are circumstances in which a party will not be permitted to correct their discovery answers. In Burke v. Gauthier (1987), 24 C.P.C. (2d) 281 (Ont. H.C.J.), a personal injury action, the plaintiff sought to adduce evidence that his physical condition had substantially changed since his examination for discovery. The plaintiff had given no notice of the new evidence, and the respondents objected to its admission. Campbell J. began by describing the purpose of rule 31.09 at p. 285:

The purpose of the provision is obvious. The parties prepare for trial on the basis of the evidence given at the discoveries. They assume that the answers given on discovery continue to be correct and complete, unless they are given information to the contrary. They figure out what they have to meet, decide how to prepare their own case, what investigations if any to undertake, what witnesses to call, what instructions to seek, and what kind of settlement might be reasonable, on the basis of the evidence given at the discoveries. If that evidence changes then there is a different case to meet. If the changes are not brought to the attention of the adverse party before trial he has no time or opportunity to investigate and prepare and consider the need for fresh medical examination and must meet a case different from the one that his opponent has led him to expect.

Campbell J. found that the new evidence changed the nature of the case the respondents had to meet. In considering whether to grant leave, he found that the plaintiff was well aware of the change, and that he had made no attempt to bring the new evidence to the defendant's attention. Accordingly, Campbell J. declined to grant leave. See also Bachalo v. Robson (1995), 1997 23148 (MB QB), 35 C.P.C. (3d) 230, 101 Man. R. (2d) 316 (Q.B.).

[84] The present case is distinguishable. The respondents did not put forward a different case at trial. Dr. Asher testified, both on discovery and on cross-examination, that there were approximately 300 c.c. of amniotic fluid. The respondents led evidence at trial that indicated 300 c.c. of amniotic fluid did not constitute oligohydramnios for a pregnancy of 42 weeks. Dr. Asher's original discovery answer, that he thought the "child showed oligohydramnios at birth", even if not corrected or explained, did not require the trial judge to find that there was oligohydramnios. There was ample evidence before the trial judge for him to find, as he did, that there was no oligohydramnios at birth.

[85] Accordingly, we do not accept the argument that the appellants were prejudiced by this ruling. The discovery answer did not amount to a formal admission. Even if the trial judge had not allowed Dr. Asher to correct his discovery answers, Dr. Asher was still entitled to give a different answer at trial and explain the reason for the change in his evidence. The trial judge was entitled to decide which version he accepted. The original discovery answers, the corrected answers, and Dr. Asher's explanations were all before the trial judge. The trial judge was entitled to weigh the differing answers and the explanation in deciding the matter. It is clear from his reasons that he accepted Dr. Asher's explanation and the corrected discovery answer. In our view, it was open to the trial judge to reach this conclusion, and there appears to be no basis to interfere with his ruling on this matter.

[86] We see no error in the manner in which this issue was dealt with by the trial judge.

6. Ruling restricting the cross-examinations of defendants to elicit opinion evidence

[87] The appellants discontinued their action against three respondents -- Nurse Brown-Davidson, Nurse Kroeker and Dr. Awad -- on the condition that they be available at trial for cross- examination. The appellants attempted to lead opinion evidence from these witnesses. On appeal the appellants complained about their inability to lead opinion evidence from Dr. Awad.

[88] The trial judge ruled that the appellants were required to comply with rule 53.03 if they intended to elicit opinion evidence from Dr. Awad. As no rule 53.03 reports had been filed, the appellants were required to seek leave of the court. The trial judge further noted that he was required to give leave unless prejudice would result.

[89] Dr. Awad was the pathologist involved in the treatment of Joel Marchand. The respondents objected to counsel for the appellants leading any opinion evidence from Dr. Awad that was not covered by the reports he had prepared as a treating physician. The trial judge ruled that, unless notice was given or leave was granted, Dr. Awad would not be permitted to give independent opinion evidence concerning the conduct of others, or to express his opinion on the cause of Joel's condition. However, the trial judge stated that there could be no objection to Dr. Awad giving opinion evidence concerning his own reports, provided such evidence was limited to his involvement in the matter.

[90] As the cross-examination proceeded, this ruling was applied to limit the right of the appellants to cross-examine Dr. Awad on his opinion of the nature of the abruption, if any, that had occurred. Before this court, the respondents do not attempt to support this ruling. The respondents conceded before us that as Dr. Awad was a treating physician, this was a permissible line of questioning, and that the trial judge erred in his ruling on the point. In our view, this error did not result in any significant prejudice to the appellants. The appellants presented their own evidence on the nature of the abruption. The trial judge fully considered the appellants' theory and we are not satisfied that Dr. Awad's evidence would have made any difference.

[91] Appellants' counsel sought to cross-examine Nurse Olson with respect to her opinion about the conduct of other respondents -- Nurse Colebrook and Nurse Want -- regarding the use of a fetal heart monitor on July 11, 1991. The respondents objected, arguing that the questions called for inadmissible opinion evidence, and that the respondent could not be qualified as an expert for the purpose of giving opinion evidence.

[92] The trial judge ruled that appellants' counsel was "not entitled to ask Nurse Olson, a party defendant, her opinion concerning the conduct of other defendants". Accordingly, he restricted appellants' counsel to cross-examining Nurse Olson regarding events on July 5, 1991, when she administered the NST to Mrs. Marchand. The trial judge relied on the proposition that a plaintiff cannot on discovery ask one defendant about the conduct of another defendant, and concluded that "if such questions cannot be asked on an examination for discovery I fail to see how such questions can be asked at trial." He then provided the following rationale for his ruling:

A defendant takes the witness box to defend his or her actions as set out in the pleadings, not to give opinion evidence on issues between the plaintiff and other respondents. The opinion of Nurse Olson on issues between herself and the plaintiffs is relevant to the pleaded issues. Here Mr. Wunder proposes to ask Nurse Olson her opinion on issues which are not pleaded between herself and the plaintiffs.

[93] There is support for the proposition that on an examination for discovery a party cannot obtain an expert opinion from the opposite party about the conduct of another party to the action: See Wade v. Sisters of Saint Joseph of the Diocese of London (1976), 2 C.P.C. 37 (Ont. H.C.J.); Christoyiannis (Litigation guardian of) v. Benoit, [1998] O.J. No. 5200 (Gen. Div.). As the scope of examination for discovery is wider than cross-examination, as a matter of logic, the proposition ought to apply equally to cross-examination.

[94] Nurse Olson was not qualified as an expert at trial. Like Dr. Awad, Nurse Olson was called to testify about her own involvement in the case. It is necessary, then, to regard Nurse Olson as a lay witness for the purpose of assessing the trial judge's ruling.

[95] As a general proposition, lay witnesses may not testify as to their opinion. However, in R. v. Graat, 1982 33 (SCC), [1982] 2 S.C.R. 819 at pp. 835-37, 2 C.C.C. (3d) 365 at pp. 378-79, Dickson J. noted that the "line between 'fact' and 'opinion' is not clear". As such, he found "no reason in principle or in common sense why a lay witness should not be permitted to testify in the form of an opinion if, by doing so, he is able more accurately to express the facts he perceived." He stated at p. 379 C.C.C. [p. 837 S.C.R.] that a lay witness would be permitted to give opinion evidence in the following circumstances:

I accept the following passage from Cross on Evidence as a good statement of the law as to the cases in which non-expert opinion is admissible (at p. 448):

When, in the words of an American judge, "the facts from which a witness received an impression were too evanescent in their nature to be recollected, or too complicated to be separately and distinctly narrated", a witness may state his opinion or impression. . . .

[96] The rationale for admitting opinion evidence in such circumstances is that "it may be difficult for the witness to narrate his factual observations individually." Thus, witnesses are allowed to state their opinions because they "had an opportunity for personal observation", and "were in a position to give the court real help".

[97] The impugned line of questioning went beyond Nurse Olson's personal involvement in the case. She was asked for her opinion on the conduct of other respondents. Nurse Olson was not being asked to state an opinion in order "more accurately to express the facts [she] perceived". The proposed testimony fell outside of the basis for admissibility set out in Graat, supra, and, in our view, was properly disallowed.

7. Rulings preventing impeachment of witnesses on read-ins

[98] Nurse Colebrook was asked a number of questions on examination for discovery about her ability to reach Mrs. Marchand's cervix during her vaginal examination on admission to hospital. Nurse Colebrook stated that she was unable to reach Mrs. Marchand's cervix because it was posterior. She also stated that Mrs. Marchand was tense. These questions and answers were read in as part of the appellants' case.

[99] On cross-examination, counsel for the appellants suggested that Nurse Colebrook was unable to reach Mrs. Marchand's cervix because Mrs. Marchand was tense and not because her cervix was posterior. Nurse Colebrook testified that while Mrs. Marchand was in fact tense, she could not reach her cervix because it was posterior. Counsel for the respondents objected to this line of questioning on the ground that appellants' counsel was attempting to contradict the answers he had read in from Nurse Colebrook's discovery.

[100] The trial judge acknowledged that rule 31.11(4) entitled appellants' counsel to rebut discovery evidence read into the record, but interpreted the rule to mean "that such contradiction must be through another witness or by other admissible evidence apart from the evidence of the defendant who was examined for discovery." He ruled as follows:

In my view the evidence read into the record cannot be contradicted by cross-examining the author of the statement that was read into the record in an attempt to discredit the very evidence which [counsel] made part of the plaintiff's case.

[101] Rule 31.11 governs the use of examination for discovery at trial. The relevant portions of rule 31.11 provide as follows:

31.11 (1) At the trial of an action, a party may read into evidence as part of the party's own case against an adverse party any part of the evidence given on the examination for discovery of,

(a) the adverse party; or

(b) a person examined for discovery on behalf or in place of, or in addition to the adverse party, unless the trial judge orders otherwise,

if the evidence is otherwise admissible, whether the party or person has already given evidence or not.

(4) A party who reads into evidence as part of the party's own case evidence given on an examination for discovery of an adverse party, or a person examined for discovery on behalf or in place of or in addition to an adverse party, may rebut that evidence by introducing any other admissible evidence.

[102] It is clear from the wording of rule 31.11 that a party may read any part of an adverse party's examination for discovery into evidence as part of his or her own case. Moreover, it is also clear that that party is entitled to rebut that evidence by introducing any other admissible evidence. In their discussion of the predecessor to rule 31.11, Holmested and Gale, Ontario Judicature Act and Rules of Practice (Scarborough: Carswell, 1983) at p. 1767, affirm this last proposition:

If a party, as part of his own case, puts in evidence unfavourable to him from the discovery of the opposite party and does not contradict it, he may be bound by it, but he may contradict that which is unfavourable by other evidence and in the circumstances of the particular case may accept or reject such portions as he shall see fit, including the evidence given on discovery. . . . There is no general rule that a party putting in discovery is bound by the answers. If a party, as part of his own case, puts in unfavourable evidence from the discovery of an opposite party, he may contradict it by other evidence . . .

[103] There appears to be no case directly deciding whether a party is entitled to contradict discovery answers read into evidence during cross-examination of the declarant. This is hardly surprising as, for obvious tactical reasons, it will be rare for a party to read in an answer and then seek to impeach the declarant on that very answer.

[104] The wording of rule 31.11(4) does not limit a party's right to rebut discovery answers. Rule 31.11(4) states that a party "may rebut that evidence by introducing any other admissible evidence" [emphasis added]. The words "that evidence" refer to the discovery answers read into evidence. In our view, the words "any other admissible evidence" must refer to any evidence other than the discovery answers read into evidence. We can see no reason in principle to prevent a party from attempting to contradict an adverse party's discovery answers by cross-examining the adverse party.

[105] In our view, the trial judge erred in ruling that appellants' counsel could not attempt to contradict Nurse Colebrook's discovery answers by cross-examining her on those answers. However, it is also our view that no prejudice flowed from the trial judge's erroneous ruling. Counsel objected only after the question was asked and Nurse Colebrook reiterated what she had said on discovery. It is highly unlikely that further cross-examination would have elicited evidence helpful to the appellants.

[106] The real source of prejudice, if any, to the appellants was the tactical decision to read in the answers that Nurse Colebrook gave on discovery. Having read those answers in, the appellants risked that a finding would be made unless they could contradict those answers by other evidence. It was unlikely, as a practical matter, that those answers could have been effectively contradicted by cross-examining the declarant. Justice Gordon's comment in Collins v. Belgian Dry Cleaners, Dyers and Furriers Ltd., 1951 187 (SK CA), [1952] 1 D.L.R. 712, 4 W.W.R. (N.S.) 241 at p. 244 (Sask. C.A.) is apposite:

It is perfectly true that . . . a party has been permitted to adduce evidence contradicting parts of the examination for discovery of his opponent put in at the trial. I still cannot understand why counsel still persist in tendering in evidence questions and answers from their opponent's examination for discovery which are diametrically opposed to their client's contention.

8. Ruling prohibiting demonstrative evidence

[107] In the course of his examination in-chief of Dr. Fields, appellants' counsel sought to refer the witness to an enlargement of the test strip produced by the NST administered on July 5, 1990. Counsel for Dr. Asher objected to its use on the grounds that (a) the enlargement was of poor quality and omitted essential details, and (b) the observations that Dr. Fields might make about the enlargement would likely differ from the observations the defendant nurses could make about the originals. Counsel for the nurses and the hospital endorsed those objections, and made the further objection that (c) Dr. Fields was precluded from testifying about the NST strip by the trial judge's ruling limiting Dr. Fields' testimony.

[108] The trial judge ruled that Dr. Fields could comment on the original NST strip, or a copy the same size as the original, but that he could not comment on the enlargement. The rationale for the ruling was that the respondent nurses did not have the enlargement, and that it would not assist the court if Dr. Fields were able to observe something on the enlargement not observable from the original.

[109] It is well established that a decision whether to admit demonstrative evidence is within the discretion of the trial judge: see Draper v. Jacklyn, 1969 6 (SCC), [1970] S.C.R. 92, 9 D.L.R. (3d) 264 and Shipman v. Antoniadis (1975), 1975 699 (ON CA), 8 O.R. (2d) 449, 58 D.L.R. (3d) 321 (C.A.). We see no basis for interfering with the trial judge's ruling.

[110] In any event, the ruling could not have affected the outcome of the trial. The original NST strip was already before the court. Dr. Fields was permitted to comment on the original NST strip and the appellants were not prevented from adducing evidence on the matter. This was not a case where a party sought to enter demonstrative evidence to assist a jury in their fact-finding function. The trial was being heard by judge alone, and the trial judge had a copy of the NST strip before him.

9. Ruling permitting cross-examination of Mrs. Kwolek

[111] Mrs. Kwolek, a registered nurse, was called by counsel for the respondent nurses and the hospital as an expert witness. The appellants objected to counsel for Dr. Asher cross-examining witnesses called by counsel for the other respondents on the ground that there was a similarity of interest between the respondent nurses, the hospital, and Dr. Asher.

[112] The trial judge ruled that counsel for Dr. Asher had the right to cross-examine Mrs. Kwolek. He stated that paras. 14 and 27 of the statement of claim were a complete answer to the objection, as the statement of claim pleaded that the medical respondents -- i.e., Dr. Asher -- were responsible for the conduct of the nurses.

[113] The right to confront and interrogate an adverse witness is regarded as a fundamental right of parties to a trial. However, in certain circumstances a party will not be permitted to put leading questions in cross-examination to a witness called by an adverse party. The Law of Evidence sets out these circumstances at p. 940:

. . . In cases where there are co-defendants with similar interests who have pleaded separately and are represented by different counsel, a trial judge has a discretion to refuse to allow counsel for one defendant to cross-examine a co- defendant's witnesses. If, however, the interests of the parties are not similar, separate counsel are usually allowed to cross-examine a co-defendant or that co-defendant's witnesses.

[114] It is necessary, then, to determine whether the respondent nurses were adverse in interest to Dr. Asher.

[115] The statement of claim pleads that the respondent doctors were responsible for the conduct of the nurses. The doctors would undoubtedly seek to establish that they were not negligent; rather, any negligence was the sole responsibility of the nurses. The nurses would undoubtedly seek to establish that they were not negligent and that any negligence was the sole responsibility of the doctors. Accordingly, based upon the appellants' statement of claim, the respondent nurses and Dr. Asher were adverse in interest.

[116] In their statement of defence, the nurses denied that the doctors were responsible for their conduct, and denied that they were negligent. The nurses stated that they had no knowledge of the negligence alleged to have been committed by the doctors. The hospital and nurses crossclaimed against the medical respondents, and relied upon the allegations contained in the appellants' statement of claim. Similarly, the medical respondents, in their statement of defence, denied all allegations contained in the statement of claim, and crossclaimed against the hospital and nurses.

[117] In view of the pleadings, the trial judge properly concluded that there was an adversity of interest and he properly allowed counsel for Dr. Asher to cross-examine Nurse Kwolek.

B. Uneven Application of Evidentiary Rulings

[118] The appellants submit that the uneven application of certain evidentiary rulings provides further indication of bias on the part of the trial judge.

1. Ruling relating to Dr. Tithecott

[119] The respondents called Dr. Tithecott, a treating physician, as a witness. Dr. Tithecott was asked questions regarding the cord gases, and the inferences he drew from them for the purpose of resuscitating Joel Marchand. He was also asked about the significance of the "marked metabolic acidosis" that Joel Marchand's cord gases displayed. Dr. Tithecott testified that the acidosis "indicated to me that the child had suffered a severe event a short time before delivery". Counsel for the appellants objected on the grounds that (a) Dr. Tithecott was being asked to give opinion evidence, (b) no notice of that opinion had been given to the appellants, (c) counsel for the respondents was obliged to comply with rule 53.03, and (d) Dr. Tithecott ought to be confined to the "four corners of his report". Appellants' counsel was particularly concerned about Dr. Tithecott giving evidence about the timing of the severe event.

[120] The trial judge allowed the examination to proceed. The appellants contend that this ruling is inconsistent with the Awad ruling. Like Dr. Awad, Dr. Tithecott was not a "rule 53.03 witness". Dr. Tithecott was called as a witness of fact, not as an expert witness. Thus, insofar as Dr. Tithecott was testifying about the facts of his own involvement, or the opinions that went to the exercise of his judgment, rule 53.03 was not engaged. We have found that the trial judge erred in applying rule 53.03 to limit the cross-examination of Dr. Awad. However, it is our view that a number of factors distinguish the situation with respect to Dr. Tithecott sufficiently to explain any difference in the manner the trial judge dealt with his evidence. The appellants had substantial notice of this area of questioning by way of: Dr. Tithecott's examinations for discovery, his responses to requests to admit, and the report that he made contemporaneously with his examination of Joel Marchand. Another distinguishing point i s that the trial judge took into account the appellants' right of reply in assessing whether there was any prejudice. In our view, there is no merit to the submission that the trial judge's ruling on this issue indicates bias or an unwillingness to apply the same standard to the respondents as he had applied to the appellants.

2. Rulings relating to Dr. Smith

[121] The appellants complain of two rulings with respect to Dr. Smith. Dr. Smith prepared three reports. The first ruling concerned his third report, filed by the respondents 10 months before Dr. Smith testified, and some four months after Dr. Manning had testified. The report dealt with different blood gas orders. The trial judge ruled that Dr. Smith could testify about his third report. The second ruling permitted counsel for Dr. Asher to ask Dr. Smith to comment on testimony given by Dr. Whyte in cross-examination. The first ruling is said to be inconsistent with the Silver ruling and the second with the Fields ruling.

[122] In our view, there is no merit to these submissions. The trial judge distinguished the Silver ruling on several grounds. It became apparent that appellants' counsel was aware that there were two different blood gas orders and could have raised the matter with Dr. Manning. Accordingly, the trial judge ruled that he was not taken by surprise and that Dr. Smith could give evidence about the contents of the third report. The trial judge also differentiated the Silver ruling from the present situation, noting that Dr. Smith's third report was delivered 10 months before the defence started. Moreover, even if something new was raised by the defence it could be addressed through the appellants' right of reply.

[123] The second ruling concerning Dr. Smith was also correct. It is well established that an expert witness can be asked to comment on the opinion of another expert: see Quantrill v. Alcan-Colony Contracting Co. (1978), 1978 1310 (ON CA), 18 O.R. (2d) 333 (C.A.).

3. Ruling relating to Dr. Eyman

[124] Dr. Eyman was called by the respondent, Dr. Asher, to give expert evidence on the issue of Joel Marchand's life expectancy. Dr. Eyman had prepared two reports on the issue of damages. The first report was dated November 12, 1993 and was prepared on the basis of materials sent to Dr. Eyman by the respondents. The second report was dated May 5, 1994 and was prepared after Dr. Eyman attended a physical examination of Joel Marchand conducted by two other physicians, and viewed four hours of videotapes of Joel Marchand. The second report was based upon Dr. Eyman's own observations and the observations of the two other physicians.

[125] During the voir dire on the foundational facts issue, Dr. Eyman was asked what materials he was sent and what materials he relied upon. He could not recall precisely what materials he relied upon. The appellants submitted that, in accordance with the foundational facts ruling, the respondents were required to prove all the documents Dr. Eyman had been given. The trial judge rejected this argument.

[126] The trial judge differentiated his ruling with respect to Dr. Eyman from his rulings with respect to Ms. Kelly and Ms. Staub. He characterized his rulings with respect to Ms. Kelly and Ms. Staub as a response to the appellants' attempts to rely upon a different set of facts from those relied upon by Ms. Kelly and Ms. Staub. In contrast, his ruling with respect to Dr. Eyman was based on the respondents having proven the same set of facts relied upon by Dr. Eyman, albeit through different means.

[127] Dr. Eyman's reports appeared to be based on factual observations; for example, whether Joel Marchand could crawl. Observations of this nature would be capable of proof through various sources. It appears to us that in the Eyman ruling, the trial judge characterized the appellants' position concerning Ms. Kelly's and Ms. Staub's reports as an attempt to rely upon "X, Y, Z" rather than "A, B, C" where the experts had relied upon "A, B, C" in preparing their reports. We have already found that to the extent the trial judge limited the right of the appellants to establish the same foundational facts relied on by Ms. Kelly and Ms. Staub through different means, he erred. However, as the Eyman ruling indicates, the trial judge was endeavouring to be consistent. If he erred in the application of the Kelly and Staub rulings, any error he committed falls well short of an indication of bias or a predisposition to favour the respondents.

C. Conclusion on the Evidentiary Rulings

[128] We conclude that the evidentiary rulings of the trial judge and the manner in which they were applied do not support the contention that the appellants were denied the opportunity to fairly present their case, nor did these rulings create a reasonable apprehension of bias on the part of the trial judge. The trial judge's rulings were carefully considered and reflect, in our view, a sincere and diligent effort to conduct a fair trial. We have concluded that virtually all of the impugned rulings were correctly decided. The very few errors we have identified were inconsequential and even viewed cumulatively did not result in any significant prejudice to the appellants. Accordingly, this ground of appeal is dismissed.

III. DID THE TRIAL JUDGE'S CONDUCT OF THE TRIAL RAISE A REASONABLE APPREHENSION OF BIAS?

[129] The appellants' main contention on the appeal is that the trial judge's conduct of the trial raised a reasonable apprehension of bias towards them. They submit that throughout the trial defence counsel were insulting, hostile, discourteous and rude to their counsel, Mr. Wunder, and indeed to Mrs. Marchand, and yet the trial judge condoned this behaviour, never restraining or controlling it. The appellants submit that, by itself, the trial judge's refusal to restrain defence counsel raises a reasonable apprehension of bias. The appellants also submit that the trial judge showed hostility to Mr. Wunder, that he interfered in Mr. and Mrs. Marchand's presentation of the case, and that, in his reasons, he unfairly judged the credibility of Mrs. Marchand. All of this conduct, the appellants contend, further supports their claim of judicial bias.

[130] The trial judge's conduct, which the appellants submit cumulatively amounts to judicial bias, can conveniently be discussed under the following six categories, of which the first is by far the most serious:

(1) the trial judge refused to restrain defence counsel's repeated attacks on Mr. Wunder's integrity and competence;

(2) the trial judge refused to control defence counsel's inappropriate treatment of Mrs. Marchand;

(3) the trial judge prevented the appellants from fairly presenting their case by his one-sided interventions;

(4) the trial judge on one occasion talked with defence counsel in the absence of appellants' counsel;

(5) the trial judge unfairly criticized Mr. Wunder; and

(6) the trial judge showed antipathy to Mrs. Marchand in his reasons for judgment.

[131] Before considering this ground of appeal, we will briefly review the principles that apply to a claim of judicial bias. These principles, now well established, have recently been summarized by the Supreme Court of Canada in R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484, 118 C.C.C. (3d) 353. They are as follows:

1. All adjudicative tribunals owe a duty of fairness to the parties who appear before them. The scope of the duty and the rigour with which the duty is applied vary with the nature of the tribunal. Courts, however, should be held to the highest standards of impartiality.

2. Impartiality reflects a state of mind in which the judge is disinterested in the outcome and is open to persuasion by the evidence and submissions. In contrast, bias reflects a state of mind that is closed or predisposed to a particular result on material issues.

3. "Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. If the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render the trial unfair." (at p. 524 S.C.R.)

4. The test for bias contains a twofold objective standard: the person considering the alleged bias must be reasonable and informed; and the apprehension of bias must itself be reasonable. In the words of de Grandpré J. in Committee for Justice and Liberty v. Canada (National Energy Board), 1976 2 (SCC), [1978] 1 S.C.R. 369 at p. 394, 68 D.L.R. (3d) 716, approved of by the Supreme Court of Canada in S. (R.D.), supra:

[T]he apprehension of bias must be a reasonable one, held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. . . . [The] test is "what would an informed person, viewing the matter realistically and practically -- and having thought the matter through -- conclude. . . ."

5. The party alleging bias has the onus of proving it on the balance of probabilities.

6. Prejudgment of the merits, prejudgment of credibility, excessive and one-sided interventions with counsel or in the examination of witnesses and the reasons themselves may show bias. The court must decide whether the relevant considerations taken together give rise to a reasonable apprehension of bias.

7. The threshold for a finding of actual or apprehended bias is high. Courts presume that judges will carry out their oath of office. Thus, to make out an allegation of judicial bias requires cogent evidence. Suspicion is not enough. The threshold is high because a finding of bias calls into question not just the personal integrity of the judge but the integrity of the entire administration of justice.

8. Nonetheless, if the judge's words or conduct give rise to a reasonable apprehension of bias, it colours the entire trial and cannot be cured by the correctness of the subsequent decision. Therefore, on appeal, a finding of actual or apprehended bias will ordinarily result in a new trial.

[132] The respondents deny that either the words or the conduct of the trial judge gave rise to a reasonable apprehension of bias. They submit, in the alternative, that the appellants waived their right to claim judicial bias and should be precluded from doing so on appeal. In support of their submission on waiver, they say that an allegation of bias should be raised at the first available opportunity, and that instead the appellants waited until 19 months after the completion of the evidence and three months after the release of the reasons for judgment. They also point out that the appellants opposed four mistrial motions brought by the defence during the trial and that the appellants insisted the trial judge hear their own motion for a mistrial (because of the alleged perjury of a witness) even while their motion to recuse the trial judge for bias was pending. [See Note 2 at end of document] It is unnecessary for us to consider this alternative submission of waiver in the light of our conclusion that the appellants' claim of judicial bias fails on its merits.

[133] We therefore turn to the appellants' allegation of judicial bias, applying the legal principles we summarized to the six categories of bias raised by the appellants.

1. The Trial Judge Refused to Restrain Defence Counsel's Repeated Attacks on Mr. Wunder's Integrity and Competence

[134] This is the appellants' main submission in support of their allegation of judicial bias. They submit that throughout the 165 days of trial defence counsel repeatedly accused their counsel, Mr. Wunder, of manipulating evidence; of deliberately misinforming witnesses and feeding them answers through objections during cross-examination; of deliberately flouting, subverting and ignoring the rules of practice; and of showing contempt for the trial judge and his rulings. They contend that the trial judge failed to restrain defence counsel's repeated attacks on Mr. Wunder's integrity and competence, and by not restraining it, the trial judge condoned it and lent the weight of his office to the defence position. Thus, the appellants argue that the trial judge's failure to restrain defence counsel's attacks on Mr. Wunder gave rise to apprehended bias.

[135] The record shows that from early on in the trial, any degree of trust between Mr. Wunder, on the one hand, and Mr. Tait, counsel for Dr. Asher, and Mr. Liswood, counsel for the hospital and nurses, on the other, had completely vanished, to be replaced by a level of rancour and hostility rarely, if ever, seen in an Ontario courtroom. The record also amply supports the appellants' contention that Mr. Tait repeatedly attacked Mr. Wunder's integrity and competence. Comments about counsel that have no place in any courtroom infected this trial from start to finish. The following examples should adequately give the flavour of what took place.

[136] Mr. Tait accused Mr. Wunder of "a complete lack of integrity"; of cheating and intentionally defying the rules of practice; of using the right to object to cross-examination "to suggest answers to every witness who has come into this courtroom"; of abuses of the Rules of Civil Procedure; of using and abusing solicitor-client privilege as a "mask for deception", to "conceal misconduct", "as a manipulative device", "to conceal the devices by which the evidence of witnesses is manipulated" and as a "shield for deceit"; of "manipulating" the evidence and facts; of deliberately misinforming an expert witness; of "flatly lying" to the court; of deliberately misleading the court, showing contempt for the court, defying and deceiving the court about the evidence of Dr. Whyte; of "trickery" and "sleight of hand"; and of committing an outrage on the court. Mr. Tait told the trial judge that he (Mr. Tait) [was] wrong to assume Mr. Wunder was competent and would comply with the Rules of Civil Procedure, and he ev en suggested that Mrs. Marchand made a mistake in choosing Mr. Wunder as her counsel.

[137] The following two passages typify the tenor of Mr. Tait's verbal attacks on Mr. Wunder:

I don't want to leave today . . . without at least indicating to Your Honour, the sense of total outrage, that a deceitful, legal mind could possibly invent so preposterous a distortion of the judicial process; a complete violation of every principle of Ashmore that he has so freely adopted.

This is a profound disgrace. I invite Your Honour to reread Ashmore tonight and I invite you to tell Mr. Wunder to take this argument to the Court of Appeal if he wishes, but it will not be heard in this court.

It wasn't for me to say that I disagreed with the ruling. We accept it and we went on. But to come forward with this kind of scurrilous manipulation, of which -- of what, for Mr. Wunder was essentially a break, a break that he so genuinely didn't expect that he invited you to rule last week.

. . . This is scurrilous and this is disgraceful and I ask Your Honour not to countenance it.

Mr. Wunder has abused the rules of practice and his obligations as counsel in respect of this particular witness at every turn. And the rules of practice and the relief they provide for honest counsel are not there as an excuse to permit unchecked grossly improper manipulation of the whole litigation process.

[138] Mr. Tait was not alone in his criticisms of Mr. Wunder. Mr. Liswood, too, maligned the appellants' counsel. He accused Mr. Wunder of manipulating, abusing and making a mockery of the judicial system; of using the Rules of Civil Procedure as an "excuse to permit unchecked grossly improper manipulation of the whole litigation process"; of "flagrantly subverting" the Rules of Civil Procedure; of "suppressing" facts and information from the defence; of "contrivance and manipulation" in the delivery of expert reports; of continually withdrawing from his commitments; and of violating Rule 10 of the Rules of Professional Conduct by knowingly attempting to deceive the court and by knowingly misstating the contents of documents.

[139] We do not intend to suggest that this conduct was all one-sided. On occasion, Mr. Wunder acted in a similar way. But Mr. Tait and Mr. Liswood must accept most of the responsibility for conduct that by any reasonable standards of civility was unacceptable for any counsel, let alone senior counsel who should know better.

[140] In this court, Mr. Ortved and Mr. Curry, who acted for Dr. Asher, made no attempt to defend Mr. Tait's conduct or to substantiate any of Mr. Tait's many allegations against Mr. Wunder. Instead, they candidly acknowledged that Mr. Tait's conduct toward Mr. Wunder had fallen below an acceptable standard. Mr. Liswood also acknowledged that his own conduct at trial had been unacceptable. We have little doubt that the appellants must have found the repeated maligning of their counsel unsettling, to say the least.

[141] The unprofessional conduct of counsel is a matter for the Law Society of Upper Canada. The issue before us, however, centres not on the conduct of counsel but its impact on the fairness of the trial. Our focus centres on the conduct of the trial judge. The question we must answer is whether an informed person viewing the matter realistically would conclude that the way the trial judge dealt with defence counsel's attacks on Mr. Wunder created a reasonable apprehension of bias and thus deprived the appellants of a fair trial. We are not persuaded that the trial judge's conduct supports a finding of bias.

[142] There are three answers to the appellants' submission that a reasonable apprehension of bias arises from the trial judge's refusal to restrain or control defence counsel. First, the trial judge did not remain silent about counsel's conduct. He intervened in the trial. On the fifteenth day of the trial, November 16, 1993, Mr. Tait accused Mr. Wunder of manipulating the schedule of witnesses to give one of the appellants' experts, Dr. Fields, time to repair his evidence. Mr. Wunder objected to this characterization of his conduct. The trial judge responded:

Look, he says a lot of things and you say a lot of things. I do not pay a whole lot of attention to what you are saying on those matters. Now, let us just proceed with this.

[143] The following day, Mr. Tait protested that in his 27 years of practice he had "never been so badly treated by any other counsel". He added that he had "never met the equal of Mr. Wunder for ignoring his obligations". This time, the trial judge replied at length, in an attempt to change the atmosphere of the trial. He urged counsel to stop their "interminable fighting" and he emphasized the need for civility in the courtroom:

Let me say this that it struck me last night as I reflected upon what I considered to be a rather lengthy day. We had some rather strenuous debates about certain matters that we should never lose sight of why we are here. It strikes me that what we are here to do is to try this issue fairly, make sure we try it fairly to all parties, and to achieve that there has to be full and complete disclosure. Having practiced in those days when you did not make disclosure unless you had to, I know what it is like. But those are not what we are doing today. These cases are far too complex for that.

I am also struck, as I read in the latest issue of the Canadian Lawyer, somebody was interviewing the former Attorney General, Ian Scott, and he said that the only thing that makes litigation is good manners. Somehow there's a lack of manners in this trial and I do not suggest to point a finger at anyone. I think it is important, we are going to be here for another few weeks. We are into our fifth week and there is no reason why we cannot all act like gentlemen in the courtroom. We can stop sniping at each other. If anybody thinks that there has been prejudice as a result of a lack of disclosure, they can politely argue strenuously, but politely argue rule 53.08 and 31.07, all deal with the matter. If anybody thinks that as a result of the lack of disclosure that they have been prejudiced and they want an adjournment, I am going to grant it. I make it abundantly clear right now that I am going to do my utmost to make sure that this matter is fairly dealt with. We have a plaintiff here who is entit led to have her action heard before this court. She wants to have it heard whether she is right or wrong. We will not know until the case, but she will have heard, and so will Dr. Asher and so will the nurses. They are entitled to that. So I just urge you all, let us get along. Let us try and move along with this case. It is going to be long enough without this interminable fighting.

Let us move on but let us not conduct ourselves in a manner in which it really does not place the legal profession in a good light. We have a tough enough issue as it is to try now. Let us move forward.

[144] Unfortunately, the trial judge's exemplary words seemed to have had little effect. Soon after, Mr. Tait again disparaged Mr. Wunder's ability:

. . . Mr. Wunder is a counsel who lectures the profession and writes books about trial preparation. He's a senior counsel. He's entitled to style himself a Queen's Counsel and while I have a dim view as to his appreciation of the contents of the Rules of Practice, that is no excuse for adjourning a trial.

[145] The appellants complain that though the trial judge's intervention on November 17, 1993 was salutary, after that day and indeed for the rest of the trial, the trial judge never tried to restrain defence counsel. This complaint is not entirely correct because on February 9, 1994, during an interchange with Mr. Percival (acting for Mr. Wunder on a motion), the trial judge again commented on counsel's conduct:

Mr. Percival: I am sorry, I wish I could be more helpful to you on that issue, but as I said, I felt that that was the address because I saw, I thought to a certain extent there was some very, I thought, intemperate and rather strong language utilized by Mr. Liswood, condemning the conduct of Mr. . . .

The Court: There has been a lot of strong language in this trial . . .

Mr. Percival: Well, I'm not going to try to get into it.

The Court: . . . Mr. Percival on both sides, and I keep reminding counsel of what the former Attorney General said, that only good manners makes litigation bearable.

Mr. Percival: I understand.

The Court: And that falls on deaf ears from time to time in this trial.

Mr. Percival: And I know that this has been a very difficult trial. I've seen some of the transcripts. I certainly have not had the opportunity to do it all, and as I said to you before, this has been a very difficult case I think for everybody, quite apart from your Honour.

[146] Although the appellants say that the trial judge should have done more, his observations both in November 1993 and in February 1994 at least show that he was not oblivious to what was taking place and that he tried to control counsel's conduct.

[147] Second, the failure of the trial judge to do more to restrain or control defence counsel does not automatically indicate judicial bias. We recognize that other trial judges might well have dealt with the acrimony in the courtroom differently, and perhaps more effectively. This trial judge chose to be relatively passive, indeed, probably too passive. He was well aware of the acrimony and chose largely to ignore [it].

[148] Just as civility in the courtroom is very much the responsibility of counsel, it is also very much the responsibility of the trial judge. It is [a] shared responsibility of profound importance to the administration of justice and its standing in the eyes of the public it serves. Unfortunately, we have no doubt that the failure to satisfactorily discharge this responsibility in this case tarnished the reputation of the administration of justice. This case underlines the importance being given by leaders of the bench and bar to improving civility in the courtroom.

[149] However for this court, the question must be whether in light of what went on in the courtroom there was a reasonable apprehension of bias on the part of the trial judge, thus depriving the appellants of a fair trial. Nothing in the trial record or in the trial judge's reasons suggests that he condoned defence counsel's conduct or lent the weight of his office to the defence position. A review of the transcripts establishes that counsel's conduct had no effect on the trial judge's efforts to fairly judge the case before him. The trial judge's reasons are thorough and present a fair and balanced consideration of all the contentious issues in the trial. In short, we do not think that an informed and reasonable observer looking realistically at the trial unfolding would apprehend from the trial judge's conduct that he was biased, or unfair in adjudicating this case.

[150] Third, and admittedly a less important answer to the appellants' submission, is that most of the acrimonious language and most of the attacks on Mr. Wunder occurred during submissions on motions, not during the presentation of evidence. This, in our view, is one reason why defence counsel's conduct had no impact on the appellants' fair presentation of their case.

[151] To conclude this ground of appeal, although we deplore the conduct of defence counsel, the appellants have not shown that the way the trial judge dealt with defence counsel's attacks on Mr. Wunder gave rise to a reasonable apprehension of bias.

2. The Trial Judge Refused to Control Defence Counsel's Inappropriate Treatment of Mrs. Marchand

[152] The appellants submit that defence counsel's conduct towards Mrs. Marchand was inappropriate and went unchecked by the trial judge. The appellants rely on five examples of inappropriate conduct. The first two examples show defence counsel in an unflattering light. However, none of the examples suggest judicial bias. We will deal briefly with each of them:

(a) During Mrs. Marchand's first day of testimony, Mr. Tait commented to Mr. Liswood, "She's a liar." This unfortunate comment was said loud enough for Mrs. Marchand to hear it and loud enough for the court reporter to record it. However, the trial judge did not hear the comment and, once apprised of it, he neither condoned nor accepted it.

(b) The appellants submit that Mr. Tait and Mr. Liswood taunted Mrs. Marchand with deprecating facial expressions from the counsel table. The record suggests that defence counsel rolled their eyes, smiled and laughed out loud during parts of Mrs. Marchand's cross-examination. Defence counsel's conduct again was unprofessional but, in our view, did not affect the fairness of the trial.

(c) The appellants contend that Mr. Tait taunted Mr. and Mrs. Marchand by gratuitously reminding them again and again that their son Joel had almost no brain tissue. We find no merit in this contention. Throughout the trial, Mr. Tait accepted that Joel Marchand had suffered a tragic injury. In our view, neither the phrasing nor the tone nor the content of his cross-examination of Mr. and Mrs. Marchand was objectionable. The issues in the case required the defence to explore Joel's brain function, his ability to see and whether he could play with a computer. As the trial judge pointed out to Mrs. Marchand, questioning on these issues was relevant to Joel's life expectancy and to the appellants' damages claim. The absence of any objection to this questioning from the appellants' counsel is perhaps the best evidence that the cross-examination was not unfair.

(d) The appellants also submit that on cross-examination defence counsel harassed Mrs. Marchand for being unable to remember her last menstrual period in September 1989. The defence undoubtedly conducted a tough, aggressive cross- examination but, in our view, not a harassing cross- examination. Joel's expected due date and its relationship to Mrs. Marchand's menstrual period was an important issue at trial, and Mrs. Marchand had previously given five different answers about when her last menstrual period occurred. Again, Mr. Wunder did not object either to the tone or to the length of the cross-examination on this issue. In a trial where both sides made frequent objections and interjections, the lack of an objection on this issue is a good indicator that this complaint now made has little substance.

(e) Finally, the appellants submit that defence counsel insulted and belittled Mrs. Marchand during their cross- examination of her. As we have said, the cross- examination was at times aggressive, apparently even loud. But we do not consider it to have been unfair. Mr. Wunder did at one point ask the trial judge to ask Mr. Tait to "keep his tone down and not be rude to the witness". The trial judge refused, commenting that he did not think Mr. Tait had been rude but that if Mrs. Marchand was being intimidated he would intervene. In the light of this observation and our review of the entire cross-examination of Mrs. Marchand, we cannot find anything in the words or the conduct of the trial judge that would reasonably suggest that he was biased.

3. The Trial Judge Prevented the Appellants from Fairly Presenting Their Case by His One-Sided Interventions

[153] The appellants submit that the trial judge intervened excessively during Mr. Wunder's cross-examination of witnesses and by doing so, prevented the appellants from fairly presenting their case. Before discussing the interventions the appellants rely on, we will briefly review the legal principles that apply to this submission.

[154] A trial judge is not required to sit mute and listen to evidence without commenting or interjecting. A trial judge has the right, indeed the duty, to intervene to clarify and understand the evidence or to control the trial, provided that in intervening, the trial judge does not interfere with the fair presentation of the evidence and does not prejudge the issues in dispute or the credibility of the witnesses. The limits on the trial judge's right to intervene were concisely set out by Evans J.A. in Majcenic v. Natale, 1967 267 (ON CA), [1968] 1 O.R. 189 at p. 203, 66 D.L.R. (2d) 50 (C.A.):

. . . I can appreciate that on occasion it is not only desirable but necessary that the trial Judge question the witnesses for the purpose of clarification of the evidence and I do not consider that he is solely an umpire or arbitrator in the proceedings. There is a limit however to the intervention and when the intervention is of such a nature that it impels one to conclude that the trial Judge is directing examination or cross-examination in such a manner as to constitute possible injustice to either party, then such intervention becomes interference and is improper.

[155] The appellants submit that the trial judge in this case crossed the permissible limits of intervention. We disagree. The appellants gave several examples of what they claimed were one-sided interventions by the trial judge during Mr. Wunder's cross-examination. These examples were put forward to show that the trial judge unfairly intervened to articulate a defence position or that he disrupted the appellants' presentation to a degree that raised a reasonable apprehension of bias. We will review the most salient examples, most of which were not objected to at the time and none of which, in our view, supports the appellants' submissions.

[156] The appellants point to an intervention by the trial judge during the cross-examination of Dr. Asher. Mr. Wunder was trying to impeach Dr. Asher on his discovery evidence, and defence counsel objected that Mr. Wunder had not done so properly. The trial judge intervened, appropriately, to point out that Mr. Wunder had not covered the topic on Dr. Asher's discovery:

The Court: But you did not ask.

Mr. Wunder: I'm sorry, sir?

The Court: You did not ask him, how much did you take out after.

Mr. Wunder: Well . . .

The Court: I think the important point is, Mr. Wunder, you said, "You didn't tell me this on discovery."

Mr. Wunder: Yes, sir.

The Court: And he did tell you about taking them about after and I do not appreciate you suggesting to a witness that "you don't tell me something on discovery" when he does in fact tell you something on discovery.

Mr. Wunder: Your Honour, well -- you are the final arbiter of that, as to whether or not it's . . .

The Court: No, but you were -- you were suggesting to this witness that this evidence about him taking the clots out of the uterus was brand new evidence which you had never heard of before.

[157] Mr. Wunder eventually accepted that he had not adequately dealt with the topic on discovery when he said: "And I guess I can be faulted for not asking you in greater detail the quantity or how it was removed."

[158] The appellants also point to an incident that arose during an argument over the late disclosure of Dr. Kirsch's medical records. Defence counsel suggested an adverse inference might be drawn on a particular point. Mr. Wunder questioned what the adverse inference might be. Instead of allowing defence counsel to answer, the trial judge responded:

The Court: Well, suppose that the adverse inference he proposes to advance is that I find as a fact that Barbra suffered severe pain.

Mr. Wunder: If that is my friend's position, if you articulate it adequately I would like to hear it from him.

Mr. Liswood: Joe, may I . . .

Mr. Wunder: Excuse me, wait, could I have Mr. Colangelo -- I'd like to know from Mr. Colangelo . . .

The Court: Well, he would extend that I would think. On his argument he would extend it that that would alter the opinions of Dr. Fields, Manning, Johnson. He would say the same thing with regard to the use of the hands and scooting.

Mr. Wunder: I would just like my friend to articulate what adverse inference that he is talking about so that I can meet the argument, sir, and appreciate his argument.

The Court: Well, I am not absolutely sure that he has to because what he is saying is that that is a possibility and he says that I cannot deal with that until we get to the end of the trial.

Mr. Wunder: I understand, sir. He did not complete the sentence. He is going to argue an adverse inference. I would like to know what adverse inference, that's all, from him.

The Court: Well, he is going to argue it at some later date.

[159] In our view, the trial judge did not act improperly in intervening to set out the defence position. This was probably done with a view to moving the trial along. Moreover, counsel for all the parties fully argued whether an adverse inference should have been drawn without any inappropriate intervention by the trial judge.

[160] The appellants also point to an intervention by the trial judge during Mr. Tait's cross-examination of the appellants' expert, Dr. Fields, on his qualifications to give opinion evidence. Mr. Wunder objected to the questioning and the trial judge responded:

Mr. Wunder: Your Honour, aren't all these questions really designed to go to a matter of weight? The doctor is really qualified to give opinion evidence.

The Court: I suspect that I may hear some argument as to the ability of this witness, or whether or not I should allow this witness to give expert evidence as to the standard of care which might be expected in Ontario if he is not familiar with it. He makes a bald statement. He makes a bald statement as I understand it. I am only anticipating what I think Mr. Tait might say, that he makes a bald statement that the standard of practice is the same.

Mr. Wunder: Well, the . . .

The Court: That is quite a different question than saying that he does not have expertise.

Mr. Wunder: Expertise evidence is expert evidence received by courts without regard to geographical barriers, and often . . .

The Court: Well, let us let Mr. Tait press on and we will come back to you, Mr. Wunder, when we argue this whole issue.

Mr. Wunder: Thank you, sir.

The trial judge's comments are innocuous and no possible apprehension of bias can arise from them, particularly because the trial judge permitted Dr. Fields to give expert evidence.

[161] Finally, the appellants submit that the trial judge especially interfered with their presentation of the case during the cross-examination of Dr. Asher on his withdrawal of the admission of oligohydramnios. A lengthy argument took place during this cross-examination, much of it over an excerpt from a textbook on obstetrics. During the argument, covering 44 pages of transcript, the trial judge intervened many times and put a few questions to the witness. However, as we read these pages, the trial judge was simply trying to control, as he was entitled to do, a heated exchange between counsel. As well, the few questions the trial judge asked were not obviously helpful to the defence.

[162] The appellants cite other examples from Mr. Wunder's cross-examination, which they say also demonstrate that the trial judge's interventions were one-sided. We do not think that individually or collectively these other examples support the appellants' claim of judicial bias. The trial judge intervened when needed in order to try to control this difficult trial and to understand the evidence, including intervening during defence counsel's cross-examination.

4. The Trial Judge Spoke with Defence Counsel in the Absence of Mr. Wunder

[163] On one occasion in April 1995, respondents' counsel telephoned the trial judge to find out whether he would sit two days previously scheduled as non-sitting days to accommodate an out-of-town witness. Mr. Wunder was not party to the call, apparently because he was ill and was home recovering. The appellants now contend that the trial judge exhibited bias by speaking to respondents' counsel alone.

[164] We see no merit in this contention. The telephone call was limited to scheduling. Moreover, it was disclosed immediately to Mr. Wunder in writing and the next day in open court. Mr. Wunder accepted the trial judge's explanation for the telephone call.

5. The Trial Judge Unfairly Criticized Mr. Wunder

[165] The appellants submit that not only did defence counsel unfairly criticize their counsel, so too did the trial judge. The contend that the trial judge showed "a deeply critical attitude, perhaps outright hostility" toward Mr. Wunder. In our view, the trial record does not substantiate this contention. We will refer briefly to the two examples relied on by the appellants during oral argument to show that their contention has no merit.

[166] The appellants pointed to an exchange between the trial judge and Mr. Wunder over the contents of expert reports, which took place during the examination-in-chief of the appellants' expert, Dr. Geisler. The exchange was as follows:

Mr. Wunder: Your Honour, I cannot believe that my friends' cross-examination is limited to and dependent upon what is in the plaintiff's reports. I just can't believe it. Surely they bring much more to this trial than that and surely they can't complain that they chose not to cross-examine people on issues that relate clearly to life expectancy.

The Court: Now wait a second. Let me get something straight, Mr. Wunder. If I am defending a case and I have your medical reports which identifies the areas that your experts are going to talk on or give evidence on or render opinions on, why would I venture into areas that could be just a mine field, to discuss with the doctor when I know that your other experts are allowed to give evidence about those matters?

Mr. Wunder: Because under our jurisprudence every expert is allowed to expand on his report.

The Court: Well because you see -- where you and I are parting company is that you want to play by the rule -- sort of the ambush rules as your experts get in the box . . .

Mr. Wunder: I resent that remark, Your Honour.

The Court: Well, you know, that is what it is coming down to.

Mr. Wunder: That's what my friends have persuaded you it's coming down to, sir.

The Court: No, they have not persuaded me of anything, Mr. Wunder. I will make up my own mind.

We see nothing unfairly critical in the trial judge's comments, which indeed reflect our views on the issue being debated.

[167] The appellants also rely on an exchange between the trial judge and Mr. Wunder over the "Colebrook ruling", which took place during the cross-examination of Dr. Asher. The relevant part of what was a rather innocuous exchange is as follows:

The Court: You keep saying burdened with the ruling in Colebrook. I am satisfied that the ruling, the Colebrook Number Two Ruling is correct. You say burdened with it. I would have thought you would have known that. Maybe you did not know that principle.

Mr. Wunder: I certainly didn't, Your Honour.

The Court: Well, there you go.

Mr. Wunder: If I may continue my representations to Your Honour. Here is a statement by you and by me. One, that I didn't want to be taken to vouch for the truthfulness of what Dr. Asher says and I wanted to be able to challenge his credibility. So that was clearly stated on the record. And secondly, you assuring me that I would be able to cross- examine him on that correction, as you said, almost forever. Now . . .

The Court: And you have got that right.

Mr. Wunder: I'm sorry, Your Honour. When someone has a right to cross-examine, Your Honour, you recall from Sopinka, where they lead the simplest fact, one can cross-examine on all issues and I want -- I want to exercise that right. We've been on that before. Do you need the reference from Sopinka, sir?

The Court: No. I know what Sopinka says.

Mr. Wunder: I'm sure you do, sir.

The Court: But you are talking about having read something into the record, making it part of the plaintiff's case, and then are you entitled to cross-examine the author of that statement that you read into the record to prove that it is not true? You and I seem to part company on that. You seem to think that you can. I have said that you cannot.

Again, we find nothing unfair in the trial judge's observations, and certainly none of his observations reflect any animosity or hostility toward Mr. Wunder.

[168] As we have said before, the trial judge presided over a long and difficult trial, marked by open hostility and lack of trust among counsel, and by frequent interruptions by all counsel to the flow of evidence. The trial judge cannot be criticized, let alone be found guilty of judicial bias, for his occasional mild rebuke to counsel. We add that those occasional rebukes were quite evenly distributed throughout the trial and among all trial counsel. The appellants' claim that the trial judge showed "outright hostility" to Mr. Wunder is not substantiated on this record. In sharp contrast to this claim, the trial judge praised Mr. Wunder's dedication to his clients' case, in a ruling on June 3, 1994 dismissing a defence motion to refer Mr. Wunder's conduct to the Official Guardian for review:

I assume that Mr. Liswood and Mr. Colangelo are suggesting that Mr. Wunder who acts on behalf of the Litigation Guardian, is not protecting the best interests of Joel Marchand and accordingly his conduct of this action on behalf of Joel Marchand required review by the Official Guardian.

This trial commenced on October 18th, 1993 and I am told that as of this day, the court has been convened approximately 90 days and the Plaintiffs' case is not complete. I am doubtful that the Plaintiffs' case will be completed by the end of June 1994. Mr. Wunder has appeared at trial on all of the days that court has been convened and although I have not agreed with all of his submissions or the manner in which parts of the Plaintiffs' case has been presented, it would be unfair of me prior to hearing all of the evidence to second guess Mr. Wunder on the presentation of the Plaintiffs' case. Mr. Wunder has been a dedicated counsel who has attempted to present his clients' case in a manner which he feels is most favourable to his client. It would be wrong for me at this time in this trial to say that Mr. Wunder has not acted in the best interests of his clients. In my opinion, the actions of Mr. Wunder in this trial indicate that he perceives that his strategy in presenting his clients' case is in the best interests of his clients and at the end of the trial when I have heard all of the evidence, he may be right.

Mr. Wunder enjoys an exceedingly high reputation in the person injury field in Ontario and I must take his reputation of excellence into account when I consider the Motion of the Respondents to have this matter referred to the Official Guardian for review. There is absolutely no doubt in my mind that Mr. Wunder has dedicated himself to the presentation of this action and the suggestion that his conduct of this action should be reviewed by the Office of the Official Guardian is totally unfounded and is not warranted in this action. I want the record to indicate that although I have not agreed with many of the submissions of Mr. Wunder, and have ruled against him on some occasions in this trial, I see no reason to alter my views that Mr. Wunder is attempting to act in the best interests of his clients and perceives that his actions are in the best interests of his clients.

6. The Trial Judge Showed Antipathy to Mrs. Marchand in His Reasons for Judgment

[169] The appellants submit that the trial judge's reasons reflect his antipathy towards Mrs. Marchand. They argue that the trial judge rejected her evidence except where it bolstered the respondents' defence abruption theory and that he suggested in his reasons Mrs. Marchand "sought success in this case in priority to Joel's well-being". The appellants gave three examples of the trial judge's alleged antipathy. We will briefly review each example. None of them supports the appellants' submission.

[170] First, the appellants point to the trial judge's discussion of Joel's life expectancy. In that discussion, the trial judge expressed reservations about Mrs. Marchand's beliefs concerning her son's abilities and her reaction to professional advice for Joel's care.

[171] The trial judge thoroughly considered the question of Joel's life expectancy, devoting nearly 200 pages of his reasons to it. He praised Mrs. Marchand as a devoted, loving and caring mother who was trying to do the best for her son. The trial judge, however, was concerned about the divergence between Mrs. Marchand's evidence and the expert evidence, especially on the key issue of Joel's mobility. On that issue, everyone accepted the importance of the evidence of Dr. Richard Eyman, a defence expert in epidemiology and biostatistics, who had developed a scale to predict life expectancy based on physical skills. In assessing Joel's mobility, the trial judge took into account the optimistic beliefs expressed by Mrs. Marchand and two of her friends, and compared them with the 41/ 2 hours of videotapes of Joel, the evidence of Joel's physiotherapist and the evidence of a doctor who participated in the defence medical (examination of Joel).

[172] The trial judge concluded that he could find no acceptable evidence that Joel could crawl, scoot or roll, which are key Eyman criteria. The trial judge was concerned that the appellants' efforts to suggest otherwise had their genesis in the Eyman criteria, a concern that was heightened by the apparently overstated information Mr. and Mrs. Marchand gave to Dr. MacGregor, who assessed Joel's mobility just before trial. The beliefs that Mrs. Marchand maintained about Joel's ability are entirely understandable, but the trial judge was entitled to discount those beliefs when they clashed with the expert evidence. In our view, the trial judge's unwillingness to accept Mrs. Marchand's evidence on Joel's mobility does not reflect antipathy toward her but a fair weighing of all the evidence presented to him.

[173] The second example that the appellants rely on is the trial judge's finding on reduced fetal movements. The appellants argued at trial that Dr. Asher was negligent because he failed to tell Mrs. Marchand to count her baby's movements. This argument could succeed only if the evidence showed a significant reduction in fetal movements. There was no such evidence. The trial judge accepted Mrs. Marchand's testimony that some reduction in fetal movements had occurred but he did not elevate her testimony to support a finding of significant reduction. This does not substantiate a claim of bias.

[174] Finally, the appellants complain that the trial judge accepted Dr. Kirsch's evidence about a discussion he had with Mrs. Marchand after Joel was born. Dr. Kirsch said that during an office assessment Mrs. Marchand told him that at the time of abruption she had suffered pain concurrently with a fall in the fetal heart rate. This evidence was adverse to Mrs. Marchand's interests and she was not asked about it in examination-in- chief or in re-examination. Nonetheless, the trial judge accepted Dr. Kirsch's evidence. Doing so cannot be equated with antipathy towards Mrs. Marchand.

[175] Overall, we are satisfied that the evidence reasonably supports the trial judge's findings of credibility. Mrs. Marchand overstated her evidence, albeit understandably, and the trial judge was justified in concluding that her evidence did not withstand scrutiny.

7. The Cumulative Effect

[176] The appellants submit that the trial judge's conduct, as described in the six categories above, cumulatively amounts to judicial bias. We reject this submission.

[177] We have dealt with the appellants' submissions relating to individual complaints in each of the six categories and found that none of the conduct complained about established judicial bias. However, the principles in S. (R.D.) call for a consideration of the cumulative effect of the allegations of bias. For this reason, we must consider whether the totality of the appellants' complaints gives rise to a reasonable apprehension of bias. We do not think that they do.

[178] In our opinion the relentless acrimony between counsel in this complex and lengthy case did not prevent the trial judge from conducting and judging the case fairly and thoroughly. We are satisfied that a reasonably informed person, observing the trial judge's conduct during the entire trial and reading his reasons for judgment, would have no difficulty in concluding that he remained impartial and that he demonstrated no actual or apprehended bias.

[179] We therefore also dismiss this ground of appeal.

IV. COSTS

[180] The trial judge awarded the respondents their party- and-party costs of the trial, which he fixed in the total amount of $2,154,447.85 ($1,233,791.25 payable to Dr. Asher and $920,656.60 payable to the other respondents). The trial judge ordered that O.H.I.P. pay a small portion of those costs and the appellants the remainder. He also dismissed a defence motion to have Mr. Wunder pay 70% of the cost award.

[181] The appellants appeal the costs order. They submit that we should deny the respondents their costs of the trial even if we dismiss the appellants' appeal. In their factums filed on appeal, the respondents sought to maintain the trial judge's costs award. In oral argument, however, counsel for all respondents undertook not to pursue the appellants for the costs of the trial and stated that the respondents were not seeking costs of this appeal. In light of this concession and the tragic event that led to this case we think it appropriate to vary the costs order at trial to provide that the appellants have no obligation for the respondents' costs.

V. CONCLUSION

[182] For the foregoing reasons, paras. 2 and 3 of the judgment at trial are set aside, to be replaced by an order that the dismissal of the action is without costs. This appeal is dismissed without costs.

Order accordingly.

Notes

Note 1: Rule 53.03 has since been amended to require earlier service of the report, and to allow supplementary reports.

Note 2: The trial judge dismissed both of the appellant's motions.